HB 2622: An Interview with Amish Mahendra Shah, MD MPH FAAEM
Issue: May/June 2021
Authors: Amish Mahendra Shah, MD MPH FAAEM and Lisa A. Moreno, MD MS MSCR FAAEM FIFEM – President, AAEM
Dr. Amish Shah is an emergency physician (EP) and an elected member of the Arizona House of Representatives. Dr. Shah graduated from Northwestern University with both his Bachelor’s and his Medical Doctorate degrees and went on to complete an MPH at University of California, Berkeley. He did his emergency medicine residency at Lincoln Medical and Mental Health Center in the Bronx and a fellowship in Sports Medicine at the University of Arizona, Tucson. His run for the Arizona State House grew out of concerns that arose from his experiences as a practicing EP, and his work in the legislature has focused on health and education. Most recently, Rep. Dr. Shah introduced HB 2622, which has been ratified by both Houses of the Arizona legislature and signed into law by Arizona Governor Doug Ducey. A copy of the bill and Rep. Dr. Shah’s bio sketch appear at the end of this article. I recently had the privilege of interviewing Dr. Shah on his groundbreaking, and AAEM hopes, precedent-setting, legislation.
LM: Dr. Shah, would you share the context and a summary of the substance of your recently passed bill, HB 2622?
AS: Prior to my bill, Arizona had a law on the books to prevent retaliation by health care institutions against health care professionals, but that law was outdated. It was written in 2003, and since then, the marketplace has substantially changed. Now, the health care marketplace is, in many regions of the country, dominated by corporate medical groups (CMGs). Even in areas where the CMGs do not dominate the health care marketplace, they are nonetheless significantly impactful. As you know, Dr. Moreno, CMGs have contractual relationships with health care institutions and as part of these contracts, the CMG provides physician services, in some cases for more than just the ED. Those services might include radiology, anesthesiology, critical care, hospitalist services, and inpatient psychiatry, to name a few. If the health care institution has an issue with a physician, the institution does not have to fire the physician because they do not employ the physician. Instead, they voice their complaint to the CMG, which in turn, will terminate the physician or keep the physician off the schedule. Similarly, if a physician voices a concern about staffing, patient safety, or a particular policy of the CMG or the hospital that the physician believes is not in the best interest of patient care, the CMG can retaliate by terminating the physician or failing to put him or her on the schedule.
HB 2622 says that neither the health care institution nor the CMG can retaliate. A retaliatory action is not limited to termination but includes any adverse action, including taking a physician off the schedule. This bill is inclusive of all health care professionals and is not limited to physicians. My goal was to empower all health care professionals to be able to act with integrity around issues of patient safety and excellence in patient care without fear of retaliation.
LM: What prompted you to write this bill?
AS: Two things: First, a friend who is an EP was in the ED and noticed a patient safety concern: a non-medical person was watching the nursing station telemetry monitors. The EP went to the administration and expressed the above concerns. The hospital administrator then talked to the third-party staffing company and informed them that the hospital did not want that physician on the schedule anymore because that physician was “causing trouble.” The staffing company took the doctor off the schedule, and the physician contacted me to share the story. Then, you invited me to speak at AAEM Advocacy Day 2019 in Washington DC. You asked me to speak about the physician’s role in public policy making. While I was there, I learned a lot about the work that AAEM does to protect physicians who are unjustly terminated for speaking up about patient safety and workplace fairness. I met Dr. Wanda Cruz from Florida, who shared her story about being terminated after reporting to her hospital administration that inadequate physician staffing had contributed to long waiting times and a poor outcome for one of her patients. I realized that retaliation against health care personnel, specifically emergency physicians, was far more common than I had previously been aware of, and I decided to act.
I put forth a bill that allows physicians to address patient safety concerns. It also brings awareness to the public that these practices are in place. In the case of my friend’s situation, how would a patient know that they were being monitored by a non-medical person who was not trained to read a cardiac monitor? There are certain things that only the physician working in the ED would be aware of. The bill empowers these physicians to speak up about situations that only they could possibly be aware of by virtue of their work and education. And as I said, this bill is for all physicians, not just EPs, and for all health care professionals. As we know well, situations may arise that only nurses, or only respiratory therapists may be aware, and that have the potential to endanger patients or negatively impact their care.
LM: I’m genuinely happy to hear that AAEM had a role in prompting you to create this bill. It is important to us that our work makes legislators aware of the problems that exist so that legislators can work with us to enhance patient safety and workplace fairness.
AS: I have always believed that physicians have a responsibility in influencing and creating health policy, and this was a great opportunity to demonstrate the importance of such a collaboration.
LM: So, talk to me a little bit about how exactly the process works. Now that the bill has been passed in Arizona, how would an Arizona physician go about registering a concern so that she would be protected by this new law?
AS: To be protected by this law, the health care professional would make a report to the health care institution’s administration about the patient safety issue of concern. This law only protects you if you go to administration first. The new law says you have to give the institution an opportunity to respond and address the report. The law would not protect someone who posts a grievance directly onto social media or another public forum. Every institution must maintain a reporting system, and the health care professional has to use the institution’s reporting system.
LM: Okay, but what would happen if the health care professional went to a regulatory agency first, before they go to the hospital’s administration? Would they still be protected?
AS: Well, there is already a process in place for that. Regulatory agencies have what are called “whistleblower” policies that allow for anonymous reporting by any concerned person. As legislators, we need to be aware of existing federal and state legislation and avoid duplication of existing laws. But we also look at existing laws and consider whether they need to be updated to respond to circumstances that have changed over time. This was the case with my bill.
LM: There are those who would say that your bill does not go far enough. You protect health care professionals against retaliation, but you don’t, for example, spell out severe penalties for the institutions that do retaliate.
AS: (Laughs) There is a lot of statecraft that goes into writing and introducing a bill. What good would a bill do for anyone if it has no possibility of being passed into law? So in most cases, you want the bill that you drop to be reasonable, to be introduced in a way that will not unnecessarily create opposition. You can’t alienate or antagonize others without cause. You have to realize that there are powerful lobbies out there. Most organizations have lobbyists, and they spend considerable time and money protecting their interests.
One of the things I do prior to introducing a bill is called “the stakeholder process.” The legislator needs to make phone calls and have meetings with any entity that is a stakeholder with regards to the issue that we are planning to legislate. It’s important to give everyone a chance to work on a mutual solution. This is what other legislators will expect to have happened. Next, I try to get their buy-in. In this case, I explained to them that penalizing someone who is essentially a whistleblower, someone who is speaking up for the protection of the patient population, is not a good look. They won’t look good in the public eye.
LM: So, did this get buy-in from the health care institutions?
AS: Mostly yes. In undertaking the stakeholder process, you get the broader picture. Like I said, you want to craft a bill that will pass so that it can actually do some good for your constituents. So, I ask them outright, look, is this a bill that you would oppose, and if so, why? They responded that they were okay with the idea as long as I made a couple of technical changes to the bill language. The health care institutions didn’t want liability if a third-party did the firing on their own. So, I tweaked the bill to factor that in and avoid unintended consequences. I appreciated that they worked with me in good faith. With some bills, we won’t reach an agreement during the stakeholder process, and so then we would have to battle it out in committee and on the floor for the votes.
LM: And is this stakeholder process a mandatory process for lawmakers?
AS: Involving all the stakeholders is doing due diligence. It’s not mandatory, but it is likely expected from fellow lawmakers.
LM: And once you have done your due diligence and gone through the stakeholder process, you craft your proposed legislation and then you introduce it?
AS: You can, but as I said, you want a bill that has a high likelihood of being passed into law. So, you want to get other legislators to join as co-sponsors and you want to look for bi-partisan support. So, you approach your colleagues and you point out why the proposal is valuable to constituents, why it is necessary, why it will protect the public. And you let them know that it is not unnecessarily antagonistic to other stakeholders.
LM: I never realized how complicated this process is! And it takes a lot of skill. One just imagines that if you’re doing the right thing, a bill should be passed, but there is clearly a lot more involved in creating a bill that WILL pass. And it seems clear to me now that there can be a lot of value in speaking to the stakeholders. I would not have thought about the liability that a health care institution may be at risk for, even if a third-party entity is retaliating against the physician who speaks up.
AS: You learn a lot as a lawmaker, just as you learn a lot as a physician.
LM: Since we’re talking about learning, can you just walk us through the process for a bill to become a law?
AS: Sure. After the stakeholder process, crafting the bill, getting co-sponsors (including hopefully bi-partisan support), the bill goes to the committee of the relevant chamber. Once it passes committee, it is presented to the floor of the chamber in which it originated. After a vote in that chamber, then it moves to the appropriate committee of the other chamber, and then to the floor of that chamber. Finally, it goes to the Governor, who can either sign it into law or veto it. A veto by the governor can be overruled with a 2/3 vote of the legislators.
LM: I’ve learned a lot today, and this interview has reinforced my commitment to the mission of AAEM and our work to champion the EP so that the EP can do the right thing for the emergency patient. You have also reinforced my belief that physicians, and emergency physicians in particular, have a critical responsibility in advocating for the needs of our patients. I know this is part of what fueled your commitment to run for office.
AS: Absolutely. The things I’ve learned practicing emergency medicine have only reinforced my personal commitment to improve the health of our patient population through education and legislation. It is an honor for me to serve my patients and my constituency both as an emergency physician and a lawmaker.
LM: Thank you for taking the time to meet with me today and to educate us on the complex process of creating legislation and the specifics of HB 2622. AAEM hopes that the protections afforded to health care professionals in Arizona will soon be extended to many other states in the nation, and even to the entire country as a federal law. I want to thank you for all that you do to serve the citizens of Arizona and your fellow physicians. We are proud to have you as a member of AAEM!
AS: You’re very welcome. I’m proud to stand up for my profession and my specialty.