11 Trial Lawyer • Winter 2023 See Guarding Against p 12 have the time to regularly shower residents, or to provide adequate food and drink, leaving residents unclean, underweight, dehydrated and with skin infections. If a patient requires extra care, for example, a resident who requires two staff people to assist in transfers or a stroke victim who is unable to feed themselves, the resident may go without care or be injured when a single staff person tries to manage the lift on their own or another staff person leaves boiling hot coffee within reach and then leaves. These examples are in keeping with what the studies of the industry reveal. Low staffing levels are considered the strongest predictor of poor nursing home quality. These examples, moreover, are not hypothetical residents. These are all real people, Oregonians, some family's loved ones, injured or killed by the impacts of low staffing. One legislative change to consider is to mandate staffing ratios, that is, the maximum number of residents assigned to each direct care staff or to mandate the minimum number of minutes of direct care each resident should receive. Establishing minimum staffing levels would be a significant step towards increasing the quality of care. Some states have minimum staffing levels. Oklahoma, for instance, requires that each resident receive 2.9 hours of direct care a day. New York has taken a more aggressive approach. New York has adopted regulations requiring nursing homes to spend 70% of the gross revenue it receives each year on direct patient care, 40% of which must be spent on resident-facing care. The law also provides that all surplus profits in excess of 5% would be paid to the New York Department of Health. Nursing homes in New York are challenging the regulation. A lawsuit is pending. Meeting needs The nursing home lobby in Oregon has fought minimum staffing levels every time it has been brought up. The lobby objects to the implementation costs and it argues staffing levels should not be set based on some “arbitrary” mandatory minimum. They argue that the status quo, which allows the facilities to make their own internal determination as to the acuity (medical needs) of the residents and what staff is required to meet those needs, is sufficient. The status quo has not worked and the Oregon Legislature has recognized that. Senate Bill 271, which passed in 2021, directs the Oregon Department of Human Services to adopt rules about the requirement for an acuity-based staffing tool that facilities must use. The tool would then recommend staffing levels, intensity of care and the qualifications of caregivers required to meet the care needs of residents, instead of leaving those decisions entirely to the hidden internal criteria used by the facilities. The new law also requires the Department of Human Services to assess the staffing levels of a facility every time the department does a survey, license renewal or investigation into a complaint relating to resident safety, and to issue specific sanctions if the staffing levels required by the acuity tool are not met. Time will tell if a mandated staffing acuity tool and mandated investigations into staffing levels will result in the better care that mandated staffing levels are known to provide. There are troubling developments on the horizon. On a state level, there are signs of “regulatory capture,” where the regulatory agency meant to regulate an industry is being co-opted to do the work for the industry. During COVID, complaints of exposed and infected employees coming to work and infecting residents were not investigated as complaints. Instead, DHS responded by providing training to the facility and facility staff at state expense. Civil penalties and other publicly available sanctions of facilities are now being presented as
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