Oregon Imposes Rules Forcing Hospitals to Disclose Rationing

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Unnerved by ongoing severe staffing shortages at Oregon hospitals, the state has re-imposed temporary rules forcing hospitals to be public and transparent when they declare a staffing crisis and begin rationing care for patients.

The rules took effect July 29 and are to remain in place through Jan. 24 of next year. They are a continuation of temporary rules the state initially imposed this past January. 

“The new temporary rule is based not on the omicron surge and instead reflects the staffing shortages that are impacting hospital capacity now,” Jonathan Modie, an Oregon Health Authority spokesperson, told The Lund Report. He said the rules are intended to ensure that patient care continues to reflect transparency and equity, “even in resource constrained periods.” 

The rules require a hospital to post on its website and at “conspicuous locations” around the facility that it is experiencing a staffing emergency and implementing triage standards to prioritize who gets care.

They also require a hospital to disclose, on request, the triage procedures — the “crisis standards of care tool” — that it is using, and tell patients and their support people about triage decisions.

It must also promptly notify the Oregon Health Authority when it begins using crisis standards of care, and compile demographic information about each patient affected by a triage decision, including gender identity, race, ethnicity and disability.

The previous temporary rules, imposed Jan. 17, lapsed on July 15.

Immediately after the rules lapsed, executives at the St. Charles Health System in Central Oregon announced internally — but not to the public or state regulators — that they were facing an acute staff shortage. St. Charles wasn’t using the declaration in order to begin rationing care, however, as Oregon Public Broadcasting reported. Rather, the system’s leaders used the declaration to try to override the system’s state-mandated internal nurse staffing plans, protocols jointly developed by staff and management that spell out nursing assignments, procedures and staffing levels. But St. Charles quickly canceled the crisis declaration after the state objected, OPB reported.

Two weeks later, the state re-imposed the temporary rules.

The rules leave it up to hospitals rather than the government to declare when there is a staffing crisis.

But that crisis declaration decision should be made by the government, not individual hospitals, argued the Oregon Association of Hospitals and Health Systems, the industry group representing hospitals.

“If crisis standards of care do become necessary after coordinated measures to prevent that outcome have failed, we think there should be a formal declaration by the government,” wrote CEO Becky Hultberg to the state on July 28 in comments on the temporary rules.

Oregon’s entire health care system — not just hospitals — are struggling with staffing shortages, Hultberg wrote. “The system is breaking down across the continuum, from ambulances to hospitals to post-acute and more.” 

The issue of how hospitals prioritize patient care has simmered for years, but emerged as a flash point during the COVID-19 epidemic, when waves of patients threatened to swamp the availability of intensive care unit beds, ventilators and other equipment.

In 2020, the health authority issued informal crisis-of-care guidelines, which it elaborated on in early January 2022 with more detailed voluntary guidelines. A group of state lawmakers quickly responded, urging the agency to impose rules that have the force of law to ensure that short-staffed hospitals don’t discriminate against patients who are elderly, developmentally disabled, suffering from chronic illness or are members of minority communities.

The state health authority should impose “a clear set of standards coupled with transparency, open communication and simple data collection will benefit all parties and will inform the longer-term discussion about health equity,” wrote the lawmakers, Sen. Sara Gelser Blouin, D-Corvallis; Sen. Elizabeth Steiner Hayward, D-Portland; Rep. Maxine Dexter, D-Portland; ​​Rep. Rachel Prusak, D-Tualatin; and Rep. Lisa Reynolds, D-Portland.

The temporary state rules imposed in January and re-issued on July 29 largely do that.

While the rules were initially imposed due to an omicron surge, Modie said, “Since that time the numbers of COVID hospitalizations have decreased, but hospitals are still facing capacity challenges due to a combination of issues.”

According to the health authority, those issues include:

  • Hospitals are still treating more than 400 COVID patients across the state.
  • Hospitals are seeing more non-COVID patients who delayed routine care throughout the pandemic and now those patients’ medical needs have grown more urgent and more acute.
  • Hospitals are having difficulty discharging patients because long-term care facilities and community-based outpatient providers have their own staffing challenges.
  • Hospital staff are worn out from the past 28 months of pandemic and some staff have left as a result of this.
  • Federal funds to pay for temporary staff are no longer available.
  • As COVID infections rise, hospital staff are also getting exposed or infected and that impacts their ability to work.

Oregon’s hospitals each have their own internally developed protocols for how they prioritize patients for, for example, ICU care, in the event there aren’t enough beds or staff for all who need one. Hospitals are supposed to obey state and federal laws barring discrimination based on race, disabilities, age and other factors. But hospitals keep their triage protocols to themselves.

The temporary rules require hospitals to make those public, including to the affected patient, if they implement them.

The rules follow several years of wrangling between the state and advocates for people with disabilities, who fear that doctors at some Oregon hospitals have allocated ICU beds, ventilators and other equipment improperly taking into account a patient’s disabilities, pre-existing medical conditions or chronic illness that may shorten their long-term lifespan.

Disability Rights Oregon told the Oregon Health Authority in 2020 that the state must ensure that people with disabilities, or who are elderly or from communities of color, are guaranteed the same rights as others to crisis health treatment. A hospital shouldn’t deny someone critical care on the assumption that after discharge, the person might, due to other illnesses, have a low quality of life or just a short time left to live, the advocacy group argued.

You can reach Christian Wihtol at [email protected].

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