Contact:
P O Box 40109
Olympia, WA 98501-6503
E-mail
The Agriculture and Health Division is comprised of 14 attorneys and 8 professional staff. The division provides legal advice and litigation services to the Department of Health and its associated boards, commissions and committees; State Board of Health; Health Care Authority; Department of Agriculture; 24 Commodity Commissions; Department of Community, Trade and Economic Development and its associated boards, commissions and committees; Department of Archaeology and Historic Preservation; Life Sciences Discovery Fund Authority; Home Care Quality Authority; Washington Commission on Pesticide Registration; and Northwest Compact on Low Level Radioactive Waste Management.
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The division provides a full range of legal representation to its clients, including both legal advice and litigation services. Work for the Department of Health involves the oversight of health care practitioners and facilities and the regulation of activities that may pose threats to human health, such as food processing, shellfish harvesting, the conveyance of public drinking water, and the disposal of radioactive materials. The division also supports Department of Health programs for community health, epidemiology and health statistics. The division advises the Health Care Authority and Public Employees Benefits Board with respect to state employees’ health care benefits and the basic health plan. The division's work with the Department of Community, Trade and Economic Development includes assisting with its outreach to other state agencies and local governments on the Growth Management Act (GMA); and providing legal advice to their business development, economic assistance, housing services, energy policy, state building code council, community services, WorkFirst, and international trade programs.
The division assists the Department of Archaeology and Historic Preservation in the review of archaeological site permitting, civil enforcement of permit requirements and in the designation and protection of historic resources in Washington. The division assists the Department of Agriculture in eradicating and controlling serious plant and insect pests (such as Spartina, Sudden Oak Death, Gypsy Moth, and Citrus Longhorned Beetle), protecting animal health, overseeing food safety in, and protecting the economic viability of, agricultural commodities, and enforcing the grades and standards laws related to shipping and exporting billions of dollars worth of Washington’s agricultural products.
The division assists the Life Sciences Discovery Fund Authority, as a new agency, in its formation and organization in compliance with state laws and in the administration of grants to foster advances in life science research and development of bioscience industries in Washington.
The division advises and represents its client agencies in their implementation of legislative initiatives to promote community and economic development, improve public health and safety, prevent environmental degradation and streamline the regulatory process. Other major efforts include assisting our various clients in collaborative efforts to implement statewide policies. For instance, the division provides advice to the Department of Health, Board of Health, Department of Agriculture, and the Department of Community, Trade and Economic Development’s Office of Energy in their emergency preparedness planning, responding to emerging diseases and other health emergencies, including chemical and radiological emergencies, and planning for energy emergencies. The work with the Department of Agriculture and the Office of Energy includes assisting in the administration of grants and development of alternative sources of energy and fuel.
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Most of the division’s litigation caseload involves administrative disciplinary actions against health professionals. While the number of cases has remained relatively constant, the hearings have become increasingly complex. In addition, there are increasing numbers of cases involving the placement and construction of new health care facilities through the certificate of need process and actions against the licenses of other facilities. The Department of Health and the Health Care Authority continue to work on initiatives to address access to health care and rising health care costs, particularly for prescription drugs.
The Department of Agriculture is responsible for controlling plant and insect pests that threaten the state’s agricultural commodities, regulating the private application of pesticides, controlling and isolating diseased animals, and helping to ensure a clean and safe food supply. With the increase in inspection and enforcement actions that involve personal and real property, the division is encountering increasing tensions related to private property interests and environmental concerns.
The Department of Health and the Department of Agriculture are key agencies in assisting the Governor in emergency preparedness for a variety of events, including pandemic flu, avian influenza, West Nile Virus, chemical and radiological events, and animal health emergencies. The Office of Energy in the Department of Community, Trade and Economic Development is also involved in preparing for emergencies which damage the energy infrastructure. The division continues to assist these agencies with legal issues in preparing for, and responding to, agricultural, health and energy emergency events.
In the last year, the division’s work for the Department of Community, Trade and Economic Development included an increase in litigation activity in growth management; increased work advising on international trade, including the Governor’s Advisor for Trade Policy; and review of economic development proposals and contracts. The Department of Archaeology and Historic Preservation was established as an agency separate from the Department of Community, Trade and Economic Development to increase its role in identifying and protecting archeological sites. The division’s work in assisting in the preservation of Indian human remains and artifacts has increased as a result of the higher profile for this important work.
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UW v. DOH & Swedish Medical Center: In 2004, Swedish Medical Center applied for a certificate of need from the Department of Health (DOH) to allow the construction of a liver transplant center. The University of Washington (UW) operates the only liver transplant center in a region comprised of Washington and four other states. DOH determined there was a need for a second liver transplant center and granted the certificate. UW challenged DOH’s determination. In 2007, after multiple hearings, including remands from the Superior Court, the Thurston County Superior Court reversed DOH’s grant of the certificate, disagreeing with the administrative judge’s decision on an evidentiary issue. That decision was appealed directly to the Washington Supreme Court. On May 8, 2008, the Washington Supreme Court heard arguments, and on July 10, just two months after hearing arguments, issued a decision reversing the Superior Court decision and reinstating DOH’s grant of a certificate for a second liver transplant facility in the five state region.
Stormans, et al. v. Selecky, et al.: After a two year rule-making process, with thousands of public comments and testimony, the Board of Pharmacy adopted two rules on the subject of the duty of pharmacists and pharmacies to fill lawful prescriptions. The rules allowed pharmacists to refuse to fill lawful prescriptions, but required pharmacies to assure timely delivery of prescribed medications to patients. Just before the rules went into effect, a pharmacy, Stormans, Inc., and two pharmacists filed a lawsuit in Western District Court challenging the rules as violating their First Amendment Free Exercise of Religion rights, the Equal Protection and Due Process Clause, and the Supremacy Clause allegedly due to a conflict with Title VII. Plaintiffs were successful in obtaining a preliminary injunction, preventing enforcement of the rules for all Washington pharmacies and pharmacists who refuse to dispense Plan B (emergency contraceptive), but refer the patients to a nearby source for Plan B. The State and Intervenors, eight patients, appealed the grant of the preliminary injunction to the 9th Circuit Court of Appeals, which heard arguments on July 8, 2008. In the meantime, discovery continues in the pending District Court case.
American Legion Post No. 149 v. DOH & Kitsap County Health District: The American Legion Post No. 149 challenged the application of Initiative 901, which prohibited smoking in places of employment, to its members- only facility, even though it has employees. The Thurston County Superior Court held that I-901 applied to the Post as an employer, so the Post could not allow smoking in its facility. The Post appealed that decision to the Washington Supreme Court, which heard arguments on November 6, 2007. We are awaiting a decision.
EnergySolutions v. Northwest Interstate Compact: The Northwest Interstate Compact is comprised of delegates from Alaska, Hawaii, Idaho, Montana, Oregon, Utah, Washington, and Wyoming. Washington chairs and staffs the Compact, and we serve as the Compact’s legal counsel. The Compact addresses the disposal of low level radioactive waste, primarily medical waste, in the multi-state region. In April or May 2008, the Compact learned that EnergySolutions, a private radioactive waste disposal company, intended to allow the disposal of low level radioactive waste imported from Italy at its private facility located in Utah. On May 5, 2008, EnergySolutions filed a declaratory judgment action in the Utah federal district court, challenging the Compact’s authority to exclude foreign waste from the Utah disposal facility. We are defending the Compact’s authority to exclude foreign waste in this eight state region.
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Emergency Preparedness: Since the fall of 2001, the division has assisted the Department of Health in the preparation of several counter-terrorism and emergency preparedness and response plans. These include the bioterrorism plan, smallpox pre-event and post-event plans, the SARS plan, and the pandemic flu plan. Assistance and advice are also being provided on a number of legal issues arising in this area, including the preparation of templates and procedures for implementation of quarantine and isolation, consistent with state law.
West Nile Virus: In 2006, Washington experienced its first human contracted cases of West Nile Virus. The Department of Health (DOH) expects the number of human contracted case in 2007 and 2008 to be quite high based on experiences in other states. The division is assisting DOH in implementing its West Nile Virus response plan, working with county governments.
Department of Agriculture and Biofuels: The 2006 Washington Legislature established the new Energy Freedom Program to provide $21 million in loans to political subdivisions, such as ports, public development authorities and conservation districts, to jump start the bioenergy industry within Washington state. The funds are to be used in this public/private partnership program to stimulate the construction of facilities to generate energy from farm sources, including an increasing amount of Washington grown feedstock, or to convert organic matter into fuels. Funded projects include the purchase and lease of oilseed crushers, anaerobic digesters and related equipment, the construction of manufacturing and storage facilities and the development and construction of infrastructure to support the equipment and facilities. Assistance and advice are being provided on a number of legal issues that have arisen with this complex program, including assistance with structuring and documenting each individual transaction.
Life Sciences Discovery Fund: The 2005 Legislature created the Life Sciences Discovery Fund Authority (LSDFA) as a state agency that will receive $35,000,000 a year for 10 years from the tobacco settlement “bonus payments” awarded to Washington state for its leadership in the tobacco litigation. The LSDFA is to use the funds, along with private donations and other grants, to advance life sciences research and the development of the life science industry, through public/private collaboration. The division has assisted the LSDFA in training directors and employees in state government issues, such as the Public Records Act, the Open Public Meetings Act and the Ethics in Public Service Act. We have also assisted in drafting and negotiating a services agreement with the University of Washington, drafting a conflicts of interest policy and by-laws and analyzing issues related to the gift of public funds.
Department of Archaeology and Historic Preservation: Until 2005, the Office of Archaeology and Historic Preservation (OAHP) was a unit of the Department of Community, Trade and Economic Development. To give greater visibility to archaeology and historic preservation, the 2005 Legislature made OAHP into a new state agency, the Department of Archaeology and Historic Preservation (DAHP) under the direction of the State Historic Preservation Officer. DAHP has review and permitting authority under state statutes governing the preservation of historic resources and the discovery, investigation and protection of archaeological resources and human remains. DAHP also has responsibilities under federal law governing historic resources and archaeology. In 2006, DAHP adopted rules implementing its authority to impose civil penalties for statutory violations of state statutes protecting archaeological and historic resources. Division attorneys assisted DAHP in its conversion to an independent state agency and in the implementation of its civil penalty authority.
Access to Prescription Drugs: The Health Care Authority (HCA) is implementing legislative initiatives passed in 2003 and 2005 in order to make prescriptions more affordable for consumers. In 2003, a Prescription Drug Program was created with four major components — an independent Pharmacy and Therapeutics Committee, which maintains a preferred drug list for government programs purchasing health care; the Pharmacy Connections program, to match manufacturer-sponsored drug assistance programs with qualified Washington residents; the Rx Washington discount purchasing card program for low-income uninsured residents which saves 15 to 20 percent on drugs purchased through a government contracted mail order pharmacy; and an extensive Web site resource for all consumers including an on-line drug price comparison tool and other educational links. In 2005, the HCA began implementing legislation which created the Washington Prescription Drug Purchasing Consortium, a purchasing arrangement including labor organizations, small businesses, local government, consumers and others to leverage the state’s prescription drug purchasing power for the benefit of state residents.
Initiatives to Improve Health Care: Recent legislative action has directed the Health Care Authority to implement several new initiatives related to improving health care. These initiatives include a Health Information Collaborative which has been created to administer funding to assist qualified health care providers with the costs of developing electronic health records and a program which will conduct independent evidence-based reviews of new medical devices, procedures and treatments to assist government health care purchasers in deciding whether to include these new technologies in government programs.
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