Is an online CPR Class Really an Immediate Jeopardy?
Is an online CPR Class Really an Immediate Jeopardy?
The Colorado Department of Public Health and Environment (CDPHE), Health Facilities and Emergency Medical Services Division (the “Division”) has begun issuing Immediate Jeopardy deficiencies for assisted living residences whose staff has been issued CPR and first aid certificated from online training venues.
As we have discussed in other articles, the Department’s regulations define Level E (Immediate Jeopardy) deficiencies as
. . . actual or potential for serious injury or harm for one or more residents.
6 CCR 1011-1, Chapter 7, Section 3.11, Citing Deficiencies.
The applicable regulations are found in 6 CCR 1011-1, Chapter 7, (“Chapter 7”) Sections 8.5 – 8.11, First Aid, Obstructed Airway Technique and Cardiopulmonary Resuscitation Trained Staff.
In particular, Chapter 7 requires that staff is certified in first aid, CPR and obstructed airway techniques from a nationally recognized organization.
8.6 Each assisted living residence shall have at least one staff member onsite at all times who has current certification in first aid from a nationally recognized organization such as the American Red Cross, the American Heart Association, National Safety Council, or American Safety and Health Institute. The certification shall either be in Adult First Aid or include Adult First Aid.
8.7 Each assisted living residence shall have at least one staff member onsite at all times who has current certification in cardiopulmonary resuscitation (CPR) and obstructed airway techniques from a nationally recognized organization such as the American Red Cross, the American Heart Association, the National Safety Council or the American Safety and Health Institute. The certification shall either be in Adult CPR or include Adult CPR.
6 CCR 1011-1, Chapter 7, Section 8.6 and 8.7.
The Colorado regulations addressing CPR and First Aid training for assisted living staff do not specify that these training activities take place in-person, and each, Red Cross, the National Safety Council, and American Heart Association offer virtual learning and certification.
Many assisted living providers are aware of these online certifications and are mystified as to how compliance with the written regulations is now seen as non-compliance of sufficient egregiousness that there is now an “actual or potential for serious injury or harm for one or more residents.”[1]
A health department official recently explained this new idea of risk to a group of providers by pointing out that Chapter 7 also requires compliance with all federal laws. He was referring to the following:
Assisted living residences, as defined herein, shall comply with all applicable federal and state statutes and regulations including, but not limited to . . .
6 CCR 1011-1, Chapter 7, Section 1.2
And from this limited section, we are told, the Department has concluded that OSHA (the Occupational Safety and Health Administration), standards apply, and that those standards, the OSHA standards, require in-person training.
OSHA per the Department official, has determined that online training is insufficient because the “students” cannot demonstrate proficiency of the skills.
Thus, assisted living staff that obtains CPR, first aid, and obstructed airway training has failed to meet the Department’s standards and are guilty of putting the assisted living residents in immediate jeopardy, at risk of potential serious harm.
Unfortunately, that is not what the OSHA regulations require.
What Do The OSHA Standards Require?
Interestingly, the OSHA regulations also do not specify that online training is inadequate. The OSHA regulations for first aid training in general industry provide:
In the absence of an infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. Adequate first aid supplies shall be readily available.
When we speak to assisted living providers about this they immediately ask, “If it is not in the OSHA regulations, what is the Department doing?” Unfortunately, the answer to that question is not clear.
Nonetheless, even if there is some sentence buried in the federal regulations to support the Department’s viewpoint, if challenged on this, they will be required to prove by preponderance of the evidence that an immediate jeopardy exists for the residents.
The Department has come to realize that they may be challenged on this point and has attempted to retroactively justify their position via an email notice of “Guidelines” sent to many, but not all providers on 7 November 2022.
Over the past 2 months, the Department has cited ALRs for non-compliance in this area more than 25 times, primarily for having staff that has training documentation from an organization that is not nationally recognized, with the express concern being documentation from organizations that do not have an observed demonstration of skills (whether in-person or remote) as part of the certification process.[2] [Emphasis added.]
If, as the Department is now claiming, residents are serious risk of harm due to the failure of this online training to meet standards, then it seems likely that there would be evidence that someone has actually been harmed over the last several years. Perhaps these injuries have occurred due to deficient CPR and first aid training, but we haven’t hear about them from the Colorado Assisted Living Association, or the individual providers with whom we communicate.
The assisted living community will learn more as this point is challenged in the appeal process.
Look for more articles on topics of interest to assisted living investor, owners, and operators. The information herein is intended to be educational and an introduction to the subject matter presented. It is NOT specific legal advice to be relied upon for specific individual circumstances. Contact your own legal professional or reach out to our firm if you would like specific advice on this topic. We welcome topic suggestions! Write to brian@pinkowskilaw.com to recommend a particular subject for us to explore.
[1] 6 CCR 1011-1, Chapter 7, Section 3.11.
[2] Inappropriate CPR training/certification is becoming a frequent area of non-compliance/citation on survey, 7 November 2022 email from the Health Facilities and Emergency Management Services Division to assisted living providers in Colorado.