Or. Admin. Code § 411-054-0037

Current through Register Vol. 63, No. 10, October 1, 2024

Section 411-054-0037 - [Effective until 12/27/2024] Acuity-Based Staffing Tool

(1) DEVELOP AND MAINTAIN ACUITY-BASED STAFFING. Facilities must select and implement an acuity-based staffing tool (ABST) that is technology-based for determining appropriate staffing levels. Individual resident needs and care elements must be the primary consideration when developing and maintaining an ABST. Regardless of the ABST adopted, all requirements set forth in this rule and OAR 411-054-0034 (Resident Move-in Evaluation) must be met. Facilities shall:

(a) Select and implement the Department's developed ABST or submit a proprietary ABST to the Department for approval as outlined in paragraph (2) of this rule.

(b) Accurately capture care time and care elements that staff are providing to each resident as outlined in each individual service plan. Established care time must be resident specific, rather than a predetermined average.

(c) Develop a staffing plan for each shift, that meets the scheduled and unscheduled needs of all residents.

(d) Develop ABST reports and posted staffing plans that reflect distinct and segregated areas as outlined in OAR 411-054-0070(1).

(e) If applicable, determine ABST time for residents on a Specific Needs Settings Contract and residents not on a Specific Needs Setting Contract to build posted staffing plan as outlined in this rule.

(f) Develop written policies and procedures to accurately and consistently implement the ABST. The policy must explain how a facility evaluates and accounts for both scheduled and unscheduled resident needs.

(g) Provide the relevant ABST information for a specific resident if requested by the Department, that specific resident, that specific resident's legal representative, or the Long-Term Care Ombudsman.

(2) PROPRIETARY ABST. A facility that chooses to use a proprietary ABST must implement a Department-approved ABST that meets this rule.

(a) REQUIRED ELEMENTS. The proprietary ABST the facility adopts must meet the following requirements:

(A) Address and document all individual ABST care elements outlined in paragraph (3) of this rule.

(B) When calculating total time, the ABST must include the care elements for each resident and staff time needed to complete each individual care element.

(C) Ensure the ABST can produce a report that identifies all residents currently residing in the facility, the care elements for each of the residents, and the staff time required to complete each care element for each resident.

(D) Ensure the ABST can present the total time, in minutes, required to meet the scheduled needs for all residents, 24 hours a day, seven days a week, preferably per shift, per day.

(E) Identify the date the resident's ABST evaluation was last completed.

(F) If applicable, determine ABST time for both residents on a Specific Needs Contract and residents not on a Specific Needs Contract to build posted staffing plans as outlined in this rule.

(b) PROPRIETARY ABST REVIEW REQUEST. If a facility proposes to use a proprietary ABST, the facility must submit the ABST Proprietary Department Review Request (PDRR) Form, including but not limited to the following:

(A) All facilities which currently have implemented a proprietary ABST must submit a PDRR Form no later than August 31, 2024. Facilities which do not submit a request on or before August 31, 2024, will be subject to corrective action as outlined in paragraph (9) of this rule.

(B) Completed ABST PDRR Form.

(C) Sample ABST report displaying all the ABST care elements listed in paragraph (3) of this rule, and the estimated staff time needed to complete each care element, shown per day, in minutes. Although not required, it is preferred that staff time be shown per shift, per day, in minutes.

(D) The facility's ABST policy required under OAR 411-054-0025(7)(i).

(c) ABST SUMMARY STATEMENT. If the proprietary review request is approved, a facility must develop and maintain an ABST Summary Statement. The summary statement must be available upon request by the Department. An ABST summary statement must contain a general guide of how the ABST functions, as outlined on the PDRR form.

(d) DEPARTMENT REVIEW OF PROPOSED PROPRIETARY ABST REQUEST. The Department will review and either approve or deny the facility's proprietary ABST. The Department may request additional documentation, potentially including a virtual demonstration, to make the determination. If the ABST is deemed to not meet this rule, the Department may deny or rescind approval at any time.

(e) APPEALS PROCESS. The Department will determine whether to approve or deny the request. If the proprietary ABST is denied or rescinded, the facility is entitled to a contested case hearing pursuant to ORS chapter 183. Prior to a contested case hearing, the facility may request an informal conference.

(f) ANNUAL STATEMENT. Once approved, the facility must provide the Department an annual statement attesting no substantive changes have occurred to the design of the facility's proprietary ABST that impacts its functionality. The facility must submit statements to the Department every year, between January 1 and March 31.

(g) If the facility makes substantive changes to the design of its proprietary ABST that impacts the ABST's functionality and if such changes would make the information submitted in support of its approval inaccurate or invalid, the facility must re-submit the ABST PDRR Form as described in this rule to the Department for review prior to implementing the new or revised ABST.

(3) ABST CARE ELEMENTS. The required ABST care elements include activities of daily living and other tasks related to resident care and services, as outlined in OAR 411-054-0030, 411-054-0034, and 411-057-0160. If any individual care element requires more than one staff, additional time must be accounted for as described in 411-054-0070(1). The ABST must individually address and document the care time required to complete each of the following individual ABST care elements:

(a) Personal hygiene.

(b) Grooming.

(c) Dressing and undressing.

(d) Toileting, bowel, and bladder management.

(e) Bathing.

(f) Transfers.

(g) Repositioning.

(h) Ambulation.

(i) Supervising, cueing, or supporting while eating.

(j) Medication administration.

(k) Providing non-drug interventions for pain management.

(l) Providing treatments.

(m) Cueing or redirecting due to cognitive impairment or dementia.

(n) Ensuring non-drug interventions for behaviors.

(o) Assisting with leisure activities, assist with social and recreational activities.

(p) Monitoring physical conditions or symptoms.

(q) Monitoring behavioral conditions or symptoms.

(r) Assisting with communication, assistive devices for hearing, vision, and speech.

(s) Responding to call lights.

(t) Safety checks, fall prevention

(u) Completing resident specific housekeeping or laundry services performed by care staff.

(v) Providing additional care services. If additional services are not provided, this element can be omitted.

(4) FREQUENCY OF UPDATES. Facilities must complete or update and review the ABST evaluation for each resident according to the following schedule.

(a) Before a resident moves in.

(b) Whenever there is a significant change of condition as defined in OAR 411-054-0040(1)(b).

(c) No less than quarterly at the same time the resident's service plan is updated as required by OAR 411-054-0034.

(5) DEVELOP AND MAINTAIN UPDATED POSTED STAFFING PLAN. Each facility should use the results of an ABST to develop and routinely update the facility's posted staffing plan. The staffing plan must outline the staffing numbers required to meet the scheduled and unscheduled needs of all residents in the facility, for each shift. The ABST and staffing plan must be reviewed at the frequency required in paragraph (4) of this rule. The facility must review the following and ensure accuracy between the posted staffing plan and ABST:

(a) The total ABST care time required for the individual care elements as referenced in paragraph (3) of this rule.

(b) Staffing plan must account for unscheduled care needs.

(c) Documentation of consistently staffing to meet or exceed the posted staffing plan 24 hours a day, seven days a week.

(d) The staffing requirements outlined in OAR 411-054-0070(1).

(e) Any other applicable factors to be considered. (e.g., disruptions to normal facility operations.)

(f) Time for paid or unpaid staff meal breaks must be accounted for and should not be included in the total scheduled staff time per shift.

(g) Distinct posted staffing plans for segregated areas as outlined in OAR 411-054-0070(1) to meet the scheduled and unscheduled needs of residents who reside in each segregated area.

(h) The staffing needs required under the Specific Needs Contracts, if applicable.

(6) ABST REPORTING OF SPECIFIC NEEDS CONTRACTS AND EXCEPTIONAL PAYMENTS. Staffing required by a Specific Needs Contract (Contract), as described in OAR chapter 411, division 027, must be included in a facility's ABST.

(a) If all residents within the facility are receiving service through a Contract:

(A) The facility's staffing plan must include the number of staff required by the Contract and additional staff time, if required to meet the scheduled and unscheduled needs of the residents.

(B) If the ABST staffing analysis indicates numbers higher than the Contract, the facility must staff to the numbers indicated by the ABST.

(b) If certain residents within the facility are served under Contract, and other residents are not served by a Contract:

(A) The facility must maintain a posted staffing plan that includes the staffing required for residents served by the Contract as well as the staffing required for residents not served by the Contract.

(B) The facility must prepare two distinct ABST reports: one for residents served by the Contract and the other for residents not served by the Contract.

(C) If the ABST indicates higher staffing numbers than the Contract for residents who are served by the Contract, the facility must staff to numbers indicated by the ABST.

(c) If the facility has any residents funded by an exceptional payment, as provided in OAR 411-027-0050, that must be included in the ABST and the facility must staff to the greater of the exception or the ABST.

(7) ABST DOCUMENTATION: Each facility must be able to provide the Department with the following documentation, including but not limited to:

(a) Current ABST report.

(b) ABST staff time necessary to meet the scheduled needs of residents daily, in minutes, preferably per shift, per day.

(c) The date the last ABST evaluation for each individual resident was completed.

(d) The facility's proprietary ABST Summary Statement.

(e) Upon request from the Department, the facility shall provide the Department ABST Proprietary Review Request form documenting the department's approval.

(f) The staffing needs required under the Specific Needs Contracts or Exceptional Payments, if applicable.

(8) REVIEW BY DEPARTMENT.

(a) The Department is required to assess facility staffing levels using the facility's Department-approved ABST each time the Department conducts a survey or an investigation into a complaint regarding:

(A) Resident abuse;

(B) Resident injury;

(C) Resident safety; or

(D) Staffing levels.

(b) The Department must confirm the facility is using a Department- approved ABST that meets the requirements established in this rule. This includes verifying whether the facility is:

(A) Consistently meeting the scheduled and unscheduled needs of all residents 24 hours a day, seven days a week.

(B) Consistently updating staffing levels at the frequency required by paragraph (4) of this rule.

(C) Consistently staffing to the posted staffing plan as required by paragraph (5) of this rule.

(9) REQUIRED REGULATORY ACTION.

(a) The Department is required to take the following actions if it determines the facility:

(A) Has not selected and implemented an ABST, the Department will require the facility to adopt and implement the ODHS ABST until the facility selects and implements either the Department's ABST or a Department approved proprietary ABST.

(B) Is not meeting the scheduled and unscheduled needs of all residents 24 hours a day, seven days a week, the Department shall place a license condition in accordance with OAR 411-054-0110(3)(a), (b), (c) or (f). The facility will be monitored for continued compliance.

(b) The Department may issue corrective action in accordance with OAR 411-054-0106 to compel compliance if the facility is not:

(A) Consistently staffing to the levels, intensity and qualifications indicated by the ABST.

(B) Updating the posted staffing plan to meet the scheduled and unscheduled needs of all residents.

(C) Updating the ABST for all residents at required frequencies, as outlined in paragraph (4) of this rule.

(D) Accurately capturing the care element time in the ABST based on the typical time taken to complete the task for each individual resident.

(E) Accurately capturing the care being providing by staff or outlined in the resident's personal service plan.

(F) Using a Department-approved ABST.

Or. Admin. Code § 411-054-0037

APD 58-2021, temporary adopt filed 12/23/2021, effective 1/1/2022 through 6/29/2022; APD 27-2022, adopt filed 06/15/2022, effective 6/24/2022; APD 29-2024, temporary amend filed 06/21/2024, effective 7/1/2024 through 12/27/2024

Statutory/Other Authority: ORS 410.070, 443.450 & 443.738

Statutes/Other Implemented: ORS 443.400 - 443.455, 443.738, 443.991 & 678.710