Timber Town Living v. Dept. of Human Services

Violation severity is defined by ORS 4 41.731(2)(b), which creates four levels of severity: (1) a Level 1 violation “results in no actual harm or in potential for only minor harm”; (2) a Level 2 violation “results in minor harm or potential for moderate harm”; (3) a Level 3 violation “results in moderate harm or potential for serious harm”; and (4) a Level 4 violation “results in serious harm or death.”

Petitioner sought judicial review of the final order, challenging DHS’s determination that the petitioner’s violation severity was level 4 after an elderly patient fell in the care facility dining room. Petitioner argues that DHS misconstrued the meaning of “long term” in ORS 441.731(2)(d)(E). DHS argued that the petitioner’s violation was a level 4 because it resulted in “serious harm” to the resident, specifically long-term loss of physical function since the resident fractured their hip. Violation severity is defined by ORS 4 41.731(2)(b), which creates four levels of severity: (1) a Level 1 violation “results in no actual harm or in potential for only minor harm”; (2) a Level 2 violation “results in minor harm or potential for moderate harm”; (3) a Level 3 violation “results in moderate harm or potential for serious  harm”; and (4) a Level 4 violation “results in serious harm or death.” The Court found that DHS had misconstrued the statute and disagreed that a 48-hour loss of function from a hip fracture hospital stay was “long-term” loss of function. Reversed and remanded.