Oregon State Archives

Oregon Bulletin

January 1, 2011

Department of Human Services,
Seniors and People with Disabilities Division
Chapter 411

Rule Caption: Support Services for Adults with Developmental Disabilities.

Adm. Order No.: SPD 25-2010(Temp)

Filed with Sec. of State: 11-17-2010

Certified to be Effective: 11-17-10 thru 5-16-11

Notice Publication Date:

Rules Amended: 411-340-0030, 411-340-0040, 411-340-0060, 411-340-0120

Subject: In response to legislatively required budget reductions effective October 1, 2010, the Department of Human Services (DHS), Seniors and People with Disabilities Division (SPD) is temporarily amending various support services rules in OAR chapter 411, division 340 to change:

      • The certification period for support services brokerages and provider organizations;

      • SPD’s process for conducting administrative reviews in response to complaints that may qualify for such review which will allow for an administrative review to be conducted by either a SPD Manager or Administrative Review Committee; and

      • The specific internal brokerage operations around the routing of written incident reports, the approval of revisions to the Individual Support Plan (ISP), and the required review of ISPs.

Rules Coordinator: Christina Hartman—(503) 945-6398

411-340-0030

Certification of Support Service Brokerages and Provider Organizations

(1) CERTIFICATE REQUIRED.

(a) No person or governmental unit acting individually or jointly with any other person or governmental unit may establish, conduct, maintain, manage, or operate a brokerage without being certified by the Division under this rule.

(b) No person or governmental unit acting individually or jointly with any other person or governmental unit may establish, conduct, maintain, or operate a provider organization without either certification under this rule or current Division license or certification as described in OAR 411-340-0170(1).

(c) Certificates are not transferable or assignable and are issued only for the brokerage, or for the provider organization requiring certification under OAR 411-340-0170(2), and persons or governmental units named in the application.

(d) Certificates issued on or after November 15, 2008 shall be in effect for a maximum of five years.

(e) The Division shall conduct a review of the brokerage, or the provider organization requiring certification under OAR 411-340-0170(2), prior to the issuance of a certificate.

(2) CERTIFICATION. A brokerage, or a provider organization requiring certification under OAR 411-340-0170(2), must apply for an initial certificate and for a certificate renewal.

(a) The application must be on a form provided by the Division and must include all information requested by the Division.

(b) The applicant requesting certification as a brokerage must identify the maximum number of individuals to be served.

(c) To renew certification, the brokerage or provider organization must make application at least 30 days but not more than 120 days prior to the expiration date of the existing certificate. On renewal of brokerage certification, no increase in the maximum number of individuals to be served by the brokerage may be certified unless specifically approved by the Division.

(d) Application for renewal must be filed no more than 120 days prior to the expiration date of the existing certificate and shall extend the effective date of the existing certificate until the Division takes action upon the application for renewal.

(e) Failure to disclose requested information on the application or providing incomplete or incorrect information on the application may result in denial, revocation, or refusal to renew the certificate.

(f) Prior to issuance or renewal of the certificate, the applicant must demonstrate to the satisfaction of the Division that the applicant is capable of providing services identified in a manner consistent with the requirements of these rules.

(3) CERTIFICATION EXPIRATION, TERMINATION OF OPERATIONS, OR CERTIFICATE RETURN.

(a) Unless revoked, suspended, or terminated earlier, each certificate to operate a brokerage or provider organization shall expire on the expiration date specified on the certificate.

(b) If a certified brokerage or provider organization is discontinued, the certificate automatically terminates on the date operation is discontinued.

(4) CHANGE OF OWNERSHIP, LEGAL ENTITY, LEGAL STATUS, OR MANAGEMENT CORPORATION. The brokerage, or provider organization requiring certification under OAR 411-340-0170(2), must notify the Division in writing of any pending action resulting in a 5 percent or more change in ownership and of any pending change in the brokerage’s or provider organization’s legal entity, legal status, or management corporation.

(5) NEW CERTIFICATE REQUIRED. A new certificate for a brokerage or provider organization is required upon change in a brokerage’s or provider organization’s ownership, legal entity, or legal status. The brokerage or provider organization must submit a certificate application at least 30 days prior to change in ownership, legal entity, or legal status.

(6) CERTIFICATE DENIAL, REVOCATION, OR REFUSAL TO RENEW. The Division may deny, revoke, or refuse to renew a certificate when the Division finds the brokerage or provider organization, the brokerage or provider organization director, or any person holding 5 percent or greater financial interest in the brokerage or provider organization:

(a) Demonstrates substantial failure to comply with these rules such that the health, safety, or welfare of individuals is jeopardized and the brokerage or provider organization fails to correct the noncompliance within 30 calendar days of receipt of written notice of non-compliance;

(b) Has demonstrated a substantial failure to comply with these rules such that the health, safety, or welfare of individuals is jeopardized during two inspections within a six year period (for the purpose of this rule, “inspection” means an on-site review of the service site by the Division for the purpose of investigation or certification);

(c) Has been convicted of a felony or any crime as described in OAR 407-007-0275;

(d) Has been convicted of a misdemeanor associated with the operation of a brokerage or provider organization;

(e) Falsifies information required by the Division to be maintained or submitted regarding services of individuals, program finances, or individuals’ funds;

(f) Has been found to have permitted, aided, or abetted any illegal act that has had significant adverse impact on individual health, safety, or welfare; or

(g) Has been placed on the current Centers for Medicare and Medicaid Services list of excluded or debarred providers.

(7) NOTICE OF CERTIFICATE DENIAL, REVOCATION, OR REFUSAL TO RENEW. Following a Division finding that there is a substantial failure to comply with these rules such that the health, safety, or welfare of individuals is jeopardized, or that one or more of the events listed in section (6) of this rule has occurred, the Division may issue a notice of certificate revocation, denial, or refusal to renew.

(8) IMMEDIATE SUSPENSION OF CERTIFICATE. When the Division finds a serious and immediate threat to individual health and safety and sets forth the specific reasons for such findings, the Division may, by written notice to the certificate holder, immediately suspend a certificate without a pre-suspension hearing and the brokerage or provider organization may not continue operation.

(9) HEARING. An applicant for a certificate or a certificate holder may request a hearing pursuant to the contested case provisions of ORS chapter 183 upon written notice from the Division of denial, suspension, revocation, or refusal to renew a certificate. In addition to, or in lieu of a hearing, the applicant or certificate holder may request an administrative review by the Division’s Assistant Director. An administrative review does not preclude the right of the applicant or certificate holder to a hearing.

(a) The applicant or certificate holder must request a hearing within 60 days of receipt of written notice by the Division of denial, suspension, revocation, or refusal to renew a certificate. The request for a hearing must include an admission or denial of each factual matter alleged by the Division and must affirmatively allege a short plain statement of each relevant, affirmative defense the applicant or certificate holder may have.

(b) In the event of a suspension pursuant to section (8) of this rule and during the first 30 days after the suspension of a certificate, the brokerage or provider organization may submit a written request to the Division for an administrative review. The Division shall conduct the review within 10 days after receipt of the request for an administrative review. Any review requested after the end of the 30-day period following certificate suspension shall be treated as a request for hearing under subsection (a) of this section. If following the administrative review the suspension is upheld, the brokerage or provider organization may request a hearing pursuant to the contested case provisions of ORS chapter 183.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 427.005, 427.007, & 430.610 – 430.695

Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; Renumbered from 309-041-1770, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 17-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 25-2010(Temp), f. & cert. ef. 11-17-10 thru 5-16-11

411-340-0040

Abuse and Unusual Incidents in Support Service Brokerages and Provider Organizations

(1) ABUSE PROHIBITED. No adult or individual as defined in OAR 411-340-0020 shall be abused nor shall any employee, staff, or volunteer of the brokerage or provider organization condone abuse.

(a) Brokerages and provider organizations must have in place appropriate and adequate disciplinary policies and procedures to address instances when a staff member has been identified as an accused person in an abuse investigation as well as when the allegation of abuse has been substantiated.

(b) All employees of a brokerage or provider organization are mandatory reporters. The brokerage or provider organization must:

(A) Notify all employees of mandatory reporting status at least annually on forms provided by the Department; and

(B) Provide all employees with a Department-produced card regarding abuse reporting status and abuse reporting.

(2) UNUSUAL INCIDENTS.

(a) A brokerage or provider organization must prepare an incident report at the time of an unusual incident, as defined in OAR 411-340-0020, involving an individual and a brokerage or provider organization employee. The incident report must be placed in the individual’s record and must include:

(A) Conditions prior to or leading to the unusual incident;

(B) A description of the unusual incident;

(C) Staff response at the time; and

(D) Review by the brokerage administration and follow-up to be taken to prevent recurrence of the unusual incident.

(b) A brokerage or provider organization must send copies of all incident reports involving potential or suspected abuse that occurs while an individual is receiving brokerage or provider organization services to the CDDP.

(c) A provider organization must send copies of incident reports of all unusual incidents that occur while the individual is receiving services from a provider organization to the individual’s brokerage within five working days of the unusual incident.

(3) IMMEDIATE NOTIFICATION

(a) The brokerage must immediately report to the CDDP, and the provider organization must immediately report to the CDDP with notification to the brokerage, any incident or allegation of abuse falling within the scope of OAR 407-045-0260.

(A) When an abuse investigation has been initiated, the CDDP must provide notice according to OAR 407-045-0290.

(B) When an abuse investigation has been completed, the CDDP must provide notice of the outcome of the investigation according to OAR 407-045-0320.

(b) In the case of emergency overnight hospitalization due to illness or injury to an individual, the brokerage or provider organization must immediately notify:

(A) The individual’s legal representative, parent, next of kin, designated contact person, or other significant person; and

(B) In the case of the provider organization, the individual’s brokerage.

(c) In the event of the death of an individual, the brokerage or provider organization must immediately notify:

(A) The Medical Director of the Division;

(B) The individual’s legal representative, parent, next of kin, designated contact person, or other significant person;

(C) The CDDP; and

(D) In the case of a provider organization, the individual’s brokerage.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 427.005, 427.007 & 430.610 – 430.695

Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; MHD 4-2003(Temp); f. & cert. ef. 7-1-03 thru 12-27-03; Renumbered from 309-041-1780, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 17-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 25-2010(Temp), f. & cert. ef. 11-17-10 thru 5-16-11

411-340-0060

Complaints in Support Services Brokerages

(1) COMPLAINTS. Brokerages must develop and implement written policies and procedures regarding individual complaints and a formal complaint process. These policies and procedures must at minimum address:

(a) Receipt of complaints. If a complaint is associated in any way with abuse, the recipient of the complaint must immediately report the issue to the CDDP and notify the brokerage director and, if applicable, the provider organization director. The brokerage must maintain a log of all complaints regarding the brokerage, provider organization, or independent provider that the brokerage receives from individuals, others acting on the behalf of individuals, and from provider organizations acting in accordance with OAR 411-340-0170(2)(a)(C)(v).

(A) The complaint log must, at a minimum, include the following:

(i) The date the complaint was received;

(ii) The name of the person taking the complaint;

(iii) The nature of the complaint;

(iv) The name of the person making the complaint, if known; and

(v) The disposition of the complaint.

(B) Brokerage personnel issues and allegations of abuse may be maintained separately from a central complaint log. If a complaint results in disciplinary action against a staff member, the documentation on the complaint must include a statement that disciplinary action was taken.

(b) Informal complaint resolution. An individual or someone acting on behalf of the individual must have an opportunity to informally discuss and resolve any complaint that a brokerage, provider organization, or independent provider has taken action that is contrary to law, rule, policy, or that is otherwise contrary to the interest of the individual and that does not meet the criteria for an abuse investigation. Choosing an informal resolution does not preclude an individual or someone acting on behalf of the individual from pursuit of resolution through formal complaint processes.

(c) Investigation of the facts supporting or disproving the complaint.

(d) Taking appropriate actions. The brokerage must take steps to resolve the complaint within five working days following receipt of the complaint. If the complaint cannot be resolved informally, or if the individual making the complaint so chooses at any time, the individual may request a formal resolution of the complaint and, if needed, must be assisted by the brokerage with initiating the formal complaint process.

(e) Review by the brokerage director. If a complaint involves brokerage staff or services and if the complaint is not resolved according to subsection (b) through (d) of this section, or if the person making the complaint requests one, a formal review must be completed by the brokerage director and a written response must be provided to the complainant within 30 days following receipt of the complaint.

(f) Agreement to resolve the complaint. Any agreement to resolve a complaint that has been formally reviewed by the brokerage director must be in writing and must be specifically approved by the complainant. The brokerage must provide the complainant with a copy of the agreement.

(g) Administrative review. Unless the complainant is a Medicaid recipient who has elected to initiate the hearing process according to section (3) of this rule, the complaint may be submitted to the Division for administrative review when the complaint cannot be resolved by the brokerage and the complaint involves the provision of service or a provider.

(A) Following a decision by the brokerage director regarding a complaint, the complainant may request an administrative review by Division administration.

(B) The complainant must submit to the Division a request for an administrative review within 15 days from the date of the decision by the brokerage director.

(C) Upon receipt of a request for an administrative review, the complaint shall be referred for either a Management Review by the Division or to an Administrative Review Committee according to Division policy.

(i) Management Review.

(I) A Management Review by the Division shall include a review of the complaint and the decision made regarding the complaint. The review shall determine if the decision made was consistent with the Division’s rules and policies.

(II) Division administration shall make a final decision. The decision shall be in writing and issued within 10 days from the Management Review. The written decision shall contain the rationale for the decision.

(III) The Division’s decision is final. Any further review is pursuant to the provision of ORS 183.484 for judicial review

(ii) Administrative Review Committee.

(I) The Administrative Review Committee shall be comprised of a representative of the Division, a CDDP representative, and a brokerage representative. Committee representatives may not have any direct involvement in the provision of services to the complainant or have a conflict of interest in the specific case being reviewed.

(II) The Administrative Review Committee must review the complaint and the decision by the brokerage director and make a recommendation to the Assistant Director of the Division within 45 days of receipt of the complaint unless the complainant and the Administrative Review Committee mutually agree to an extension.

(III) The Assistant Director of the Division shall consider the report and recommendations of the Administrative Review Committee and make a final decision. The decision shall be in writing and issued within 10 days of receipt of the recommendation by the Administrative Review Committee. The written decision shall contain the rationale for the decision.

(IV) The decision of the Assistant Director of the Division is final. Any further review is pursuant to the provision of ORS 183.484 for judicial review.

(h) Documentation of complaint. Documentation of each complaint and its resolution must be filed or noted in the complainant’s record.

(2) NOTIFICATION. Upon enrollment and annually thereafter, and when a complaint is not resolved according to section (1)(b) through (1)(d) of this rule, the brokerage must inform each individual, or the individual’s legal representative, orally and in writing, using language, format, and methods of communication appropriate to the individual’s needs and abilities, of the following:

(a) Brokerage grievance policy and procedures, including the right to an administrative review and the method to obtain an administrative review; and

(b) The right of a Medicaid recipient to a hearing as pursuant to section (3) of this rule and the procedure to request a hearing.

(3) DENIAL, TERMINATION, SUSPENSION, OR REDUCTION OF SERVICES FOR INDIVIDUAL MEDICAID RECIPIENTS.

(a) Each time the brokerage takes an action to deny, terminate, suspend, or reduce an individual’s access to services covered under Medicaid, the brokerage must notify the individual or the individual’s legal representative of the right to a hearing and the method to request a hearing. The brokerage must mail the notice by certified mail, or personally serve the notice to the individual or the individual’s legal representative 10 days or more prior to the effective date of an action.

(A) The brokerage must use form SDS 0947, Notification of Planned Action, or a comparable Division-approved form for such notification.

(B) This notification requirement does not apply if an action is part of, or fully consistent with the ISP, and the individual or the individual’s legal representative has agreed with the action by signature to the ISP.

(b) A notice required by subsection (a) of this section must include:

(A) The action the brokerage intends to take;

(B) The reasons for the intended action;

(C) The specific Oregon Administrative Rules that support, or the change in federal or state law that requires, the action;

(D) The appealing party’s right to request a hearing in accordance with OAR chapter 137, ORS chapter 183, and 42 CFR Part 431, Subpart E;

(E) A statement that the brokerage files on the subject of the hearing automatically becoming part of the hearing record upon default for the purpose of making a prima facie case;

(F) A statement that the actions specified in the notice shall take effect by default if the Department representative does not receive a request for hearing from the party within 45 days from the date that the brokerage mails the notice of action;

(G) In cases of an action based upon a change in law, the circumstances under which a hearing shall be granted; and

(H) An explanation of the circumstances under which brokerage services shall be continued if a hearing is requested.

(c) If the individual or the individual’s legal representative disagrees with a decision or proposed action by the brokerage to deny, terminate, suspend, or reduce an individual’s access to services covered under Medicaid, the party may request a hearing as provided in ORS chapter 183. The request for a hearing must be in writing on form DHS 443 and signed by the individual or the individual’s legal representative. The signed form (DHS 443) must be received by the Department within 45 days from the date the brokerage mailed the notice of action.

(d) The individual or the individual’s legal representative may request an expedited hearing if the individual or the individual’s legal representative feels that there is immediate, serious threat to the individual’s life or health should the normal timing of the hearing process be followed.

(e) If the individual or the individual’s legal representative requests a hearing before the effective date of the proposed action and requests that the existing services be continued, the Department shall continue the services.

(A) The Department shall continue the services until whichever of the following occurs first:

(i) The current authorization expires;

(ii) The administrative law judge issues a proposed order and the Department issues a final order; or

(iii) The individual is no longer eligible for Medicaid benefits.

(B) The Department shall notify the individual or the individual’s legal representative that the Department is continuing the service. The notice shall inform the individual or the individual’s legal representative that, if the hearing is resolved against the individual, the Department may recover the cost of any services continued after the effective date of the continuation notice.

(f) The Department may reinstate services if:

(A) The Department takes an action without providing the required notice and the individual or the individual’s legal representative requests a hearing;

(B) The Department fails to provide the notice in the time required in this rule and the individual or the individual’s legal representative requests a hearing within 10 days of the mailing of the notice of action; or

(C) The post office returns mail directed to the individual or the individual’s legal representative, but the location of the individual or the individual’s legal representative becomes known during the time that the individual is still eligible for services.

(g) The Department shall promptly correct the action taken up to the limit of the original authorization, retroactive to the date the action was taken, if the hearing decision is favorable to the individual, or the Department decides in the individual’s favor before the hearing.

(h) The Department representative and the individual or the individual’s legal representative may have an informal conference, without the presence of the administrative law judge, to discuss any of the matters listed in OAR 137-003-0575. The informal conference may also be used to:

(A) Provide an opportunity for the Department and the individual or the individual’s legal representative to settle the matter;

(B) Ensure the individual or the individual’s legal representative understands the reason for the action that is the subject of the hearing request;

(C) Give the individual or the individual’s legal representative an opportunity to review the information that is the basis for that action;

(D) Inform the individual or the individual’s legal representative of the rules that serve as the basis for the contested action;

(E) Give the individual or the individual’s legal representative and the Department the chance to correct any misunderstanding of the facts;

(F) Determine if the individual or the individual’s legal representative wishes to have any witness subpoenas issued; and

(G) Give the Department an opportunity to review its action or the action of the brokerage.

(i) The individual or the individual’s legal representative may, at any time prior to the hearing date, request an additional conference with the Department representative. At the Department representative’s discretion, the Department representative may grant an additional conference if it facilitates the hearing process.

(j) The Department may provide the individual or the individual’s legal representative the relief sought at any time before the final order is issued.

(k) An individual or the individual’s legal representative may withdraw a hearing request at any time prior to the issuance of a final order. The withdrawal shall be effective on the date the Department or the Office of Administrative Hearings receives it. The Department must issue a final order confirming the withdrawal to the last known address of the individual or the individual’s legal representative. The individual or the individual’s legal representative may cancel the withdrawal up to 10 working days following the date the final order is issued.

(l) Proposed and final orders.

(A) In a contested case, the administrative law judge must serve a proposed order on the individual and the Department.

(B) If the administrative law judge issues a proposed order that is adverse to the individual, the individual or the individual’s legal representative may file exceptions to the proposed order to be considered by the Department. The exception must be in writing and must be received by the Department no later than 10 days after service of the proposed order. The individual or the individual’s legal representative may not submit additional evidence after this period unless the Department grants prior approval.

(C) After receiving the exceptions, if any, the Department may adopt the proposed order as the final order or may prepare a new order. Prior to issuing the final order, the Department may issue an amended proposed order.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 427.005, 427.007, 430.610– 430.695

Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; MHD 4-2003(Temp); f. & cert. ef. 7-1-03 thru 12-27-03; Renumbered from 309-041-1800, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 17-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 21-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-29-08; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 25-2010(Temp), f. & cert. ef. 11-17-10 thru 5-16-11

411-340-0120

Support Service Brokerage Services

(1) Each brokerage must provide or arrange for the following services as required to meet individual support needs:

(a) Assistance for individuals to determine needs, plan supports in response to needs, and develop individualized budgets based on available resources;

(b) Assistance for individuals to find and arrange the resources to provide planned supports;

(c) Assistance with development and expansion of community resources required to meet the support needs of individuals served by the brokerage;

(d) Information, education, and technical assistance for individuals to use to make informed decisions about support needs and to direct providers;

(e) Fiscal intermediary services in the receipt and accounting of support services funds on behalf of an individual in addition to making payment to providers with the authorization of the individual;

(f) Employer-related supports; and

(g) Assistance for individuals to effectively put plans into practice, including help to monitor and improve the quality of supports as well as assess and revise plan goals.

(2) SELF-DETERMINATION. Brokerages must apply the principles of self-determination to provision of services required in section (1) of this rule.

(3) PERSON-CENTERED PLANNING. A brokerage must use a person-centered planning approach to assist individuals to establish outcomes, determine needs, plan for supports, and review and redesign support strategies.

(4) HEALTH AND SAFETY ISSUES. The planning process must address basic health and safety needs and supports including but not limited to:

(a) Identification of risks, including risk of serious neglect, intimidation, and exploitation;

(b) Informed decisions by the individual or the individual’s legal representative regarding the nature of supports or other steps taken to ameliorate any identified risks; and

(c) Education and support to recognize and report abuse.

(5) MEDICAID WAIVERS. The brokerage must assure that individuals who become eligible for Medicaid after entry into the brokerage are offered the choice of home and community-based waiver services, provided a notice of fair hearing rights, and have a completed Title XIX Waiver form that is reviewed annually or at any time there is a significant change.

(6) WRITTEN PLAN REQUIRED.

(a) Unless circumstances allow exception under subsection (b) of this section, the personal agent must write an ISP dated within 90 days of an individual’s entry into brokerage services and at least annually thereafter. A written copy of the most current ISP must be provided to the individual and the individual’s legal representative. The ISP or attached documents must include:

(A) The individual’s name;

(B) A description of the supports required, including the reason the support is necessary;

(C) Projected dates of when specific supports are to begin and end;

(D) Projected costs, with sufficient detail to support estimates;

(E) A list of personal, community, and public resources that are available to the individual and how they shall be applied to provide the required supports;

(F) The providers, or when the provider is unknown or is likely to change frequently, the type of provider (i.e. independent provider, provider organization, or general business provider), of supports to be purchased with support services funds;

(G) Schedule of ISP reviews; and

(H) Any revisions to paragraphs (A) to (G) of this section that may alter:

(i) The amount of support services funds required;

(ii) The amount of support services required;

(iii) Types of support purchased with support services funds; and

(iv) The type of support provider.

(b) The schedule of the support services ISP developed in compliance with section (3) of this rule after an individual enters a brokerage may be adjusted one time for any individual entering a brokerage in certain circumstances. Such an adjustment shall interrupt any plan year in progress and establish a new plan year for the individual beginning on the date the first new ISP is authorized. Circumstances where this adjustment is permitted include:

(A) Brokerages, with the consent of the individual, may designate a new ISP start date.

(i) This adjustment may only occur one time per individual upon ISP renewal.

(ii) The individual’s benefit level must be pro-rated based on the shortened plan year in order to not exceed the annual benefit level for which the individual is eligible.

(iii) ISP date adjustments shall be clearly documented on the ISP.

(B) Transition of individuals receiving family support services for children with developmental disabilities regulated by OAR chapter 411, division 305, children’s intensive in-home services (CIIS) regulated by OAR chapter 411, division 300, or medically fragile children (MFC) services regulated by OAR chapter 411, division 350, when those individuals are 18 years of age. The date of the individual’s first new support services ISP after enrollment in the brokerage may be adjusted to correspond to the expiration date of the individual’s Annual Plan of Care in place at the time the individual turns 18 years of age when the Annual Plan of Care, developed while the individual is still receiving family support, CIIS, or MFC services, has been authorized for implementation prior to or upon the individual’s enrollment in the brokerage.

(C) Transition of individuals receiving other Division-paid services who are required by the Division to transition to support services. The date of the individual’s first support services ISP may be adjusted to correspond to the expiration date of the individual’s plan for services when the plan for services:

(i) Has been developed according to regulations governing Division-paid services the individual receives prior to transition;

(ii) Is current at the time designated by the Division for transition to support services; and

(iii) Is authorized for implementation prior to or upon the individual’s enrollment in the brokerage.

(7) PROFESSIONAL OR OTHER SERVICE PLANS.

(a) A Nursing Care Plan must be attached to the ISP when support services funds are used to purchase services requiring the education and training of a licensed professional nurse.

(b) A Support Services Brokerage Plan of Care Crisis Addendum, or other document prescribed by the Division for use in these circumstances, must be attached when an individual enrolled in a brokerage:

(A) Has been determined by the CDDP of the individual’s county of residence as eligible for crisis diversion services according to OAR 411-320-0160; and

(B) Is in emergent status in a short-term out-of-home residential placement as part of the individual’s crisis diversion services. This short-term plan must be coordinated by staff of the CDDP of the individual’s county of residence.

(8) INDIVIDUAL SERVICE PLAN AUTHORIZATION.

(a) An initial and annual ISP must be authorized prior to implementation.

(b) A revision to the annual or initial ISP that involves the types of support purchased with support services funds must be authorized prior to implementation.

(c) A revision to the annual or initial ISP that does not involve the types of support purchased with support services funds does not require authorization. Documented verbal agreement to the revision by the individual or the individual’s legal representative is required prior to implementation of the revision.

(d) An ISP is authorized when:

(A) The signature of the individual or the individual’s legal representative is present on the ISP or documentation is present explaining the reason an individual who does not have a legal representative may be unable to sign the ISP.

(i) Acceptable reasons for an individual without a legal representative not to sign the ISP include physical or behavioral inability to sign the ISP.

(ii) Unavailability of the individual is not an acceptable reason for the individual or the individual’s legal representative not to sign the ISP.

(iii) If the individual or the individual’s legal representative is unavailable to sign revisions to the ISP when required, documented verbal agreement may substitute for a signature for no more than 10 working days.

(B) The signature of the personal agent involved in the development of the ISP is present on the ISP; and

(C) A designated brokerage representative has reviewed the ISP for compliance with Division rules and policy.

(9) PERIODIC REVIEW OF PLAN AND RESOURCES.

(a) The personal agent must conduct and document reviews of plans and resources with the individual and the individual’s legal representative.

(b) At least annually as part of preparation for a new ISP, the personal agent must:

(A) Evaluate progress toward achieving the purposes of the ISP, assessing and revising goals as needed;

(B) Note effectiveness of purchases based on personal agent observation as well as individual satisfaction;

(C) Determine whether changing needs or availability of other resources has altered the need for continued use of support services funds to purchase supports; and

(D) Record final support services fund costs.

(10) TRANSITION TO ANOTHER BROKERAGE. At the request of an individual enrolled in brokerage services who has selected another brokerage, the brokerage must collaborate with the receiving brokerage and the CDDP of the individual’s county of residence to transition support services.

(a) If the Division has designated and contracted funds solely for the support of the transitioning individual, the brokerage must notify the Division to consider transfer of the funds for the individual to the receiving brokerage.

(b) The ISP in place at the time of request for transfer may remain in effect 90 days after enrollment in the new brokerage while a new ISP is negotiated and authorized.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 427.005, 427.007, 430.610– 430.695

Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; MHD 4-2003(Temp); f. & cert. ef. 7-1-03 thru 12-27-03; Renumbered from 309-041-1860, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 17-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 25-2010(Temp), f. & cert. ef. 11-17-10 thru 5-16-11

Rule Caption: Homecare Workers Enrolled in the Client-Employed Provider Program.

Adm. Order No.: SPD 26-2010

Filed with Sec. of State: 11-29-2010

Certified to be Effective: 12-1-10

Notice Publication Date: 11-1-2010

Rules Amended: 411-031-0020, 411-031-0040

Rules Repealed: 411-031-0020(T), 411-031-0040(T)

Subject: The Department of Human Services, Seniors and People with Disabilities Division is permanently amending OAR 411-031-0020 and OAR 411-031-0040 to implement ORS 443.004 (House Bill 2442) by disallowing initial or continued enrollment as a homecare worker in the Client-Employed Provider Program if an individual enrolled after July 28, 2009 has been convicted of a disqualifying crime under OAR 407-007-0275.

Rules Coordinator: Christina Hartman—(503) 945-6398

411-031-0020

Definitions

(1) “Activities of Daily Living (ADL)” mean those personal, functional activities required by an individual for continued well-being, which are essential for health and safety. Activities include eating, dressing/grooming, bathing/personal hygiene, mobility (ambulation and transfer), elimination (toileting, bowel, and bladder management), and cognition/behavior as defined in OAR 411-015-0006.

(2) “Adult Protective Services” mean the services to be provided in response to the need for protection from harm or neglect to an aged, disabled, or blind person 18 years of age or older regardless of income, as described in OAR chapter 411, division 020.

(3) “Area Agency on Aging (AAA)” means the Department designated agency charged with the responsibility to provide a comprehensive and coordinated system of services to seniors or individuals with disabilities in a planning and service area. For purposes of these rules, the term Area Agency on Aging is inclusive of both Type A and Type B Area Agencies on Aging as defined in ORS 410.040 and described in ORS 410.210 to 410.300.

(4) “Bargaining Agreement” means the 2009-2011 Collective Bargaining Agreement between the Home Care Commission and the Service Employee’s International Union, Local 503, Oregon Public Employees’ Union.

(5) “Burden of Proof” means that the existence or nonexistence of a fact must be established by a preponderance of the evidence.

(6) “Career Homecare Worker” means a homecare worker with an unrestricted provider enrollment. A career homecare worker has a provider enrollment that allows him or her to provide services to any eligible in-home services client. At any given time, a career homecare worker may choose not to be referred for work.

(7) “Case Manager” means an employee of the Department or Area Agency on Aging who assesses the service needs of an applicant, determines eligibility, and offers service choices to the eligible individual. The case manager authorizes and implements the service plan, and monitors the services delivered.

(8) “Client” or “Client-Employer” means the individual eligible for in-home services. “Individual” is synonymous with client.

(9) “Client-Employed Provider Program (CEP)” refers to the program wherein the provider is directly employed by the client and provides either hourly or live-in services. In some aspects of the employer and employee relationship, the Department acts as an agent for the client-employer. These functions are clearly described in OAR 411-031-0040.

(10) “Companionship Services” mean those services designated by the Department of Labor as meeting the personal needs of a client. Companionship services are exempt from federal and state minimum wage laws.

(11) “Department” means the Department of Human Services (DHS).

(12) “Division” means the Department of Human Services, Seniors and People with Disabilities Division (SPD).

(13) “Evidence” means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.

(14) “Fiscal Improprieties” means the homecare worker committed financial misconduct involving the client’s money, property, or benefits. Fiscal improprieties include but are not limited to financial exploitation, borrowing money from the client, taking the client’s property or money, having the client purchase items for the homecare worker, forging the client’s signature, falsifying payment records, claiming payment for hours not worked, or similar acts intentionally committed for financial gain.

(15) “Homecare Worker (HCW)” means a provider, as described in OAR 411-031-0040, that is directly employed by the client and provides either hourly or live-in services to eligible clients. The term homecare worker includes client-employed providers in the Spousal Pay and Oregon Project Independence Programs. It also includes client-employed providers that provide state plan personal care services to seniors and people with physical disabilities. Homecare worker does not include Independent Choices Program providers or personal care attendants enrolled through Developmental Disability Services or the Addictions and Mental Health Division.

(16) “Hourly Services” mean the in-home services, including activities of daily living and self-management tasks, that are provided at regularly scheduled times.

(17) “Imminent Danger” means there is reasonable cause to believe a person’s life or physical, emotional, or financial well-being is in danger if no intervention is immediately initiated.

(18) “In-Home Services” mean those activities of daily living and self-management tasks that assist an individual to stay in his or her own home.

(19) “Lack of Ability or Willingness to Maintain Client-Employer Confidentiality” means the homecare worker is unable or unwilling to keep personal information about their client-employer private.

(20) “Lack of Skills, Knowledge, and Ability to Adequately or Safely Perform the Required Work” means the homecare worker does not possess the skills to perform services needed by clients of the Division. The homecare worker may not be physically, mentally, or emotionally capable of providing services to seniors and persons with disabilities. Their lack of skills may put clients at risk, because they fail to perform, or learn to perform, their duties adequately to meet the needs of the client.

(21) “Live-In Services” mean those Client-Employed Provider Program services provided when a client requires activities of daily living, self-management tasks, and twenty-four hour availability. Time spent by any live-in homecare worker doing self-management and twenty-four hour availability are exempt from federal and state minimum wage and overtime requirements.

(22) “Office of Administrative Hearings” means the panel established within the Employment Department described in ORS 183.605 to 183.690 that conducts contested case proceedings and other such duties on behalf of designated state agencies.

(23) “Oregon Project Independence (OPI)” means the program of in-home services described in OAR chapter 411, division 032.

(24) “Preponderance of the Evidence” means that one party’s evidence is more convincing than the other party’s.

(25) “Provider” means the person who actually renders the service.

(26) “Provider Enrollment” means a homecare worker’s authorization to work as a provider employed by the client for the purpose of receiving payment for authorized services provided to clients of the Division. Provider enrollment includes the issuance of a provider number.

(27) “Provider Number” means an identifying number issued to each homecare worker who is enrolled as a provider through the Division.

(28) “Restricted Homecare Worker” means the Division or Area Agency on Aging has placed restrictions on an individual homecare workers’ provider enrollment as described in OAR 411-031-0040.

(29) “Self-Management Tasks” or “Instrumental Activities of Daily Living (IADL)” mean those activities, other than activities of daily living, required by an individual to continue independent living. The definitions and parameters for assessing needs in self-management tasks are identified in OAR 411-015-0007.

(30) “Services are Not Provided as Required” means the homecare worker does not provide the services to the client as described in the service plan authorized by the Division.

(31) “These Rules” mean the rules in OAR chapter 411, division 031.

(32) “Twenty-Four Hour Availability” means the availability and responsibility of a homecare worker to meet activities of daily living and self-management needs of a client as required by that client over a twenty-four hour period. Twenty-four hour services are provided by a live-in homecare worker and are exempt from federal and state minimum wage and overtime requirements.

(33) “Unacceptable Conduct at Work” means the homecare worker has repeatedly engaged in one or more of the following behaviors:

(a) Delay in their arrival to work or absences from work not prior-scheduled with the client, that are either unsatisfactory to the client or that neglect the client’s service needs; or

(b) Inviting unwelcome guests or pets into the client’s home, resulting in the client’s dissatisfaction or inattention to the client’s required service needs.

(34) “Unacceptable Criminal Records Check” means a check that produces information related to an individual’s criminal records check which precludes the individual from being a homecare worker for the following reasons:

(a) The individual applying to be a homecare worker has been disqualified under OAR 407-007-0275;

(b) A homecare worker enrolled in the Client-Employed Provider Program for the first time, or after any break in enrollment, after July 28, 2009 has been disqualified under OAR 407-007-0275; or

(c) A criminal records check and fitness determination have been conducted resulting in a “denied” status, as defined in OAR 407-007-0210.

(35) “Violation of a Drug-Free Workplace” means there was a substantiated complaint against the homecare worker for:

(a) Being intoxicated by alcohol, inhalants, prescription drugs, or other drugs, including over-the-counter medications, while responsible for the care of the client, while in the client’s home, or while transporting the client; or

(b) Manufacturing, possessing, selling, offering to sell, trading, or using illegal drugs while providing authorized services to the client or while in the client’s home.

(36) “Violations of Protective Service and Abuse Rules” means the homecare worker violated the protective service and abuse rules in OAR chapter 411, division 020.

Stat. Auth.: ORS 409.050, 410.070 & 410.090

Stats. Implemented: ORS 410.010, 410.020 & 410.070

Hist.: SPD 17-2004, f. 5-28-04, cert.ef. 6-1-04; SPD 40-2004(Temp), f. 12-30-04, cert. ef. 1-1-05 thru 6-30-05; SPD 10-2005, f. & cert. ef. 7-1-05; SPD 15-2005(Temp), f. & cert. ef. 11-16-05 thru 5-15-06; SPD 15-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 28-2006(Temp), f. 10-18-06, cert. ef. 10-23-06 thru 4-20-07; SPD 4-2007, f. 4-12-07, cert. ef. 4-17-07; SPD 3-2010, f. 5-26-10, cert. ef. 5-30-10; SPD 4-2010(Temp), f. 6-23-10, cert. ef. 7-1-10 thru 12-28-10; SPD 26-2010, f. 11-29-10, cert. ef. 12-1-10

411-031-0040

Client-Employed Provider Program

The Client-Employed Provider Program contains systems and payment structures to employ both hourly and live-in providers. The live-in structure assumes the provider shall be required for activities of daily living and self-management tasks and twenty-four hour availability. To ensure continuity of service for the client, live-in service plans must include at least one homecare worker providing twenty-four hour availability for a minimum of five days in a calendar week. The hourly structure assumes the provider shall be required for activities of daily living and self-management tasks during specific substantial periods. Except as indicated, all of the following criteria apply to both hourly and live-in providers.

(1) EMPLOYMENT RELATIONSHIP. The relationship between the provider and the client is that of employee and employer.

(2) CLIENT-EMPLOYER JOB DESCRIPTIONS. Each client-employer is responsible for creating and maintaining a job description for the potential employee in coordination with the services authorized by the client’s case manager.

(3) HOMECARE WORKER LIABILITIES. The only benefits available to homecare workers are those negotiated in the bargaining agreement and as provided in Oregon Revised Statute. This agreement does not include participation in the Public Employees Retirement System or the Oregon Public Service Retirement Plan. Homecare workers are not state employees.

(4) CLIENT-EMPLOYER ABSENCES. When a client-employer is absent from the home due to an illness or medical treatment and is expected to return to the home within a 30 day period, a live-in provider, that is the only live-in provider for that client, may be retained to ensure the live-in provider’s presence upon the client-employer’s return or to maintain the client’s home for up to 30 days at the rate of pay immediately preceding the client’s absence. Spousal pay providers are not eligible for payment during the absence of the client-employer.

(5) SELECTION OF HOMECARE WORKER. The client-employer carries primary responsibility for locating, interviewing, screening, and hiring his or her own employees. The client-employer has the right to employ any person who successfully meets the provider enrollment standards described in section (8) of this rule. The Division/AAA office shall determine whether the employee meets minimum qualifications to provide the authorized services paid by the Division.

(6) EMPLOYMENT AGREEMENT. The client-employer retains the full right to establish the employer-employee relationship at any time after Bureau of Citizenship and Immigration Services papers have been completed and identification photocopied. The Division may not guarantee payment for those services until all acceptable enrollment standards have been verified and both the employer and homecare worker have been formally notified in writing that payment by the Division is authorized.

(7) TERMS OF EMPLOYMENT. The terms of the employment relationship are the responsibility of the client-employer to establish at the time of hire. These terms of employment may include dismissal or resignation notice, work scheduling and absence reporting, as well as any sleeping arrangements or meals provided for live-in or hourly employees.

(8) PROVIDER ENROLLMENT.

(a) ENROLLMENT STANDARDS. A homecare worker must meet all of the following standards to be enrolled with the Division’s Client-Employed Provider Program:

(A) The homecare worker must maintain a drug-free work place.

(B) The homecare worker must complete the criminal records check process described in OAR 407-007-0200 to 407-007-0370 with an outcome of approved or approved with restrictions. The Division/AAA may allow a homecare worker to work on a preliminary basis in accordance with OAR 407-007-0315 if the homecare worker meets the other provider enrollment standards described in this section of the rule.

(C) The homecare worker must have the skills, knowledge, and ability to perform, or to learn to perform, the required work.

(D) The homecare worker’s U.S. employment authorization must be verified.

(E) The homecare worker must be 18 years of age or older. The Division’s Central Office may approve a restricted enrollment, as described in section (8)(d) of this rule, for a homecare worker who is at least sixteen years of age.

(F) The homecare worker must complete an orientation as described in section (8)(e) of this rule.

(b) The Division/AAA may deny an application for provider enrollment in the Client-Employed Provider Program when:

(A) The applicant has a history of violating protective service and abuse rules;

(B) The applicant has committed fiscal improprieties;

(C) The applicant does not have the skills, knowledge, or ability to adequately or safely provide services;

(D) The applicant has an unacceptable criminal records check;

(E) The applicant is not 18 years of age;

(F) The applicant has been excluded by the Health and Human Services, Office of Inspector General, from participation in Medicaid, Medicare, and all other Federal Health Care Programs; or

(G) The Division/AAA has information that enrolling the applicant as a homecare worker may put vulnerable clients at risk.

(c) CRIMINAL RECORDS RECHECKS. Criminal records rechecks shall be conducted at least every other year from the date the homecare worker is enrolled. The Division/AAA may conduct a recheck more frequently based on additional information discovered about the homecare worker, such as possible criminal activity or other allegations.

(A) When a homecare worker is approved without restrictions following a criminal records check fitness determination, the approval must meet the homecare worker provider enrollment requirement statewide whether the qualified entity is a state-operated Division office or an AAA operated by a county, council of governments, or a non-profit organization.

(B) Criminal records check approval is effective for two years unless:

(i) Based on possible criminal activity or other allegations against the homecare worker, a new fitness determination is conducted resulting in a change in approval status; or

(ii) The approval has ended because the Department has inactivated or terminated the homecare worker’s provider enrollment for one or more reasons described in this rule or OAR 411-031-0050.

(C) Prior criminal records check approval for another Department provider type is inadequate to meet criminal records check requirements for homecare worker enrollment.

(d) RESTRICTED PROVIDER ENROLLMENT.

(A) The Division/AAA may enroll an applicant as a restricted homecare worker. A restricted homecare worker may only provide services to specific individuals.

(i) Unless disqualified under OAR 407-007-0275, the Division/AAA may approve a homecare worker with prior criminal records under a restricted enrollment to provide services only to specific individuals who are family members, neighbors, or friends after conducting a weighing test as described in OAR 407-007-0200 to 407-007-0370.

(ii) Based on the applicant’s lack of skills, knowledge, or abilities, the Division/AAA may approve an applicant as a restricted homecare worker to provide services only to specific individuals who are family members, neighbors, or friends.

(iii) Based on an exception to the age requirements for provider enrollment approved by the Division’s Central Office as described in subsection (a)(E) of this section, a homecare worker who is at least 16 years of age may be approved as a restricted homecare worker.

(B) To remove restricted homecare worker status and be designated as a career homecare worker, the applicant must complete a new application and criminal records check and be approved by the Division/AAA.

(e) HOMECARE WORKER ORIENTATION. Homecare workers must participate in an orientation arranged through a Division/AAA office. The orientation shall occur within the first 30 days after becoming enrolled in the Client-Employed Provider Program and prior to beginning work for any specific Division/AAA clients. When completion of an orientation is not possible within those timelines, orientation must be completed within 90 days of being enrolled. If a homecare worker fails to complete an orientation within 90 days of provider enrollment, their provider number shall be inactivated and any authorization for payment of services shall be discontinued.

(f) A homecare worker’s provider enrollment may be inactivated when:

(A) The homecare worker has not provided any paid services to any client in the last 12 months;

(B) The homecare worker’s criminal records check results in a closed case pursuant to OAR 407-007-0325;

(C) The homecare worker informs the Division/AAA they will no longer be providing homecare worker services in Oregon;

(D) The provider fails to participate in a homecare worker orientation arranged through a Division/AAA office within 90 days of provider enrollment; or

(E) The homecare worker, who at the time is not providing any paid services to clients, is being investigated by Adult Protective Services for suspected abuse that poses imminent danger to current or future clients.

(9) PAID LEAVE.

(a) LIVE-IN HOMECARE WORKERS. Irrespective of the number of clients served, the Division shall authorize one 24-hour period of leave each month when a live-in homecare worker or spousal pay provider is the only live-in provider during the course of a month. For any part of a month worked, the live-in homecare worker shall receive a proportional share of that 24-hour period of leave authorization. A prorated share of the 24-hours shall be allocated proportionately to each live-in when there is more than one live-in provider per client.

(A) ACCUMULATION AND USAGE FOR LIVE-IN PROVIDERS. A provider may not accumulate more than 144 hours of accrued leave. The employer, homecare worker, and case manager shall coordinate the timely use of these hours. Live-in homecare workers must take vacation leave in 24-hour increments or in hourly increments of at least 4 but not more than 12 hours. Accrued leave must be taken while employed as a live-in.

(B) THE RIGHT TO RETAIN LIVE-IN PAID LEAVE. The homecare worker retains the right to access earned paid leave when terminating employment with one employer, so long as the homecare worker is employed with another employer as a live-in within one year of separation.

(C) TRANSFERABILITY OF LIVE-IN PAID LEAVE. Live-in homecare workers who convert to hourly or separate from live-in service and return as an hourly homecare worker within one year from the last day of live-in services shall be credited with their unused hours of leave up to a maximum of 32 hours.

(D) CASH OUT OF PAID LEAVE.

(i) The Department shall pay live-in homecare workers 50 percent of all unused paid leave accrued as of January 31 of each year. The balance of paid leave is reduced 50 percent with the cash out.

(ii) Vouchers requesting payment of paid leave received after January 31 may only be paid up to the amount of remaining unused paid leave.

(iii) Effective November 6, 2009, a live-in homecare worker providing live-in services seven days per week for one client-employer may submit a request for payment of 100 percent of unused paid leave if:

(I) The live-in homecare worker’s client-employer is no longer eligible for in-home services described in OAR chapter 411, division 030; and

(II) The live-in homecare worker does not have alternative residential housing.

(iv) If a request for payment of 100 percent of unused paid leave based on subparagraph (D)(iii)(I) and (II) of this subsection is granted, the homecare’s paid leave balance is reduced to zero.

(b) HOURLY HOMECARE WORKERS. On July 1st of each year, active homecare workers who worked 80 authorized and paid hours in any one of the three months that immediately precede July (April, May, June) shall be credited with one 16 hour block of paid leave to use during the current fiscal biennium (July 1 through June 30) in which it was accrued. On February 1st of each year, active employees who worked 80 authorized and paid hours in any one of the three months that immediately precede February (November, December, January) shall be credited with 16 hours of paid time off. One 16 hour block of paid leave shall be credited to each eligible homecare worker, irrespective of the number of clients they serve. Such leave may not be cumulative from biennium to biennium.

(A) UTILIZATION OF HOURLY PAID LEAVE.

(i) Time off must be utilized in one eight hour block subject to authorization. If the homecare worker’s normal workday is less than eight hours, such time off may be utilized in blocks equivalent to the normal workday. Any remaining hours that are less than the normally scheduled workday may be taken as a single block.

(ii) Hourly homecare workers may take unused paid leave when their employer is temporarily unavailable for the homecare worker to provide services.

(B) LIMITATIONS OF HOURLY PAID LEAVE. Homecare workers may not be compensated for paid leave unless the time off work is actually taken except as noted in subsection (b)(D) of this section.

(C) TRANSFERABILITY OF HOURLY PAID LEAVE. An hourly homecare worker who transfers to work as a live-in homecare worker (within the biennium that their hourly leave is earned) shall maintain their balance of hourly paid leave and begin accruing live-in paid leave.

(D) CASH OUT OF PAID LEAVE.

(i) The Department shall pay hourly providers for all unused paid leave accrued as of January 31 of each year. The balance of paid leave is reduced to zero with the cash out.

(ii) Vouchers requesting payment of paid leave received after January 31 may not be paid if paid leave has already been cashed out.

(10) DIVISION FISCAL AND ACCOUNTABILITY RESPONSIBILITY.

(a) DIRECT SERVICE PAYMENTS. The Division shall make payment to the provider on behalf of the client for all in-home services. This payment shall be considered full payment for the services rendered under Title XIX. Under no circumstances is the homecare worker to demand or receive additional payment for these Title XIX-covered services from the client or any other source. Additional payment to homecare workers for the same services covered by Oregon’s Title XIX Home and Community Based Services Waiver is prohibited.

(b) TIMELY SUBMISSION OF CLAIMS. In accordance with OAR 410-120-1300, all claims for services must be submitted within 12 months of the date of service.

(c) ANCILLARY CONTRIBUTIONS.

(A) FEDERAL INSURANCE CONTRIBUTIONS ACT (FICA). Acting on behalf of the client-employer, the Division shall apply any applicable FICA regulations and shall:

(i) Withhold the homecare worker-employee contribution from payments; and

(ii) Submit the client-employer contribution and the amounts withheld from the homecare worker-employee to the Social Security Administration.

(B) BENEFIT FUND ASSESSMENT. The Workers’ Benefit Fund pays for programs that provide direct benefits to injured workers and their beneficiaries and that assist employers in helping injured workers return to work. The Department of Consumer and Business Services sets the Workers’ Benefit Fund assessment rate for each calendar year. The Division calculates the hours rounded up to the nearest whole hour and deducts an amount rounded up to the nearest cent. Acting on behalf of the client-employer, the Division shall:

(i) Deduct the homecare worker-employees’ share of the Benefit Fund assessment rate for each hour or partial hour worked by each paid homecare worker;

(ii) Collect the client-employer’s share of the Benefit Fund assessment for each hour or partial hour of paid services received; and

(iii) Submit the client and homecare worker’s contributions to the Workers’ Benefit Fund.

(C) The Division shall pay the employer’s share of the unemployment tax.

(d) ANCILLARY WITHHOLDINGS. For the purposes of this subsection of the rule, “labor organization” means any organization that has, as one of its purposes, representing employees in their employment relations.

(A) The Division shall deduct from the homecare worker’s monthly salary or wages the specified amount for payment to a labor organization.

(B) In order to receive this payment, the labor organization must enter into a written agreement with the Division to pay the actual administrative costs of the deductions.

(C) The Division shall pay the deducted amount monthly to the designated labor organization.

(e) STATE AND FEDERAL INCOME TAX WITHHOLDING.

(A) The Division shall withhold state and federal income taxes on all payments to homecare workers, as indicated in the bargaining agreement.

(B) Homecare workers must complete and return a current Internal Revenue Service W-4 form to the local office. The Division shall apply standard income tax withholding practices in accordance with the Code of Federal Regulations, Title 26, Part 31 (26 CFR 31).

(11) HOMECARE WORKER EXPENSES SECONDARY TO PERFORMANCE OF DUTIES.

(a) Providers may be reimbursed at $0.485 cents per mile effective October 1, 2007 when they use their own car for service plan related transportation, if prior authorized by the case manager. If unscheduled transportation needs arise during non-office hours, an explanation as to the need for the transportation must be provided and approved prior to reimbursement.

(b) Medical transportation through the Division of Medical Assistance Programs (DMAP), volunteer transportation, and other transportation services included in the service plan shall be considered a prior resource.

(c) The Department is not responsible for vehicle damage or personal injury sustained while using a personal motor vehicle for DMAP or service plan-related transportation, except as may be covered by workers’ compensation.

(12) BENEFITS. Workers’ compensation as defined in Oregon Revised Statute and health insurance are available to eligible homecare workers as defined in the bargaining agreement. In order to receive homecare worker services, the client-employer must provide written authorization and consent to the Division for the provision of workers’ compensation insurance for their employee.

(13) OVERPAYMENTS. An overpayment is any payment made to a homecare worker by the Division that is more than the person is authorized to receive.

(a) Overpayments are categorized as follows:

(A) Administrative error overpayment. Occurs when the Division failed to authorize, compute, or process the correct amount of in-home service hours or wage rate.

(B) Provider error overpayment. Occurs when the Division overpays the homecare worker due to a misunderstanding or unintentional error.

(C) Fraud overpayment. “Fraud” means taking actions that may result in receiving a benefit in excess of the correct amount, whether by intentional deception, misrepresentation, or failure to account for payments or money received. “Fraud” also means spending payments or money the provider was not entitled to and any act that constitutes fraud under applicable federal or state law (including 42 CFR 455.2). The Division shall determine, based on a preponderance of the evidence, when fraud has resulted in an overpayment. The Department of Justice, Medicaid Fraud Unit shall determine when a Medicaid fraud allegation shall be pursued for prosecution.

(b) Overpayments are recovered as follows:

(A) Overpayments shall be collected prior to garnishments, such as child support, Internal Revenue Service back taxes, and educational loans.

(B) Administrative or provider error overpayments shall be collected at no more than 5 percent of the homecare worker’s gross wages.

(C) The Division shall determine when a fraud overpayment has occurred and the manner and amount to be recovered.

(D) Providers no longer employed as homecare workers shall have any remaining overpayment deducted from their final check. The provider is responsible for repaying the amount in full when the final check is insufficient to cover the remaining overpayment.

Stat. Auth.: ORS 409.050, 410.070, & 410.090

Stats. Implemented: ORS 410.010, 410.020, 410.070, 410.612, & 410.614

Hist.: SPD 17-2004, f. 5-28-04, cert.ef. 6-1-04; SPD 40-2004(Temp), f. 12-30-04, cert. ef. 1-1-05 thru 6-30-05; SPD 10-2005, f. & cert. ef. 7-1-05; SPD 15-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 28-2006(Temp), f. 10-18-06, cert. ef. 10-23-06 thru 4-20-07; SPD 4-2007, f. 4-12-07, cert. ef. 4-17-07; SPD 18-2007(Temp), f. 10-30-07, cert. ef. 11-1-07 thru 4-29-08; SPD 6-2008, f. 4-28-08, cert. ef. 4-29-08; SPD 16-2009(Temp), f. & cert. ef. 12-1-09 thru 5-30-10; SPD 3-2010, f. 5-26-10, cert. ef. 5-30-10; SPD 4-2010(Temp), f. 6-23-10, cert. ef. 7-1-10 thru 12-28-10; SPD 26-2010, f. 11-29-10, cert. ef. 12-1-10

Rule Caption: Community Developmental Disability Program.

Adm. Order No.: SPD 27-2010(Temp)

Filed with Sec. of State: 12-1-2010

Certified to be Effective: 12-1-10 thru 5-30-11

Notice Publication Date:

Rules Amended: 411-320-0030, 411-320-0045, 411-320-0130, 411-320-0170

Subject: In response to legislatively required budget reductions effective August 1, 2010, October 1, 2010, and projected reductions March 1, 2011, the Department of Human Services (DHS), Seniors and People with Disabilities Division (SPD) is temporarily amending various community developmental disability program rules (CDDP) in OAR chapter 411, division 320 to:

      • Eliminate the position requirements for Quality Assurance (QA) to reflect the reduction of the financial resources for this position;

      • Change SPD’s process for conducting administrative reviews in response to complaints that may qualify for such review which will allow for an administrative review to be conducted by either a SPD Manager or Administrative Review Committee; and

      • Revise the site visit and monitoring of services requirements at DHS licensed and certified programs.

Rules Coordinator: Christina Hartman—(503) 945-6398

411-320-0030

Organization and Program Management

(1) ORGANIZATION AND INTERNAL MANAGEMENT. Each service provider of community developmental disability services funded by the Division must have written standards governing the operation and management of the program. Such standards must be up to date, available upon request, and include:

(a) An up-to-date organization chart showing lines of authority and responsibility from the LMHA to the CDDP manager and the components and staff within the agency;

(b) Position descriptions for all staff providing community developmental disability services;

(c) Personnel policies and procedures concerning:

(A) Recruitment and termination of employees;

(B) Employee compensation and benefits;

(C) Employee performance appraisals, promotions, and merit pay;

(D) Staff development and training;

(E) Employee conduct (including the requirement that abuse of an individual by an employee, staff, or volunteer of the CDDP is prohibited and is not condoned or tolerated); and

(F) Reporting of abuse (including the requirement that any employee of the CDDP is to report incidents of abuse when the employee comes in contact with and has reasonable cause to believe that an individual has suffered abuse). Notification of mandatory reporting status must be made at least annually to all employees and documented on forms provided by the Division.

(2) MANAGEMENT PLAN. The CDDP must maintain a current plan assigning responsibility for the developmental disabilities program management functions and duties described in this rule including quality assurance activities and functions consistent with the Department’s Quality Management Strategy for Developmental Disabilities. The Management Plan must assure that the functions and duties are assigned to people who have the knowledge and experience necessary to perform them, as well as ensuring that these functions shall be implemented.

(3) PROGRAM MANAGEMENT. Staff delivering developmental disability services must be organized under the leadership of a designated CDDP manager and receive clerical support services sufficient to perform their required duties.

(a) The LMHA, public entity, or the public or private corporation operating the CDDP must designate a full-time employee who must, on at least a part-time basis, be responsible for management of developmental disability services within a specific geographic service area.

(b) In addition to other duties as may be assigned in the area of developmental disability services, the CDDP must at a minimum develop and assure:

(A) Implementation of plans as may be needed to provide a coordinated and efficient use of resources available to serve individuals;

(B) Maintenance of positive and cooperative working relationships with families, advocates, service providers, support service brokerages, the Division, local government, and other state and local agencies with an interest in developmental disability services;

(C) Implementation of programs funded by the Division to encourage pursuit of defined program outcomes and monitor the programs to assure service delivery that is in compliance with related contracts and applicable local, state, and federal requirements;

(D) Collection and timely reporting of information as may be needed to conduct business with the Division including but not limited to information needed to license foster homes, collect federal funds supporting services, and investigate complaints related to services or suspected abuse; and

(E) Use of procedures that attempt to resolve complaints involving individuals or organizations that are associated with developmental disability services.

(4) QUALIFIED STAFF. Only qualified staff shall provide developmental disability services.

(a) Each CDDP must provide a qualified CDDP manager, services coordinator, eligibility specialist, and abuse investigator specialist for adults with developmental disabilities, or have an agreement with another CDDP to provide a qualified eligibility specialist and abuse investigator specialist for adults with developmental disabilities.

(A) CDDP MANAGER.

(i) The CDDP manager must have knowledge of the public service system for developmental disability services in Oregon and at least:

(I) A bachelor’s degree in behavioral, social, health science, special education, public administration, or human service administration AND a minimum of four years experience, with at least two of those years of experience in developmental disability services that provided recent experience in program management, fiscal management, and staff supervision; or

(II) Six years of experience in supervision or six years of experience in staff technical or professional level work related to developmental disability services.

(ii) On an exceptional basis, the CDDP may hire a person who does not meet the qualifications in subsection (a)(A)(i) of this section if the county and the Division have mutually agreed on a training and technical assistance plan that assures that the person shall quickly acquire all needed skills and experience.

(iii) When the position of CDDP manager becomes vacant, an interim CDDP manager must be appointed to serve until a permanent CDDP manager is appointed. The CDDP must request a variance as described in section (5) of this rule if the person appointed as interim CDDP manager does not meet the qualifications in subsection (a)(A)(i) of this section and the term of the appointment totals more than 180 days.

(B) CDDP SUPERVISOR. The CDDP supervisor (when available) must have knowledge of the public service system for developmental disability services in Oregon and at least:

(i) A bachelor’s degree or equivalent course work in a field related to management such as business or public administration, or a field related to developmental disability services, may be substituted for up to three years required experience; or

(ii) Five years of experience in supervision or five years of experience in staff technical or professional level work related to developmental disability services.

(C) SERVICES COORDINATOR. The services coordinator must have knowledge of the public service system for developmental disability services in Oregon and at least:

(i) A bachelor’s degree in behavioral science, social science, or a closely related field; or

(ii) A bachelor’s degree in any field AND one year of human services related experience; or

(iii) An associate’s degree in a behavioral science, social science, or a closely related field AND two years human services related experience; or

(iv) Three years of human services related experience.

(D) ELIGIBILITY SPECIALIST. The eligibility specialist must have knowledge of the public service system for developmental disability services in Oregon and at least:

(i) A bachelor’s degree in behavioral science, social science, or a closely related field; or

(ii) A bachelor’s degree in any field AND one year of human services related experience; or

(iii) An associate’s degree in a behavioral science, social science, or a closely related field AND two years human services related experience; or

(iv) Three years of human services related experience.

(E) ABUSE INVESTIGATOR SPECIALIST. The abuse investigator specialist must have at least:

(i) A bachelor’s degree in human, social, behavioral, or criminal science AND two years human services, law enforcement, or investigative experience; or

(ii) An associate’s degree in the human, social, behavioral, or criminal science AND four years human services, law enforcement, or investigative experience.

(b) An application for employment at the CDDP must inquire whether an applicant has had any founded reports of child abuse or substantiated abuse.

(c) Any employee, volunteer, advisor of the CDDP, or any subject individual defined by OAR 407-007-0200 to 407-007-0370 including staff who are not identified in this rule but use public funds intended for the operation of the CDDP, and who has or will have contact with an eligible individual of the CDDP, must have an approved criminal records check in accordance with OAR 407-007-0200 to 407-007-0370 and under ORS 181.534.

(A) Effective July 28, 2009, the CDDP may not use public funds to support, in whole or in part, any employee, volunteer, advisor of the CDDP, or any subject individual defined by OAR 407-007-0200 to 407-007-0370, who will have contact with a recipient of CDDP services and who has been convicted of any of the disqualifying crimes listed in OAR 407-007-0275.

(B) Effective July 28, 2009, a person does not meet the qualifications as described in this rule if the person has been convicted of any of the disqualifying crimes listed in OAR 407-007-0275.

(C) Any employee, volunteer, advisor of the CDDP, or any subject individual defined by OAR 407-007-0200 to 407-007-0370 must self-report any potentially disqualifying condition as described in OAR 407-007-0280 and 407-007-0290. The person must notify the Department or its designee within 24 hours.

(d) Subsections (c)(A) and (B) of this section do not apply to employees who were hired prior to July 28, 2009 and remain in the current position for which the employee was hired.

(5) VARIANCE. The CDDP must submit a written variance request to the Division prior to employment of a person not meeting the minimum qualifications in section (4)(a) of this rule. A variance request may not be requested for sections (4)(b) and (c) of this rule. The written variance request must include:

(a) An acceptable rationale for the need to employ a person who does not meet the minimum qualifications in section (4)(a) of this rule; and

(b) A proposed alternative plan for education and training to correct the deficiencies.

(A) The proposal must specify activities, timelines, and responsibility for costs incurred in completing the alternative plan.

(B) A person who fails to complete the alternative plan for education and training to correct the deficiencies may not fulfill the requirements for the qualifications.

(6) STAFF DUTIES.

(a) SERVICES COORDINATOR DUTIES. The duties of the services coordinator must be specified in the employee’s job description and at a minimum include:

(A) The delivery of case management services to individuals as listed in OAR 411-320-0090(4);

(B) Assisting the CDDP manager in monitoring the quality of services delivered within the county; and

(C) Assisting the CDDP manager in the identification of existing and insufficient service delivery resources or options.

(b) ELIGIBILITY SPECIALIST DUTIES. The duties of the eligibility specialist must be specified in the employee’s job description and at a minimum include:

(A) Completing intake and eligibility determination for persons applying for developmental disability services;

(B) Completing eligibility redetermination for individuals requesting continuing developmental disability services; and

(C) Assisting the CDDP manager in the identification of existing and insufficient service delivery resources or options.

(c) ABUSE INVESTIGATOR SPECIALIST DUTIES. The duties of the abuse investigator specialist must be specified in the employee’s job description and at a minimum include:

(A) Conducting abuse investigation and protective services for adult individuals with developmental disabilities enrolled in, or previously eligible and voluntarily terminated from, developmental disability services;

(B) Assisting the CDDP manager in monitoring the quality of services delivered within the county; and

(C) Assisting the CDDP manager in the identification of existing and insufficient service delivery resources or options.

(7) STAFF TRAINING. Qualified staff of the CDDP must maintain and enhance their knowledge and skills through participation in education and training. The Department provides training materials and the provision of training may be conducted by the Division or CDDP staff, depending on available resources.

(a) CDDP MANAGER TRAINING. The CDDP manager must participate in a basic training sequence and be knowledgeable of the duties of the staff they supervise and the developmental disability services they manage. The basic training sequence is not a substitute for the normal procedural orientation that must be provided by the CDDP to the new CDDP manager.

(A) The orientation provided by the CDDP to a new CDDP manager must include:

(i) An overview of developmental disability services and related human services within the county;

(ii) An overview of the Division’s rules governing the CDDP;

(iii) An overview of the Division’s licensing and certification rules for service providers;

(iv) An overview of the enrollment process and required documents needed for enrollment into the Division’s payment and reporting systems;

(v) A review and orientation of Medicaid, Supplemental Security Income (SSI), Social Security Administration (SS), home and community-based waiver services, the Oregon Health Plan (OHP), and the individual support planning processes; and

(vi) A review (prior to having contact with individuals) of the CDDP manager’s responsibility as a mandatory reporter of abuse, including abuse of individuals with developmental disabilities, mental illness, seniors, and children.

(B) The CDDP manager must attend the following trainings endorsed or sponsored by the Division within the first year of entering into the position:

(i) Case management basics; and

(ii) ISP training.

(C) The CDDP manager must continue to enhance his or her knowledge, as well as maintain a basic understanding of developmental disability services and the skills, knowledge, and responsibilities of the staff they supervise.

(i) Each CDDP manager must participate in a minimum of 20 hours per year of additional Division-sponsored or other training in the area of developmental disabilities.

(ii) Each CDDP manager must attend trainings to maintain a working knowledge of system changes in the area the CDDP manager is managing or supervising.

(b) CDDP SUPERVISOR TRAINING. The CDDP supervisor (when designated) must participate in a basic training sequence and be knowledgeable of the duties of the staff they supervise and of the developmental disability services they manage. The basic training sequence is not a substitute for the normal procedural orientation that must be provided by the CDDP to the new CDDP supervisor.

(A) The orientation provided by the CDDP to a new CDDP supervisor must include:

(i) An overview of developmental disability services and related human services within the county;

(ii) An overview of the Division’s rules governing the CDDP;

(iii) An overview of the Division’s licensing and certification rules for service providers;

(iv) An overview of the enrollment process and required documents needed for enrollment into the Division’s payment and reporting systems;

(v) A review and orientation of Medicaid, SSI, SS, home and community-based waiver services, OHP, and the individual support planning processes; and

(vi) A review (prior to having contact with individuals) of the CDDP supervisor’s responsibility as a mandatory reporter of abuse, including abuse of individuals with developmental disabilities, mental illness, seniors, and children.

(B) The CDDP supervisor must attend the following trainings endorsed or sponsored by the Division within the first year of entering into the position:

(i) Case management basics; and

(ii) ISP training.

(C) The CDDP supervisor must continue to enhance his or her knowledge, as well as maintain a basic understanding of developmental disability services and the skills, knowledge, and responsibilities of the staff they supervise.

(i) Each CDDP supervisor must participate in a minimum of 20 hours per year of additional Division-sponsored or other training in the area of developmental disabilities.

(ii) Each CDDP supervisor must attend trainings to maintain a working knowledge of system changes in the area the CDDP supervisor is managing or supervising.

(c) SERVICES COORDINATOR TRAINING. The services coordinator must participate in a basic training sequence. The basic training sequence is not a substitute for the normal procedural orientation that must be provided by the CDDP to the new services coordinator.

(A) The orientation provided by the CDDP to a new services coordinator must include:

(i) An overview of the role and responsibilities of a services coordinator;

(ii) An overview of developmental disability services and related human services within the county;

(iii) An overview of the Division’s rules governing the CDDP;

(iv) An overview of the Division’s licensing and certification rules for service providers;

(v) An overview of the enrollment process and required documents needed for enrollment into the Division’s payment and reporting systems;

(vi) A review and orientation of Medicaid, SSI, SS, home and community-based waiver services, OHP, and the individual support planning processes for the services they coordinate; and

(vii) A review (prior to having contact with individuals) of the services coordinator’s responsibility as a mandatory reporter of abuse, including abuse of individuals with developmental disabilities, mental illness, seniors, and children.

(B) The services coordinator must attend the following trainings endorsed or sponsored by the Division within the first year of entering into the position:

(i) Case management basics; and

(ii) ISP training (for services coordinators providing services to individuals in comprehensive services).

(C) The services coordinator must continue to enhance his or her knowledge, as well as maintain a basic understanding of developmental disability services and the skills, knowledge, and responsibilities necessary to perform the position. Each services coordinator must participate in a minimum of 20 hours per year of Division-sponsored or other training in the area of developmental disabilities.

(d) ELIGIBILITY SPECIALIST TRAINING. The eligibility specialist must participate in a basic training sequence. The basic training sequence is not a substitute for the normal procedural orientation that must be provided by the CDDP to the new eligibility specialist.

(A) The orientation provided by the CDDP to a new eligibility specialist must include:

(i) An overview of eligibility criteria and the intake process;

(ii) An overview of developmental disability services and related human services within the county;

(iii) An overview of the Division’s rules governing the CDDP;

(iv) An overview of the Division’s licensing and certification rules for service providers;

(v) An overview of the enrollment process and required documents needed for enrollment into the Division’s payment and reporting systems;

(vi) A review and orientation of Medicaid, SSI, SS, home and community-based waiver services, and OHP; and

(vii) A review (prior to having contact with individuals) of the eligibility specialist’s responsibility as a mandatory reporter of abuse, including abuse of individuals with developmental disabilities, mental illness, seniors, and children.

(B) The eligibility specialist must attend and complete eligibility core competency training within the first year of entering into the position and demonstrate competency after completion of core competency training. Until completion of eligibility core competency training, or if competency is not demonstrated, the eligibility specialist must consult with another trained eligibility specialist or consult with a Division diagnosis and evaluation coordinator when making eligibility determinations.

(C) The eligibility specialist must continue to enhance his or her knowledge, as well as maintain a basic understanding of the skills, knowledge, and responsibilities necessary to perform the position.

(i) Each eligibility specialist must participate in Division-sponsored trainings for eligibility on an annual basis.

(ii) Each eligibility specialist must participate in a minimum of 20 hours per year of Division-sponsored or other training in the area of developmental disabilities.

(e) ABUSE INVESTIGATOR SPECIALIST TRAINING. The abuse investigator specialist must participate in core competency training. Training materials shall be provided by the OIT. The core competency training is not a substitute for the normal procedural orientation that must be provided by the CDDP to the new abuse investigator specialist.

(A) The orientation provided by the CDDP to a new abuse investigator specialist must include:

(i) An overview of developmental disability services and related human services within the county;

(ii) An overview of the Division’s rules governing the CDDP;

(iii) An overview of the Division’s licensing and certification rules for service providers;

(iv) A review and orientation of Medicaid, SSI, SS, home and community-based waiver services, OHP, and the individual support planning processes; and

(v) A review (prior to having contact with individuals) of the abuse investigator specialist’s responsibility as a mandatory reporter of abuse, including abuse of individuals with developmental disabilities, mental illness, seniors, and children.

(B) The abuse investigator specialist must attend and pass core competency training within the first year of entering into the position and demonstrate competency after completion of core competency training. Until completion of core competency training, or if competency is not demonstrated, the abuse investigator specialist must consult with OIT prior to completing the abuse investigation and protective services report.

(C) The abuse investigator specialist must continue to enhance his or her knowledge, as well as maintain a basic understanding of the skills, knowledge, and responsibilities necessary to perform the position. Each abuse investigator specialist must participate in quarterly meetings held by OIT. At a minimum, one meeting per year must be attended in person.

(f) ATTENDANCE. The CDDP manager must assure the attendance of the CDDP supervisor, services coordinator, eligibility specialist, or abuse investigator specialist at Division-mandated training.

(g) DOCUMENTATION. The CDDP must keep documentation of required training in the personnel files of the individual employees including the CDDP manager, CDDP supervisor, services coordinator, eligibility specialist, abuse investigator specialist, and other employees providing services to individuals.

(8) ADVISORY COMMITTEE. Each CDDP must have an advisory committee.

(a) The advisory committee must meet at least quarterly.

(b) The membership of the advisory committee must be broadly representative of the community, with a balance of age, sex, ethnic, socioeconomic, geographic, professional, and consumer interests represented. Membership must include advocates for individuals as well as individuals and their families.

(c) The advisory committee must advise the LMHA, the CMHDDP director, and the CDDP manager on community needs and priorities for services, and must assist in planning and in review and evaluation of services including assisting in the development and review of local quality assurance activities.

(d) When the Division or a private corporation is operating the CDDP, the advisory committee must advise the CDDP director and the CDDP manager on community needs and priorities for services, and must assist in planning and in review and evaluation of services including assisting in the development and review of local quality assurance activities.

(e) The advisory committee may function as the disability issues advisory committee as described in ORS 430.625 if so designated by the LMHA.

(9) NEEDS ASSESSMENT, PLANNING, AND COORDINATION. Upon the Division’s request, the CDDP must assess local needs for services to individuals and must submit planning and assessment information to the Division.

(10) CONTRACTS.

(a) If the CDDP, or any of the CDDPs services as described in the Department’s contract with the LMHA, is not operated by the LMHA, there must be a contract between the LMHA and the organization operating the CDDP or the services, or a contract between the Division and the operating CDDP. The contract must specify the authorities and responsibilities of each party and conform to the requirements of the Department’s rules pertaining to contracts or any contract requirement with regard to operation and delivery of services.

(b) The CDDP may purchase certain services for an individual from a qualified service provider without first providing an opportunity for competition among other service providers if the service provider is selected by the individual, the individual’s family, or the individual’s guardian or legal representative.

(A) The service provider selected must also meet Division certification or licensing requirements to provide the type of service to be contracted.

(B) There must be a contract between the service provider and the CDDP that specifies the authorities and responsibilities of each party and conforms to the requirements of the Department’s rules pertaining to contracts or any contract requirement with regard to operation and delivery of services.

(c) When a CDDP contracts with a public agency or private corporation for delivery of developmental disability services, the CDDP must include in the contract only terms that are substantially similar to model contract terms established by the Department. The CDDP may not add contractual requirements, including qualifications for contractor selection that are nonessential to the services being provided under the contract. The CDDP must specify in contracts with service providers that disputes arising from these limitations must be resolved according to the complaint procedures contained in OAR 411-320-0170. For purposes of this rule, the following definitions apply:

(A) “Model contract terms established by the Department” means all applicable material terms and conditions of the omnibus contract, as modified to appropriately reflect a contractual relationship between the service provider and CDDP and any other requirements approved by the Division as local options under procedures established in these rules.

(B) “Substantially similar to model contract terms” means that the terms developed by the CDDP and the model contract terms require the service provider to engage in approximately the same type activity and expend approximately the same resources to achieve compliance.

(C) “Nonessential to the services being provided” means requirements that are not substantially similar to model contract terms developed by the Department.

(d) The CDDP may, as a local option, impose on a public agency or private corporation delivering developmental disability services under a contract with the CDDP, a requirement that is in addition to or different from requirements specified in the omnibus contract if all of the following conditions are met:

(A) The CDDP has provided the affected contractors with the text of the proposed local option as it would appear in the contract. The proposed local option must include:

(i) The date upon which the local option would become effective and a complete written description of how the local option would improve individual independence, productivity, or integration; or

(ii) How the local option would improve the protection of individual health, safety, or rights;

(B) The CDDP has sought input from the affected contractors concerning ways the proposed local option impacts individual services;

(C) The CDDP, with assistance from the affected contractors, has assessed the impact on the operations and financial status of the contractors if the local option is imposed;

(D) The CDDP has sent a written request for approval of the proposed local option to the Division’s Assistant Director that includes:

(i) A copy of the information provided to the affected contractors;

(ii) A copy of any written comments and a complete summary of oral comments received from the affected contractors concerning the impact of the proposed local option; and

(iii) The text of the proposed local option as it would appear in contracts with service providers, including the proposed date upon which the requirement would become effective.

(E) The Division has notified the CDDP that the new requirement is approved as a local option for that program; and

(F) The CDDP has advised the affected contractors of their right and afforded them an opportunity to request mediation as provided in these rules before the local option is imposed.

(e) The CDDP may add contract requirements that the CDDP considers necessary to ensure the siting and maintenance of residential facilities in which individual services are provided. These requirements must be consistent with all applicable state and federal laws and regulations related to housing.

(f) The CDDP must adopt a dispute resolution policy that pertains to disputes arising from contracts with service providers funded by the Division and contracted through the CDDP. Procedures implementing the dispute resolution policy must be included in the contract with any such service provider.

(11) FINANCIAL MANAGEMENT.

(a) There must be up-to-date accounting records for each developmental disability service accurately reflecting all revenue by source, all expenses by object of expense, and all assets, liabilities, and equities. The accounting records must be consistent with generally accepted accounting principles and conform to the requirements of OAR 309-013-0120 to 309-013-0220.

(b) There must be written statements of policy and procedure as are necessary and useful to assure compliance with any Department administrative rules pertaining to fraud and embezzlement and financial abuse or exploitation of individuals.

(c) Billing for Title XIX funds must in no case exceed customary charges to private pay individuals for any like item or service.

(12) POLICIES AND PROCEDURES. There must be such other written and implemented statements of policy and procedure as necessary and useful to enable the CDDP to accomplish its service objectives and to meet the requirements of the contract with the Department, these rules, and other applicable standards and rules.

Stat. Auth.: ORS 409.050, 410.070, & 430

Stats. Implemented: ORS 427.005, 427.007, 430.610 - 430.695

Hist.: SPD 24-2003, f. 12-29-03, cert. ef. 1-1-04; SPD 28-2004, f. & cert. ef. 8-3-04; SPD 16-2005(Temp), f. & cert. ef. 11-23-05 thru 5-22-06; SPD 5-2006, f. 1-25-06, cert. ef. 2-1-06; SPD 9-2009, f. & cert. ef. 7-13-09; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 2-2010(Temp), f. & cert. ef. 3-18-10 thru 6-30-10; SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10; SPP 27-2010Temp), f. & cert. ef. 12-1-10 thru 5-30-11

411-320-0045

Quality Assurance Responsibilities

Each CDDP must implement and maintain a local quality assurance (QA) system in accordance with these rules. The local QA system is a set of policies and procedures developed by each CDDP that includes activities designed to measure and evaluate the CDDP service delivery system, produce measurable outcomes, and improve the general quality of service delivery.

(1) QUALITY ASSURANCE SYSTEM. The local QA system must:

(a) Ensure the development and implementation of a QA system by:

(A) Providing direct support to SPD in implementation of the Department’s Quality Management Strategy for developmental disability services; and

(B) Improving the general quality of services by evaluating service delivery outcomes and adjusting local planning and performance where needed.

(b) Include all Division-funded developmental disability services provided within the county, including services that are operated or subcontracted by the CDDP, state operated community programs for developmental disabilities, and those developmental disability services operating under a direct contract with the Department. This includes participation in support services brokerages’ systems improvement planning.

(c) Include at a minimum the quality indicators and all activities that are to be carried out at the local level in compliance with the Department’s Quality Management Strategy.

(d) Include the implementation of the activities defined in the local Management Plan as described in OAR 411-320-0030(2).

(e) Include management actions, as needed, to improve service quality or to correct deficiencies.

(f) Include maintenance of records that document:

(A) The CDDP’s performance of the activities described in the local Management Plan or as directed by the Division; and

(B) The CDDP’s findings, corrective actions, and the impact of the CDDP’s corrective actions that have been reviewed at a policy level within the CDDP’s department structure.

(g) Include performance requirements that meet the minimum performance requirements established for all CDDP’s in the Department’s Quality Management Strategy.

(A) The CDDP must collect and analyze information concerning performance and outcomes of the activities represented in the local Management Plan, in compliance with the Department’s Quality Management Strategy where applicable.

(B) Data concerning the CDDP’s performance must be sent to the Division upon request in the format and within the timelines established by the Division. Data may include but not be limited to:

(i) Minutes from local developmental disability advisory committee meetings;

(ii) Results of customer satisfaction surveys administered by the CDDP; and

(iii) Results of case file reviews.

(h) Include implementation of corrective actions. The CDDP must act to correct deficiencies and substandard performance through management actions.

(A) Deficiencies and substandard performance found in services that are operated or subcontracted by the county must be resolved through direct action by the CDDP, or when appropriate, through collaboration between the CDDP and the Division.

(B) Deficiencies and substandard performance found in services that are operated by the state or through direct state contracts must be resolved through collaboration with the Division.

(C) Deficiencies and substandard performance found in services provided through a region must be resolved through collaboration between the regional management entity and the affected CDDPs.

(D) Deficiencies and substandard performance found in services provided in support services brokerages must be resolved through collaboration between the support services brokerage and the Division.

(2) QUALITY ASSURANCE RESPONSIBILITIES. The CDDP must:

(a) Participate in Division-sponsored activities such as planning and training that are intended to assist in development and implementation of the Department’s Quality Management Strategy requirements, compliance, monitoring procedures, corrective action plans, and other similar activities consistent with QA responsibilities.

(b) Draft a local CDDP Management Plan as described in OAR 411-320-0030(2) that includes QA activities that meet QA requirements established by the Department and consider the unique organizational structure, policies, and procedures of the CDDP.

(c) Coordinate activities within the CDDP such as preparation of materials and training of county staff as needed to implement the local Management Plan.

(d) Monitor the implementation of the local Management Plan to determine the level of county compliance with the Division’s requirements for CDDP service delivery.

(e) Keep CDDP administrative staff informed about compliance issues and need for corrective actions.

(f) Coordinate delivery of information requested by the Division, such as the Serious Event Review Team (SERT).

(g) Coordinate compliance reviews of the Department’s requirements around individual health and welfare, level of care determination, service plans, and developmental disability service delivery by collecting and evaluating data including but not limited to:

(A) Case file reviews;

(B) Customer satisfaction surveys administered at least every two years;

(C) Service provider file reviews;

(D) Analysis of SERT data which may include:

(i) Review by service provider, location, reason, status, outcome, and follow-up;

(ii) Identification of trends; and

(iii) Review of timely reporting of abuse allegations, completion of investigation, and follow-up.

(h) When requested, identify trends and issues from data collected by the CDDP, and make outcome-based recommendations consistent with the Department’s Quality Management Strategy.

Stat. Auth.: ORS 409.050, 410.070, 430.640

Stats. Implemented: ORS 427.005, 427.007, 430.610 - 430.695

Hist.: SPD 9-2009, f. & cert. ef. 7-13-09; SPP 27-2010Temp), f. & cert. ef. 12-1-10 thru 5-30-11

411-320-0130

Site Visits and Monitoring of Services

(1) SITE VISITS TO DIVISION LICENSED OR CERTIFIED SERVICE PROVIDER SITES. The CDDP must ensure that site visits are conducted at each child or adult foster home, each 24-hour residential program site, and each employment provider licensed or certified by the Division to serve individuals with developmental disabilities.

(a) The CDDP must establish a quarterly schedule for site visits to each child or adult foster home and each 24-hour residential program.

(b) The CDDP must establish an annual schedule for visits with individuals receiving supported living services. If an individual opposes a visit to their home, a mutually agreed upon location for the visit must be arranged.

(c) The CDDP must establish an annual schedule for visits to employment or alternatives to employment sites. If a visit to an integrated employment site disrupts the work occurring, a mutually agreed upon location for the visit must be arranged.

(d) Site visits may be increased for the following reasons including but not limited to:

(A) Increased certified and licensed capacity;

(B) New individuals being served;

(C) Newly licensed or certified provider;

(D) An abuse investigation;

(E) A serious event occurring;

(F) A change in the management or staff of the certified or licensed provider;

(G) An ISP team request; or

(H) Individuals who are also receiving crisis services.

(e) The CDDP must develop a procedure for the conduct of the visits to these sites.

(f) The CDDP must document site visits and provide information concerning such visits to the Division upon request.

(g) If there are no Division-funded individuals at the site, a visit by the CDDP is not required.

(h) When the service provider is a Division-contracted and licensed 24-hour residential program for children or is a child foster proctor agency and a Children’s Residential Services Coordinator for the Division is assigned to monitor services, the Children’s Residential Services Coordinator for the Division and CDDP staff shall coordinate who shall visit the home. If the visit is made by Division staff, Division staff shall provide the results of the monitoring visit to the local services coordinator. The Division may conduct monitoring visits on a more frequent basis than described in this section based on program needs.

(2) MONITORING OF SERVICES: The services coordinator must conduct monitoring activities using the framework described in this section.

(a) For individuals residing in 24-hour residential programs, supported living, foster care, or employment or alternatives to employment services, ongoing reviews of the individual’s ISP shall determine whether the actions identified by the ISP team are being implemented by service providers and others. The review of an ISP shall include an assessment of the following:

(A) Are services being provided as described in the plan document and do they result in the achievement of the identified action plans;

(B) Are the personal, civil, and legal rights of the individual protected in accordance with this rule;

(C) Are the personal desires of the individual, the individual’s legal representative, or family addressed;

(D) Do the services provided for in the plan continue to meet what is important to and for the individual; and

(E) Do identified goals remain relevant and are the goals supported and being met?

(b) For individuals residing in 24-hour residential programs, supported living, foster care, or receiving employment or alternatives to employment, the monitoring of services may be combined with the site visits described in section (1) of this rule. In addition:

(A) During a one year period, the services coordinator shall review, at least once, services specific to health, safety, and behavior, using questions established by the Division.

(B) A semi-annual review of the process by which an individual accesses and utilizes funds must occur.

(i) For individuals receiving 24-hour residential services, the financial review standards are described in OAR 411-325-0380.

(ii) For individuals receiving adult foster care services, the financial review standards are described in OAR 411-360-0170.

(iii) Any misuse of funds must be reported to the CDDP and the Division. The Division shall determine whether a referral to the Medicaid Fraud Control Unit is warranted.

(C) The Services Coordinator must monitor reports of serious and unusual incidents.

(c) For individuals receiving employment or alternatives to employment services, the services coordinator must facilitate a team discussion using the Division’s Employment First Policy as the framework for assessing where the individual is on a path to employment. If an individual chooses to not participate in a path to employment, the process by which the individual made an informed decision must be documented.

(d) The frequency of service monitoring must be determined by the needs of the individual. Events identified in section (1)(d) of this rule provide indicators that potentially increase the need for service monitoring.

(e) For individuals receiving only case management services and who are not enrolled in any other funded developmental disability service, the services coordinator must make contact with the individual at least once annually.

(A) Whenever possible, annual contact must be made in person. If annual contact is not made in person, the progress note must document how contact was achieved.

(B) The services coordinator must document annual contact in an Annual Plan as described in OAR 411-320-0120(2)(f).

(C) If the individual has any identified high-risk medical issue including but not limited to risk of death due to aspiration, seizures, constipation, dehydration, diabetes, or significant behavioral issues, the services coordinator must maintain contact in accordance with planned actions as described in the individual’s Annual Plan.

(D) Any follow-up activities must be documented in progress notes.

(3) MONITORING FOLLOW-UP. The services coordinator and the CDDP are responsible for ensuring the appropriate follow-up to monitoring of services, except in the instance of children in a Division direct contract 24-hour residential service when the Division may conduct the follow-up.

(a) If the services coordinator determines that comprehensive services are not being delivered as agreed in the plan, or that an individual’s service needs have changed since the last review, the services coordinator must initiate action to update the plan.

(b) If there are concerns regarding the service provider’s ability to provide services, the CDDP, in consultation with the services coordinator, must determine the need for technical assistance or other follow-up activities. This may include coordination or provision of technical assistance, referral to the CDDP manager for consultation or corrective action, requesting assistance from the Division for licensing or other administrative support, or meeting with the service provider executive director or board of directors. In addition to conducting abuse or other investigations as necessary, the CDDP must notify the Division when:

(A) A service provider demonstrates substantial failure to comply with any applicable licensing or certification rules for Division-funded programs;

(B) The CDDP finds a serious and current threat endangering the health, safety, or welfare of individuals in a program for which an immediate action by the Division is required; or

(C) Any individual receiving Division-funded developmental disability services dies. Notification must be made to the Medical Director of the Division or his or her designee within one working day of the death. Entry must be made into the Serious Event Review System according to Department guidelines.

Stat. Auth.: ORS 409.050, 410.070, 430.640

Stats. Implemented: ORS 427.005, 427.007, 430.610 - 430.695

Hist.: SPD 24-2003, f. 12-29-03, cert. ef. 1-1-04; SPD 28-2004, f. & cert. ef. 8-3-04; SPD 16-2005(Temp), f. & cert. ef. 11-23-05 thru 5-22-06; SPD 5-2006, f. 1-25-06, cert. ef. 2-1-06; SPD 9-2009, f. & cert. ef. 7-13-09; SPP 27-2010(Temp), f. & cert. ef. 12-1-10 thru 5-30-11

411-320-0170

Complaints

(1) COMPLAINT LOG. The CDDP must maintain a log of all complaints received regarding the CDDP or any subcontract agency providing services to individuals.

(a) The complaint log, at a minimum, must include:

(A) The date the complaint was received;

(B) The name of the person taking the complaint;

(C) The nature of the complaint;

(D) The name of the person making the complaint, if known; and

(E) The disposition of the complaint.

(b) CDDP personnel issues and allegations of abuse may be maintained separately from a central complaint log. If a complaint resulted in disciplinary action against a staff member, the documentation must include a statement that personnel action was taken.

(2) COMPLAINTS. The CDDP must address all complaints by individuals or subcontractors in accordance with CDDP policies, procedures, and these rules. Copies of the procedures for resolving complaints must be maintained on file at the CDDP offices. The complaint procedures must be available to county employees who work with individuals, individuals who are receiving services from the county and the individual’s families, the individual’s legal representatives, advocates, service providers, and the Division.

(a) SUBCONTRACTOR COMPLAINTS. When a dispute exists between a CDDP and a subcontracted service provider regarding the terms of their contract or the interpretation of Division administrative rules and local dispute resolution efforts have been unsuccessful, either party may request assistance from the Division in mediating the dispute.

(A) The parties must demonstrate a spirit of cooperation, mutual respect, and good faith in all aspects of the mediation process. Mediation must be conducted as follows:

(i) The party requesting mediation must send a written request to the Assistant Director of the Division, the CDDP director, and the service provider agency director, unless other persons are named as official contact persons in the specific rule or contract under dispute. The request must describe the nature of the dispute and identify the specific rule or contract provisions that are central to the dispute.

(ii) Division staff shall arrange the first meeting of the parties at the earliest possible date. The agenda for the first meeting shall include:

(I) Consideration of the need for services of an outside mediator. If the services of an unbiased mediator are desired, agreement shall be made on arrangements for obtaining these services;

(II) Development of rules and procedures that shall be followed by all parties during the mediation; and

(III) Agreement on a date by which mediation shall be completed, unless extended by mutual agreement.

(iii) Unless otherwise agreed to by all parties:

(I) Each party shall be responsible for the compensation and expenses of their own employees and representatives; and

(II) Costs that benefit the group, such as services of a mediator, rental of meeting space, purchase of snack food and beverage, etc. shall be shared equally by all parties.

(B) A written statement documenting the outcome of the mediation must be prepared. This statement must consist of a brief written statement signed by all parties or separate statements from each party declaring their position on the dispute at the conclusion of the mediation process. In the absence of written statements from other parties, the Division shall prepare the final report. A final report on each mediation must be retained on file at the Division.

(b) CONTRACT NOT SUBSTANTIALLY SIMILAR. A service provider may appeal the imposition of a disputed term or condition in the contract if the service provider believes that the contract offered by the CDDP contains terms or conditions that are not substantially similar to those established in the Department’s model contract. The service provider’s appeal of the imposition of the disputed terms or conditions must be in writing and sent to the Assistant Director of the Division within 30 calendar days after the effective date of the contract requirement.

(A) A copy of notice of appeal must be sent to the CDDP. The notice of appeal must include:

(i) A copy of the contract and any pertinent contract amendments;

(ii) Identification of the specific terms that are in dispute; and

(iii) A complete written explanation of the dissimilarity between terms.

(B) Upon receipt of the notice of appeal, the CDDP must suspend enforcement of compliance with any contract requirement under appeal by the contractor until the appeal process is concluded.

(C) The Assistant Director of the Division must offer to mediate a solution in accordance with the procedure outlined in subsections (a)(A) and (a)(B) of this section.

(i) If a solution cannot be mediated, the Assistant Director of the Division shall declare an impasse through written notification to all parties and immediately appoint a panel to consider arguments from both parties. The panel must include at a minimum:

(I) A representative from the Division;

(II) A representative from another CDDP; and

(III) A representative from another service provider organization.

(ii) The panel must meet with the parties, consider their respective arguments, and send written recommendations to the Assistant Director of the Division within 45 business days after an impasse is declared, unless the Assistant Director of the Division grants an extension.

(iii) If an appeal requiring panel consideration has been received from more than one contractor, the Division may organize materials and discussion in any manner it deems necessary, including combining appeals from multiple contractors, to assist the panel in understanding the issues and operating efficiently.

(iv) The Assistant Director of the Division must notify all parties of his or her decision within 15 business days after receipt of the panel’s recommendations. The decision of the Division is final. The CDDP must take immediate action to amend contracts as needed to comply with the decision.

(D) Notwithstanding subsection (b)(C) of this section, the Assistant Director of the Division has the right to deny the appeal or a portion of the appeal if, upon receipt and review of the notice of appeal, the Assistant Director of the Division finds that the contract language being contested is identical to the current language in the county financial assistance agreement with the Division.

(E) The CDDP or the contractor may request an expedited appeal process that provides a temporary resolution if it can be shown that the time needed to follow procedures to reach a final resolution would cause imminent risk of serious harm to individuals or organizations.

(i) The request must be made in writing to the Assistant Director of the Division. The request must describe the potential harm and level of risk that shall be incurred by following the appeal process.

(ii) The Division shall notify all parties of its decision to approve an expedited appeal process within two business days.

(iii) If an expedited process is approved, the Division shall notify all parties of the Division’s decision concerning the dispute within three additional business days. The decision resulting from an expedited appeal process shall be binding, but temporary, pending completion of the appeal process. All parties must act according to the temporary decision until notified of a final decision.

(c) COMPLAINTS BY OR ON BEHALF OF INDIVIDUALS. An individual, the individual’s guardian or other legal representative, a family member, or advocate may file a complaint with the CDDP:

(A) INFORMAL COMPLAINT RESOLUTION. An individual or someone acting on behalf of the individual must have an opportunity to informally discuss and resolve any complaint that is contrary to law, rule, policy, or that is otherwise contrary to the interest of the individual and that does not meet the criteria for an abuse investigation. Choosing an informal resolution does not preclude an individual or someone acting on behalf of the individual from pursuit of resolution through formal complaint processes. Any agreement to resolve the complaint must be reduced to writing and must be specifically approved by the complainant. The complainant must be provided with a copy of such agreement.

(B) The CDDP must follow its policies and procedures regarding receipt and resolution of a complaint.

(C) The CMHDDP or CDDP director must provide to the complainant a written decision regarding the complaint within 30 days following receipt of the complaint.

(i) The written decision regarding the complaint must contain the rationale for the decision, and must list the reports, documents, or other information relied upon in making the decision.

(ii) Along with the written decision, the complainant must also be provided a notice that the documents relied upon in making the decision may be reviewed by the individual or the person who filed the complaint.

(iii) Along with the written decision, the complainant must also be provided a notice that the complainant has the right to request an administrative review of the decision by the Division. Such notice, must be written in clear, simple language and at a minimum explain how and when to request such a review and when a final decision shall be rendered by the Assistant Director of the Division.

(D) ADMINISTRATIVE REVIEW. Following a decision by the CMHDDP director regarding a complaint, the complainant may request an administrative review by Division administration.

(E) The complainant must submit to the Division a request for an administrative review within 15 days from the date of the decision by the CMHDDP director.

(F) Upon receipt of a request for an administrative review, the complaint shall be referred for either a Management Review by the Division or to an Administrative Review Committee according to Division policy.

(i) MANAGEMENT REVIEW.

(I) A Management Review by Division administration shall include a review of the complaint and shall determine if the decision made was consistent with the Division’s rules and policies.

(II) Division administration shall make a final decision within 55 days of receipt of the request. The written decision shall contain the rationale for the decision.

(III) The Division’s decision is final. Any further review is pursuant to the provision of ORS 183.484 for judicial review

(ii) ADMINISTRATIVE REVIEW COMMITTEE.

(I) The Administrative Review Committee shall be comprised of a representative of the Division, a CDDP representative, and a service provider who provides a similar service as the service being reviewed (i.e., residential, employment, foster care, etc). Committee representatives may not have any direct involvement in the provision of services to the complainant or have a conflict of interest in the specific case being reviewed.

(II) The Administrative Review Committee must review the complaint and the decision by the CMHDDP director and make a recommendation to the Assistant Director of the Division within 45 days of receipt of the complaint unless the complainant and the Administrative Review Committee mutually agree to an extension.

(III) The Assistant Director of the Division shall consider the report and recommendations of the Administrative Review Committee and make a final decision. The decision shall be in writing and issued within 10 days of receipt of the recommendation by the Administrative Review Committee. The written decision shall contain the rationale for the decision.

(IV) The decision of the Assistant Director of the Division is final. Any further review is pursuant to the provisions of ORS 183.484.

(d) SPECIFIC COMPLAINTS. Individuals, or the individual’s guardian or legal representative may request a review of specific decisions by the CDDP or a service provider as follows:

(A) Complaints of entry, exit, or transfer decisions within residential services may only be initiated according to OAR 411-325-0400 for 24-hour residential services and 411-328-0800 for supported living services.

(B) Complaints of entry, exit, or transfer decisions within employment services or community inclusion services may only be initiated according to OAR 411-345-0150.

(C) Appeals of Medicaid eligibility decisions may be initiated according to OAR 411-330-0130(2).

Stat. Auth.: ORS 409.050, 410.070, 430.640

Stats. Implemented: ORS 427.005, 427.007, 430.610 – 430.695

Hist.: SPD 24-2003, f. 12-29-03, cert. ef. 1-1-04; SPD 28-2004, f. & cert. ef. 8-3-04; SPD 16-2005(Temp), f. & cert. ef. 11-23-05 thru 5-22-06; SPD 5-2006, f. 1-25-06, cert. ef. 2-1-06; SPD 9-2009, f. & cert. ef. 7-13-09; SPP 27-2010(Temp), f. & cert. ef. 12-1-10 thru 5-30-11

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.

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