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AGO 2013 No. 3 - August 21, 2013
AGO Opinion Header Image
Bob Ferguson | 2013-2016 | Attorney General of Washington

DISTRICT, PUBLIC HOSPITAL—HOSPITALS—PUBLIC FUNDS—HEALTH—CONTRACTS—Whether A Public Hospital District Violates RCW 9.02 If It Contracts With A Provider Of Health Care Services That Declines To Provide Certain Services

A public hospital district that provides, directly or by contract, maternity care benefits, services, or information to women, through any program administered or funded in whole or in part by the district, must also provide the substantially equivalent benefits, services, or information required by RCW 9.02.160 and .100.

August 21, 2013

The Honorable Kevin Ranker
State Senator, District 40
PO Box 40440
Olympia, WA   98504-0440
  Cite As:
AGO 2013 No. 3


Dear Senator Ranker:

By letter previously acknowledged, you have requested our opinion on the following question:

Does a public hospital district violate RCW 9.02 if it solely contracts with a provider of health care services that refuses to provide services or information including contraceptive care, voluntary termination of pregnancy care, and other services that relate to a patient’s fundamental rights, as described in RCW 9.02.100, and the public hospital district does not provide “substantially equivalent benefits, services, or information” with respect to voluntary termination of pregnancy care, as required by RCW 9.02.160?


BRIEF ANSWER

    Initiative 120, enacted by the people in 1991, states:  “(1) Every individual has the fundamental right to choose or refuse birth control,” and “(2) Every woman has the fundamental right to choose or refuse to have an abortion, except as specifically limited by” RCW 9.02.  RCW 9.02.100.  The state cannot “discriminate against the exercise of these rights in the regulation or provision of benefits, facilities, services, or information.”  RCW 9.02.100(4).  RCW 9.02.160 says:
  

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    If the state provides, directly or by contract, maternity care benefits, services, or information to women through any program administered or funded in whole or in part by the state, the state shall also provide women otherwise eligible for any such program with substantially equivalent benefits, services, or information to permit them to voluntarily terminate their pregnancies.

    The term “state” is defined for purposes of RCW 9.02 to include “municipal corporations.”  RCW 9.02.170(6).  Public hospital districts are municipal corporations.  RCW 70.44.010.

    Applying the plain language of this section, if a public hospital district provides, “directly or by contract, maternity care benefits, services, or information to women,” through any “program administered or funded in whole or in part by the” district, the district must also provide the “substantially equivalent benefits, services, or information” required by RCW 9.02.160.  We express no opinion on exactly how hospital districts may comply with this requirement, or what constitutes “substantially equivalent benefits, services, or information.”  It is clear under the statute, however, that public hospital districts may not administer or fund programs to provide “maternity care benefits, services, or information to women” without also making provision for the rights secured by RCW 9.02.100 and .160.
  

BACKGROUND

A. Public Hospital Districts

    In 1945, the legislature granted local communities authority to create public hospital districts.  Each district is organized as a municipal corporation, owned and governed by the residents of the district.  RCW 70.44.010.

    The purpose of a public hospital district is to provide for the health needs of the district’s residents.  It may do so by establishing and operating a hospital.  RCW 70.44.003, .060.  A district may provide services in addition to or in lieu of hospital care, including ambulatory care, nursing homes, assisted living communities and extended care, hospice programs, home health care, community education, health maintenance organizations and insurance programs, freestanding clinics and diagnostic centers, specialized treatment, and prevention and rehabilitation programs.  RCW 70.44.003, .007, .060.  Currently, more than fifty public hospital districts operate in Washington.[1]


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    Public hospital districts are authorized to contract or join with other districts and other health care providers, including non-profit hospitals, corporations, and individual providers, to “operate hospitals and other health care facilities and to provide hospital services and other health care services” to the community.  RCW 70.44.003, .240.  Rural hospital districts also can collaborate on business related services such as management and consulting services, and property development and management.  RCW 70.44.450.

    Each public hospital district is governed by an elected board of commissioners, which is statutorily responsible for operation of its hospital affairs, including the delivery of health care services, whether the district provides services directly or by contracting with a provider.  RCW 70.44.060.  The board is required to appoint at least one superintendent, who is the chief administrative officer of the hospital and who reports to the board.  RCW 70.44.070, .080, .090.     

    Public hospital districts are supported in part by public funds, including local property tax levies, and can incur debt and sell various types of bonds for acquisition, construction, improvement, or maintenance of facilities.  RCW 70.44.060(5), (6).  Public hospital districts also typically receive revenue from their sale of services to the public (which may be paid by patients, by private insurers, or by state or federal governments).  AWPHD Legal Manual at 140.


 B. Contracts Between Public Hospital Districts And Private Hospital Operators

    Your opinion request focuses on a contract between a public hospital district in your community and a religiously-affiliated hospital operator.  While the purpose of this opinion is to provide legal analysis and not to comment on this particular transaction, the following factual background provides context for the subsequent legal analysis.

    As detailed in your opinion request letter, San Juan County Public Hospital District No. 1 has entered into an agreement with PeaceHealth, a Catholic health care corporation, to construct and operate a hospital.  Under the agreement, the district subsidizes the operation of the hospital by providing at least 95 percent of the district’s annual tax revenues, and PeaceHealth conducts all patient reviews.  The agreement allows PeaceHealth to provide only those services consistent with its religious doctrine.[2]


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Other public hospital districts in Washington either have entered or are considering entering into similar agreements.[3]


 ANALYSIS

A. Rights And Requirements Established In RCW 9.02

    RCW 9.02.100 and .160 were adopted as part of Initiative 120 (I-120) in 1991.[4]  Laws of 1992, ch. 1, §§ 1, 7.  RCW 9.02.100 declares “that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions.”  “Accordingly . . . (1) Every individual has the fundamental right to choose or refuse birth control,” and “(2) Every woman has the fundamental right to choose or refuse to have an abortion, except as specifically limited by” RCW 9.02.  RCW 9.02.100.[5]  The state cannot “discriminate against the exercise of these rights in the regulation or provision of benefits, facilities, services, or information.”  RCW 9.02.100(4).  RCW 9.02.160 provides:

    If the state provides, directly or by contract, maternity care benefits, services, or information to women through any program administered or funded in whole or in part by the state, the state shall also provide women otherwise eligible for any such program with substantially equivalent benefits, services, or information to permit them to voluntarily terminate their pregnancies.

    RCW 9.02.170(6) defines “state” to mean “the state of Washington and counties, cities, towns, municipal corporations, and quasi-municipal corporations in the state of Washington.”  Because public hospital districts are organized as municipal corporations
  

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under RCW 70.44.010, a public hospital district is the “state” for purposes of RCW 9.02.100 and .160.[6]

    RCW 9.02.160 thus requires a public hospital district to provide “substantially equivalent benefits, services, or information to permit [women] to voluntarily terminate their pregnancies” if two conditions are satisfied:  (1) the district provides, directly or by contract, “maternity care benefits, services, or information to women,” and (2) those benefits, services, or information are provided through a program that is “administered or funded in whole or in part” by the “state.”

    1. Provision Of “Maternity Care Benefits, Services, Or Information To Women”

    “Maternity care benefits, services, or information” is not defined in the RCW 9.02.  The meaning of terms used in an initiative is to be determined according to the intent of the voters, with each term construed as the average informed voter would read it.  Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 218-19, 11 P.3d 762, 27 P.3d 608 (2000); accord Washington Ass’n for Substance Abuse & Violence Prevention v. State, 174 Wn.2d 642, 278 P.3d 632 (2012).  One way to give meaning to the phrase is by referencing the state maternity care access program, enacted two years before I-120.  See RCW 74.09.760-.820 (Laws of 1989, 1st Ex. Sess., ch. 10).  That legislation defined “maternity care services” as “inpatient and outpatient medical care, case management, and support services necessary during prenatal, delivery, and postpartum periods.”  RCW 74.09.790(7).  “Support services” include “public health nursing assessment and follow-up, health and childbirth education, psychological assessment and counseling, outreach services, nutritional assessment and counseling, needed vitamin and nonprescriptive drugs, transportation, family planning services, and child care.”  RCW 74.09.790(8).

    These definitions are consistent with the ordinary use of “maternity care benefits, services, or information,” and of the dictionary definitions of those words.  “Maternity” can be defined as “relating to or effective during pregnancy, childbirth, or the first months of motherhood.”  American Heritage Dictionary Of The English Language 1083 (5th ed. 2011).  Among the numerous definitions of “care” are “to give care” and “to be concerned about.”  Webster’s Third New International Dictionary 338 (2002).  “Benefit,” in turn, ordinarily means “something that guards, aids, or promotes well-being,” or “financial help in time of sickness, old age, or unemployment.”  Webster’s at 204.  “Service” also carries numerous definitions, including “an act done for the benefit or at the command of another.”  Webster’s at 2075.  Finally, “information” means something
   

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received or obtained through informing:  “as . . . knowledge communicated by others or obtained from investigation, study, or instruction.”  Webster’s at 1160. 

    Given the existing statutes and common usage, an average informed voter would likely have understood “maternity care, services, or information” to incorporate a broad range of prenatal, childbirth, and postpartum services and information.

    Nothing in I-120 requires that a public hospital district provide “maternity care benefits, services, or information to women.”  If a public hospital district does not do so, the requirement in RCW 9.02.160 that the district provide “substantially equivalent benefits, services, or information to permit them to voluntarily terminate their pregnancies” is not triggered.  It appears, however, that many public hospital districts in Washington do offer some types of maternity care to women.[7]


    2. “Program” That Is “Administered Or Funded In Whole Or In Part By The State”

    The next question is whether a public hospital district’s subsidizing of a hospital that offers maternity care services amounts to a “program” that is “administered or funded in whole or in part by the state.”  RCW 9.02.160.  We conclude that it does.

    The meaning of “program” in RCW 9.02.160 includes a public hospital district’s funding or administration of a hospital.  “Program” is not defined in RCW 9.02, so we look to the word’s ordinary meaning and dictionary definition.  Amalgamated Transit Union, 142 Wn.2d at 219-20; see also Michaels v. CH2M Hill, Inc., 171 Wn.2d 587, 601, 257 P.3d 532 (2011) (undefined terms in a statute are given their common dictionary meanings unless there is strong evidence the legislature intended something else).  The dictionary meaning of “program” is extraordinarily broad, encompassing everything from “a schedule or system under which action may be taken toward a desired goal,”[8] to “[a] system of services, opportunities, or projects, usually designed to meet a social need[.]”[9]  This breadth of use is reflected in the Revised Code of Washington, where “program” is used over 4,000 times and in many ways, referring to (among other things)
 

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a division of government,[10] a set of regulations,[11] a funding mechanism,[12] and direct services to citizens.[13] Because “program” is used in many ways and nothing on the face of RCW 9.02.160 suggests a narrow construction here, we give the word its ordinary, broad meaning.  See RCW 1.12.010 (“The provisions of this code shall be liberally construed, and shall not be limited by any rule of strict construction.”).  Applying that plain meaning, we conclude that where a public hospital district administers or funds the provision of “maternity care benefits, services, or information,” the district is engaged in a “program” under RCW 9.02.160.  It is a “program” even if the funds provide only a portion of the cost of the benefits or services and regardless of whether the maternity care is provided directly or by contracting with a health care provider.

    Some commenters have suggested that the legislative history of I-120 should override this plain language approach because, in their view, RCW 9.02.160 was intended to apply only to benefit programs administered or funded in whole or part by the State of Washington—programs such as Medicaid or the Washington State Basic Health Program.[14]  We cannot accept this argument, not only because it is contrary to the plain language of the statute, which defines “state” to include “counties, cities, towns, municipal corporations, and quasi-municipal corporations,” but also because there is legislative history suggesting that RCW 9.02.160 was intended to apply to programs funded by any of these entities.[15] The point here is not that this legislative history dictates the definition; it is simply that the legislative history is too unclear to override the statute’s plain language.  And in any event, Washington courts have recognized that it is unnecessary to resort to legislative history or other construction aids unless, after a plain meaning analysis, the statute remains ambiguous.  Campbell & Gwinn, 146 Wn.2d at 12.
 

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    It therefore follows that if a public hospital district contracts for the provision of maternity care benefits, services, or information to women, and subsidizes those benefits through public funds, it is required to provide the substantially equivalent benefits, services, or information required by RCW 9.02.160.


    3. The “State” Shall Not “Discriminate Against” The Rights Established In RCW 9.02

    Our conclusion as to the meaning of RCW 9.02.160 is bolstered by RCW 9.02.100.  RCW 9.02.100 declares:  “(1) Every individual has the fundamental right to choose or refuse birth control,” and “(2) Every woman has the fundamental right to choose or refuse to have an abortion, except as specifically limited by” RCW 9.02.  The state cannot “discriminate against the exercise of these rights in the regulation or provision of benefits, facilities, services, or information.”  RCW 9.02.100(4).[16]  A public hospital district that provides “maternity care benefits, services, or information to women” while refusing to provide the “substantially equivalent benefits, services, or information” required in RCW 9.02.160 violates both that section and RCW 9.02.100(4), because the district effectively discriminates against the fundamental rights protected by RCW 9.02.100.

    It is worth reiterating that I-120 does not require that a public hospital district provide “maternity care benefits, services, or information to women.”  A public hospital district does not violate RCW 9.02.160 by choosing not to provide such benefits, services, or information.  But if a public hospital district provides “maternity care benefits, services, or information to women,” directly or by contract, then it must also provide the “substantially equivalent benefits, services, or information” required in RCW 9.02.160.  A public hospital district cannot avoid the requirement of RCW 9.02.160 by delegating management responsibility to an administrator under RCW 70.44.060—whether that administrator is an individual or a corporate health care system—both because RCW 9.02.160 precludes a public hospital district from doing by contract what it cannot do directly and because the board of commissioners of a public hospital district remains legally responsible for operations and policy.  RCW 70.44.060; AWPHD Legal Manual at 48-49.  You have not asked—and we express no opinion as to—whether a
 

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public hospital district that wishes to contract with a provider to manage its hospital and to provide maternity care services and benefits could meet its obligations under RCW 9.02.160 by contracting with a separate provider to offer the services required under RCW 9.02.160 and .100.[17]

    In short, in the scenario you describe, where a public hospital district provides “maternity care benefits, services, or information to women” and fails to provide the “substantially equivalent benefits, services, or information” required in RCW 9.02.160, the district would violate RCW 9.02.


B. Conclusion

    In enacting I-120, the people declared “that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions” (RCW 9.02.100), and imposed certain requirements on the state to protect that fundamental right.  Our opinion here flows directly from the plain language the people adopted to secure that right.  Any disagreement with the impact of that language is an issue to be resolved by the legislature or the people.

    We trust the foregoing will be useful to you.


ROBERT W. FERGUSON
    Attorney General     

ALAN D. COPSEY
    Deputy Solicitor General

 

 



 

 

[1] Ass’n of Washington Pub. Hosp. Dists., Public Hospital District Directory, http://www.aw phd.org/Members/members_directory.aspx (last visited Aug. 19, 2013); Ass’n of Washington Pub. Hosp. Dists., AWPHD Legal Manual 31 (May 2009), available at http://www.awphd.org/Legal Manual/LegalManual.pdf.

[2] Subsidy Agreement For A Combined Clinic And Hospital Facility ¶ 1.1.16 (Mar. 16, 2009), available at http://sjcphd.org/wp-content/uploads/2011/02/PIMC-Subsidy-Agreement-Contract.pdf.  PeaceHealth, like other Catholic-affiliated hospitals, follows the Ethical and Religious Directives for Catholic Health Care Services established by the United States Conference of Catholic Bishops.  U.S. Conference of Catholic Bishops, Ethical and Religious Directives for Catholic Health Care Services (5th ed. 2009), available at http://www.usccb.org/issues-and-action/human-life-and-dignity/health-care/upload/Ethical-Religious-Directives-Catholic-Health-Care-Services-fifth-edition-2009.pdf. The Directives generally prohibit abortion and prohibit or restrict access to reproductive and end-of-life health services, counseling, and referrals.  Id. at 21, 24-26, 27, 32, 36 (Directives 36, 45, 47, 48, 52, 53,
60, 69).

[3] See, e.g., Draft Operating Agreement—United General Hospital & PeaceHealth St. Joseph. Med. Center, Exhibit G, Jan. 15, 2013, http://bloximages.chicago2.vip.townnews.com/goskagit.com/content/tnc ms/assets/v3/editorial/f/7a/f7a0103a-9747-11e2-a781-0019bb2963f4/5153a0228c5f5.pdf.pdf; PeaceHealth St. Joseph Med. Ctr., PeaceHealth – United General Hospital Alliance Date Set, July 9, 2013, http://www.peacehealth.org/st-joseph/Pages/PeaceHealth-%E2%80%93-United-General-Hospital-Alliance-Date-Set.aspx (last visited Aug. 19, 2013); Gina Cole, A healthy merger?, Skagit Valley Herald, Feb. 3, 2013, available at http://www.goskagit.com/allaccess/a-healthy-merger/article0c7cd18b-61d1-5f9b-bfa5-9cc9ff19526e.html; Letter from Mary Kay Barbieri, People for Healthcare Freedom, to Bob Ferguson, Attorney General (June 10, 2013); Skagit Regional Health, Press Release, Four responses received to Request for Proposals for partnership, May 3, 2013, available at http://www.skagitvalleyhospital.org/news/press-releases/rfpresponse/.

[4] RCW 9.02 is attached in its entirety as an appendix to this Opinion.

[5] These fundamental rights have been recognized by the Washington Supreme Court as guaranteed by the United States Constitution.  See, e.g., American Legion Post 149 v. Dep’t of Health, 164 Wn.2d 570, 600, 192 P.3d 306 (2008) (“Fundamental liberty interests include the right to marry, to have children, to direct the education and upbringing of one’s children, to marital privacy, to use contraception, to bodily integrity, and to abortion.”) (quoting Andersen v. King Cnty., 158 Wn.2d 1, 25, 138 P.3d 963 (2006) (citing Washington v. Glucksberg, 521 U.S. 702, 719-20, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997))).

[6] Where the statute defines a term, that definition prevails over a dictionary definition or common understanding of a term.  Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 220, 11 P.3d 762, 27 P.3d 608 (2000) (citing In re F.D. Processing, Inc., 119 Wn.2d 452, 458, 832 P.2d 1303 (1992)).

[7] According to the individual websites linked by the Public Hospital District Directory (http://www.awphd.org/Members/members_directory.aspx), a substantial percentage of public hospitals provide obstetrical care, birthing centers, and/or other maternal care.  At least 24 public hospitals received Medicaid payments for providing maternal care in 2011.  Laurie Cawthon, Dep’t of Soc. & Health Servs., Medicaid Managed Care Enrollment Status and Birth Outcomes by Facility of Birth for Women with Live Births in 2011 (Nov. 2012), http://www.hca.wa.gov/medicaid/firststeps/Documents/Medicaid_status_ birth_outcomes_facility.pdf (last visited Aug. 19, 2013).  One-fourth of all inpatients in Washington hospitals (private and public) are maternity patients.  Washington State Hosp. Ass’n, Utilization of Hospital Services in Washington (Mar. 2011), http://www.wsha.org/files/127/Utilization2011-01v1.ppt (last visited Aug. 19, 2013).

[8] Webster’s at 1812.

[9] American Heritage Dictionary Of The English Language 1407 (5th ed. 2011).

[10] See, e.g., RCW 43.21I (creating “Oil Spill Prevention Program” in state Department of Ecology).

[11] See, e.g., RCW 90.58 (state and local “master programs” to regulate shorelines of the state).

[12] See, e.g., RCW 39.92 (local transportation improvement funding “programs” authorized).

[13] See, e.g., RCW 72.23.025 (mental health care “programs” to be provided at Eastern State Hospital and Western State Hospital).

[14] Letter from Bradley J. Berg, Foster Pepper PLLC, to Jeffery T. Even, Assistant Attorney General (June 4, 2013) , at 3-4.

[15] See, e.g., Voters Pamphlet 15 (1991) (statement against I-120 arguing that the initiative would require “state and local governments” to pay for abortion services); Amalgamated Transit Union, 142 Wn.2d at 224-25 (statements for and against a measure published in the voters pamphlet may assist in interpreting an ambiguous term); American Legion Post 49, 164 Wn.2d at 586 (same); see also, e.g., Linda Smith, Initiative 120 – Should Abortion Laws Be Revised? – No, Seattle Times, Oct. 13, 1991, available at http://community.seattletimes.nwsource.com/archive/?date=19911013&slug=1310660 (arguing that if the initiative passed, “[a]ny maternity program funded by state, county, city, or municipal agencies must be matched with a substantially equivalent abortion program (Sec. 7)”).  Both of these arguments describe broadly the categories of governmental entities to which RCW 9.02.160 applies.  We do not suggest that a measure’s meaning is necessarily determined through the statements of its opponents, but such statements may be “considered relevant to its interpretation where its proponents have not questioned or challenged them.”  2A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 48:15 (2007).

[16] To discriminate means to “make a difference in treatment or favor on a class or categorical basis in disregard of individual merit.”  Webster’s at 648; see also CSX Transp., Inc. v. Alabama Dep’t of Revenue, __ U.S. __, 131 S. Ct. 1101, 1108, 179 L. Ed. 2d 37 (2011):

The statute does not define “discriminates,” and so we again look to the ordinary meaning of the word. . . . “Discrimination” is the “failure to treat all persons equally when no reasonable distinction can be found between those favored and those not favored.”  Black’s Law Dictionary 534 (9th ed. 2009); accord, id., at 420 (5th ed. 1979); see also Webster’s Third New International Dictionary 648 (1976) (“discriminates” means “to make a difference in treatment or favor on a class or categorical basis in disregard of individual merit”).

[17] While RCW 9.02.150 provides that no private medical facility may be required by law or contract to participate in an abortion, public hospital districts are not “private medical facilities.”  RCW 9.02.170(7).

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