OHCA The Oregon Caregiver Fall/Winter 2019

The Oregon Caregiver FALL/WINTER 2019 www.ohca.com 16 LEGAL & REGULATORY A s cities face budget challenges, they increasingly are looking at all costs through a magnifying glass. Recently, this focus has included the cost of emergency medical services (EMS). In response to this concern, as well as concerns about availability of EMS for legitimate calls, we are seeing the emergence of city ordinances imposing requirements and costs on use of EMS services, particularly, for senior care providers. Senior care providers, such as assisted living, residential care, and nursing facilities provide care to older, vulnera- ble people. Not surprisingly, these vulnerable people require emergency services at a greater rate than others in the community. Nationally, seniors account for one in three EMS calls. This makes common sense as seniors, and especially those living in care facilities, typically have higher care needs than the average citizen. Care providers must exercise reasonable precautions against any condition that may threaten the health safety and welfare of residents. When injuries from a fall are difficult to determine or when more information about a resident’s condition is needed (like an X-ray or an assessment that can only be done at a hospital), providers may need to call 911 to exercise these precautions. In all cases, resident safety is always the priority. Oregon cities have responded to the concern regarding cost and availability of EMS services in various ways. Some have been constructive and appropriate, and one actually threatens the safety of seniors living in facilities in that city. City Emergency Services Ordinances: The Good and the Bad The Good The city of Redmond adopted an ordi- nance that imposes the obligation of responsible EMS use equally on all citizens regardless of where they live. The ordinance allows any citizen to call for an ambulance without penalty three times in a calendar year. The ordinance levies a $250 fine on citizens for “non-medical call system abuse, after third abuse.” This ordinance recognizes that all residents share an obligation to both use EMS appropriately and support vulnerable citizens who may require high levels of EMS support. The city of Portland has adopted an ordinance that imposes a graduated fine on senior care facilities that use EMS solely to lift a resident when he/she has fallen to the floor. The fine does not apply if the resident also requires medical treatment, evaluation for injury, or transportation for further care. OHCA appreciated working with the city to craft the ordinance in a way that recognizes the city’s need to disincentivize calls for just lift assists while, at the same time, not disincentivizing calls that are necessary for the safety of residents. The fine system is $200 for the first offense, $450 for the second offense, and $850 for the third or more offenses within a calendar year. By starting with a small fine and moving up as more inappropriate calls come in, the ordinance is not so punitive as to discourage legitimate calls and appropriately focuses on those repeat callers that are burdening the system. Senior care facilities have the right to appeal a fine under the ordinance. The Bad The city of McMinnville adopted an ordinance in October of 2018 that imposes a fine of $1,500 on senior care facilities for EMS calls that the city deems unnecessary after the fact. This fine is significantly higher than the Redmond and Portland fines and is levied on the first offense and all future offenses. Further, the definition of what is unneces- sary is unclear and so broad as to threaten the health and safety of residents. The city may deem a call “unnecessary” if the call was for a number of reasons, regardless of if the call was requested by the facility or the resident/family. In addition, the ordinance disregards the different licensing requirements that apply to assisted living facilities versus nursing facilities, and the commensurate difference in the required staffing skill set and poses significant safety concerns for residents. OHCA believes senior care facilities should be strong contributors to their communities, including using EMS appropriately. Redmond and Portland have adopted ordinances that make sense. McMinnville did not get it right. Gwen Dayton, J.D., is the Executive VP & General Counsel at OHCA. By Gwen Dayton, J.D., Oregon Health Care Association