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Some hospitals allowed secrecy around ‘crisis’ care standards, others aren’t

Depending on which regulation they cite, hospitals can keep their “crisis” from regulators, patients and the public.
February 2, 2023

In November and the first half of December, Oregon hospitals were not shy about publicly declaring that a trio of respiratory viruses had filled beds and forced them to invoke “crisis standards of care” due to a lack of nurses.

Then — though many hospitals continued to operate at or near capacity — the drumbeat of such announcements suddenly ended.

The reason? On Dec. 16, state regulators told hospitals they can operate with fewer nurses and reduced standards of patient care under certain circumstances — without telling patients, the public or the state.

In 2021, the state had adopted rules letting hospitals operate under these crisis standards if the governor declares an emergency. Then-Gov. Kate Brown did that on Dec. 7 for all hospitals, which regulators explained in their Dec. 16 guidance memo.

State records show that in the week leading up to the Dec. 16 guidance memo, 14 hospitals told the state they were invoking crisis standards of care.

Since Dec. 16, however, hospitals have not sent in a single such notice, according to the state — even though into late January some hospitals were operating at 90% to 100% capacity.

As a result, exactly how many Oregon hospitals are keeping quiet that they have invoked so-called “crisis standards of care” is unclear. The state doesn’t know, according to Anna Davis, the Oregon Health Authority’s health facilities survey manager. 

But some observers, including current and former lawmakers, say hospitals should be more transparent when they operate under crisis standards due to nursing shortages.

“If staffing ratios are impacting the quality of care, the public has every right to know, and hospitals should be disclosing that,” said Jake Cornett, executive director of Disability Rights Oregon.

The situation comes as the 2023 Oregon Legislature focuses on nurse staffing and hospital finances.

Whether or not hospitals must alert the public and patients about reduced care standards is driven by how various rules, laws and declarations have evolved and intersected since the pandemic began. The result is a muddle.

The state now has two very different crisis standards of care: One, for nurse staffing shortages, lets hospitals — without telling patients, the public or the state — increase the number of patients a nurse must care for beyond the hospital’s nurse staffing plan. The other, the so-called “triage” crisis rule, relates to life-saving resources such as intensive care units, and requires the hospital to quickly tell patients, the public and the state if the hospital is short of such resources and is rationing their use.

“There was definitely confusion among the hospitals and among the nursing staff,” Davis said of the recent change in crisis standards reporting practices.

The Oregon Nurses Association, which has pushed for a stricter state law to set nursing staffing levels, views the hospitals’ recent crisis declarations as a way to avoid complying with existing staffing standards.

The 2021 nurse-staffing crisis standards rule “gave the hospitals an out … there’s no public reporting mechanism… it’s changed some of that transparency,” said Matt Calzia, the union’s director of nursing practice and professional development.

Tug of war over patient notification, legal protection

The term “crisis standards of care” refers to rules guiding the rationing of health care in times of crisis, when scarce resources increase the likelihood of bad outcomes. The standards help guide life-and-death decisions that are at odds with prevailing standards of care, while also having the effect of establishing some legal protection for providers.

In 2018, the state adopted rules for crisis standards of care, only to shelve them because they didn’t protect disabled and other patients from discrimination.

In December 2020, the state issued general guidelines for “resource-constrained events” but stopped short of the detailed guidance and governor-declared crisis declaration that hospitals had called for. 

Throughout the pandemic, hospitals repeatedly pushed Brown to declare crisis standards statewide, as occurs in other states, rather than relying on hospitals to declare their own crisis. This change would have afforded hospitals and caregivers additional protection against lawsuits over substandard care.

They also have expressed concern that public declarations by hospitals could discourage patients from seeking care.

Meanwhile, separately, in 2021, the state issued rules letting hospitals decide for themselves if they had a staffing crisis and to temporarily override nurse staffing plans without telling the public or the state.

Then one year ago, the state issued a new, interim draft guidance leaving hospitals to declare their own “critical care resources” crisis standards, and lawmakers successfully urged changing that to require patients be notified when a hospital does this.

The rules let hospitals invoke “crisis standards of care” if they expect their “critical care resources” — for example ICUs — will be unable to handle all the patients who need care. It lets hospitals “triage” or ration critical care by prioritizing the most urgent cases. This rule doesn’t let hospitals deviate from their formal nurse staffing plans, despite many hospital staff interpreting it that way. Rather, it authorizes a hospital to begin using a state-sanctioned process to fairly and objectively decide who gets critical care such as ventilators or ICU beds. 

Hospitals that invoke that type of “crisis standards of care” must within 24 hours alert the Oregon Health Authority and post notices in facilities as well as on the hospital’s website.

In July, shortly after those interim rules expired, executives at the St. Charles Health System in Central Oregon announced internally — but not to the public — that they were facing an acute staff shortage and were operating under crisis standards, as Oregon Public Broadcasting reported. St. Charles wasn’t using the declaration to ration equipment, but to override the system’s state-mandated internal nurse staffing plans. After the state objected, St. Charles quickly canceled its crisis declaration, OPB reported. Two weeks later, the state re-imposed the temporary rules.

In a written comment on the rules, the industry group representing hospitals, the Oregon Association of Hospitals and Health Systems, again argued that a crisis declaration should be made by the government, not individual hospitals.

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

Notification not required when nurse staffing is the cause

Under the so-called “nurse staffing” crisis rule adopted by the health authority in 2021, hospital administrators can, unilaterally and without public notice, deviate from their state-mandated nurse staffing plans — for example, by increasing the number of patients a nurse must care for. One legal threshold to use that regulation is for the hospital to make a generic declaration that the hospital is invoking “crisis standards of care” due to the “emergency.” Also needed is a governor’s declaration of a hospital emergency. In November, then-Gov. Brown did so for pediatric hospitals, saying she’d make more state-hired nurses available to respond. She expanded the emergency to adult hospitals the following month.

All told, Oregon has 60 acute-care hospitals. Since November, the state has received 19 notifications of crisis standards of care. 

Early on, many of the hospital filings invoked “triage” standards requiring public and state notification:

  • On Nov. 22, Randall’s Childens Hospital at Legacy Emanuel Medical Center, invoked the “triage” crisis standards in its neonatal and pediatric Intensive Care Units. On Dec. 9, Legacy declared a triage crisis for ICUs in five of its other hospitals: Legacy Emanuel, Legacy Silverton, Legacy Mt. Hood, Legacy Meridian Park and Legacy Good Samaritan.
  • Adventist Health Tillamook on Dec. 9 also declared “triage” care for its emergency room, med-surg, and ICU.

Many more facilities declared crisis standards under the nurse-staffing rule, meaning they need not inform the state. But some did so anyway:

  • On Nov. 21 Oregon Health & Science University Doernbecher Children’s Hospital activated crisis standards for inpatient pediatric acute care, pediatric ICU and its pediatric emergency department.
  • On Nov. 23 Providence St. Vincent Medical Center activated crisis standards for pediatrics and its pediatric ICU.
  • On Dec. 9 OHSU added its adult ICU, emergency department and acute care.
  • That same day Tuality Hillsboro Medical Center declared crisis standards for its acute care, ICU, emergency department, labor and delivery, neonatal ICU and pediatrics.
  • On Dec. 15, Columbia Memorial Hospital activated crisis care for a range of units.
  • On Dec. 16, Asante Rogue Regional Medical Center and Asante Three Rivers Medical Center declared crisis standards for a wide range of units.

Some hospitals cited both regulations. 

Meanwhile, several hospitals told the state they were entering crisis care standards, but did not say which units were affected or tell the state whether it was caused by critical care triage or nurse staffing. Those included Curry General Hospital (Nov. 30), Providence Portland (Dec. 2) and Adventist Health Portland (Dec. 9).

Two of the hospitals, Curry and Providence Portland, subsequently rescinded their declarations.

Notifications ceased

As more hospitals struggled with staff shortages and virus caseloads, the discussion about “crisis standards of care” became so muddled that on Dec. 16 the Oregon Health Authority issued clarifying information explaining to hospitals the two separate regulations and that only the triage rule required notification to the state.

After that the notifications ceased.

OHSU, in fact, took down the notification it had posted for the public on its website, which had warned, “Right now, some areas of this hospital have more patients than we can care for in the ways we normally do.”

Asked why, an OHSU spokesperson cited the state’s Dec. 16 guidance, saying the state “updated the state’s rules around when and how hospitals notify the public about crisis standards of care.” 

One hospital official, speaking on condition of anonymity, said the notifications were considered a necessary step to ask the state to send help to beleaguered facilities in the form of state-funded nurses, as Brown had promised with her emergency declarations in November and December.

But while the Oregon Health Authority did help the struggling hospitals by sending 370 state-funded nurses, those assignments covered only a fraction of the 1,543 nurses hospitals said they needed.

Under the 2021 nurse-staffing regulation, the governor’s emergency declaration allows hospitals to override their mandated nurse-staffing plans for up to 90 days.

Rachel Prusak, a now-former Democratic lawmaker who represented Tualatin and West Linn while chairing the House Health Care Committee, had co-signed a January 2022 letter urging the state to require hospitals to notify patients when invoking “triage” crisis standards for ICUs and other equipment.

She said she hadn’t been aware that hospitals could avoid notifying the public if they were invoking nurse staffing crisis standards. Research shows that low nurse staffing also endangers patient care, so whatever the reason crisis standards are invoked, “I still believe the public should be made aware” when care is affected, Prusak told The Lund Report.

Rep. Maxine Dexter. D-Portland, who also co-signed the earlier letter, echoed Prusak, saying she would explore the matter.

The state hospital association declined to address questions about when the public should be notified of crisis standards. But given the slew of notifications hospitals have filed with the state, it is “abundantly clear that Oregon hospitals are continuing to struggle with staffing on many levels” association spokesperson Lisa Goodman said. “We have important work ahead of us this legislative session to find policy solutions that address the workforce crisis, stabilize hospitals’ operations and preserve patients’ access to care.”

You can reach Christian Wihtol at [email protected].

You can reach Nick Budnick at [email protected] or at @NickBudnick on Twitter.