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Oregon Bulletin

March 1, 2011

 

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

Rule Caption: Individual Support Plan for Individuals with Developmental Disabilities.

Adm. Order No.: SPD 1-2011

Filed with Sec. of State: 2-1-2011

Certified to be Effective: 2-1-11

Notice Publication Date:

Rules Renumbered: 309-041-1300 to 411-341-1300, 309-041-1310 to 411-341-1310, 309-041-1320 to 411-341-1320, 309-041-1330 to 411-341-1330, 309-041-1340 to 411-341-1340, 309-041-1350 to 411-341-1350, 309-041-1360 to 411-341-1360, 309-041-1370 to 411-341-1370

Subject: The Department of Human Services, Seniors and People with Disabilities Division is renumbering the rules relating to individual support plans for individuals with developmental disabilities in OAR chapter 309, division 041 to OAR chapter 411, division 341.

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

411-341-1300

Statement of Purpose, Mission Statement and Statutory Authority

(1) Purpose. These rules prescribe standards for the development and implementation of an Individual Support Plan for individuals with developmental disabilities.

(2) Mission statement. The overall mission of the State of Oregon Mental Health and Developmental Disability Services Division, Office of Developmental Disability Services, is to provide support services that will enhance the quality of life of persons with developmental disabilities.

(a) While the service system reflects the value of family member(s) participation in the ISP process, the Division also recognizes the rights of adults to make informed choices about the level of participation by family members. It is the intent of this rule to fully support the provision of education about personal control and decision-making to individuals who are receiving services.

(b) The ISP process is critical in determining the individual’s and the family’s preferences for services and supports. The preferences of the individual and family shall serve to guide the team. The individual’s active participation and input shall be facilitated throughout the planning process.

(c) The ISP process is designed to identify the types of services and supports necessary to achieve the individual’s and family’s preferences, identify the barriers to providing those preferred services and develop strategies for reducing the barriers.

(d) The ISP process should also identify strategies to assist the individual in the exercise of his or her rights. This may create tensions between the freedom of choice and interventions necessary to protect the individual from harm. The ISP team must carefully nurture the individual’s exercise of rights while being equally sensitive to protecting the individual’s health and safety.

(e) The ISP team assigns responsibility for obtaining or providing services to meet those needs.

(3) Statutory authority. These rules are authorized by ORS 430.041 and carry out the provisions of 430.610 to 430.670 and 427.005 to 427.007.

Stat. Auth.: ORS 430.041

Stats. Implemented: ORS 430.610 - 430.670 & 427.005 - 427.007

Hist.: MHD 9-1997, f. & cert. ef. 10-9-97; Renumbered from 309-041-1300, SPD 1-2011, f. & cert. ef. 2-1-11

411-341-1310

Definitions

As used in these rules:

(1) “Abuse investigation and protective services” means an investigation as required by OAR 309-040-0240 and any subsequent services or supports necessary to prevent further abuse.

(2) “Abuse of an Adult” means:

(a) Any death caused by other than accidental or natural means, or occurring in unusual circumstances;

(b) Any physical injury caused by other than accidental means, or that appears to be at variance with the explanation given of the injury;

(c) Willful infliction of physical pain or injury;

(d) Sexual harassment or exploitation including, but not limited to, any sexual contact between an employee of a community facility or community program, or service provider or other staff and the adult. Sexual exploitation also includes failure of staff to discourage sexual advances towards staff by adults served. For situations other than those involving an employee, service provider, or other staff and an adult, sexual harassment or exploitation means unwelcome verbal or physical sexual contact including requests for sexual favors and other verbal or physical behavior directed toward the adult;

(e) Failure to act/neglect that leads to or is in imminent danger of causing physical injury, through negligent omission, treatment, or maltreatment of an adult, including but not limited to the failure of a service provider or staff to provide an adult with adequate food, clothing, shelter, medical care, supervision, or through condoning or permitting abuse of an adult by any other person. However, no person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment through prayer alone in lieu of medical treatment;

(f) Verbal mistreatment by subjecting an adult to the use of derogatory names, phrases, profanity, ridicule, harassment, coercion or intimidation and threatening injury or withholding of services or supports. However, it is not considered verbal mistreatment in situations where the consequences of non-compliance may result in termination of services if agreed upon by the ISP team, including implied or direct threat of termination of services;

(g) Placing restrictions on an individual’s freedom of movement by seclusion in a locked room under any condition, restriction to an area of the residence or from access to ordinarily accessible areas of the residence, unless arranged for and agreed to on the Individual’s Support Plan;

(h) Using restraints without written physician’s order, or unless an individual’s actions present an imminent danger to himself/herself or others and in such circumstances only until other appropriate action is taken by medical, emergency or police personnel or unless arranged for and agreed to on the ISP;

(i) Financial exploitation which may include, but is not limited to, unauthorized rate increases, staff borrowing from or loaning money to individuals, witnessing wills in which the program is beneficiary, adding program’s name to individual’s bank accounts or other personal property without approval of the individual, his/her legal guardian, and the ISP team; and

(j) Inappropriately expending the individual’s personal funds, theft of an individual’s personal funds, using an individual’s personal funds for staff’s own benefit, commingling the individual’s funds with program and/or other individuals’ funds, or the program becoming guardian or conservator.

(3) “Adult” means an individual 18 years or older with developmental disabilities for whom services are planned and provided.

(4) “Advocate” means a person other than paid staff who has been selected by the individual or by the individual’s legal representative to help the individual understand and make choices in matters relating to identification of needs and choices of services, especially when rights are at risk or have been violated.

(5) “Annual ISP Meeting” means an annual meeting which is attended by the individual served, agency representatives who provide service to the individual, case manager, the guardian, if any, relatives of the individual and/or other persons, such as an advocate, as appropriate. The purpose of the meeting is to determine needs, coordinate services and training, and develop an Individual Support Plan.

(6) “Case Management” means an organized service to assist individuals to select, obtain and utilize resources and services.

(7) “Case Manager” means an employee of the community mental health program or other agency which contracts with the County or Division, who is selected to plan, procure, coordinate, and monitor individual support plan services and to act as a proponent for persons with developmental disabilities.

(8) “Choice” means the individual’s expression of preferences of activities and services through verbal, sign language or other communication method.

(9) “Community Mental Health Program” or “CMHP” means the organization of all services for individuals with mental or emotional disturbances, developmental disabilities, or chemical dependency, operated by, or contractually affiliated with, a local mental health authority, operated in a specific geographic area of the state under an intergovernmental agreement or direct contract with the Mental Health and Developmental Disability Services Division.

(10) “Crisis Services” means case management services provided in response to any event that substantially threatens the individual’s health, safety or the stability of his/her support system.

(11) “Developmental Disability (DD)” means a disability attributable to mental retardation, autism, cerebral palsy, epilepsy, or other neurological handicapping condition which requires training or support similar to that required by individuals with mental retardation, and the disability:

(a) Originates before the individual attains the age of 22 years, except that in the case of mental retardation the condition must be manifested before the age of 18; and

(b) Has continued, or can be expected to continue, indefinitely; and

(c) Constitutes a substantial handicap to the ability of the person to function in society; or

(d) Results in significant sub-average general intellectual functioning with concurrent deficits in adaptive behavior which are manifested during the developmental period. Individuals of borderline intelligence may be considered to have mental retardation if there is also serious impairment of adaptive behavior. Definitions and classifications shall be consistent with the “Manual of Terminology and Classification in Mental Retardation” by the American Association on Mental Deficiency, 1977 Revision. Mental retardation is synonymous with mental deficiency.

(12) “Developmental Disability Program Manager” means an employee of the community mental health program, or other agency which contracts with the county or Division, who is responsible for DD programs within the county.

(13) “Division” means the Mental Health and Developmental Disability Services Division.

(14) “Entry” means admission to a Division-funded service.

(15) “Exit” means either termination or transfer from one Division-funded program to another. Exit from a program does not include transfer within a service provider’s program.

(16) “Generic Services” means community resources that are provided to the citizenry at large.

(17) “Incident Report” means a written report of any injury, accident, act of physical aggression or unusual incident involving an individual.

(18) “Independence” is defined as the extent to which persons with mental retardation or developmental disabilities, with or without staff assistance, exert control and choice over their own lives.

(19) “Individual” means a person with developmental disabilities for whom services are planned and provided.

(20) “Individual Support Plan” or “ISP” means a written plan of support and training services for an individual covering a 12-month period which addresses an individual’s support needs and each service provider’s program plan.

(21) “Individual Support Plan Team” or “ISP Team” means a team composed of the individual, representatives of all current service providers, case manager, the individual’s legal guardian if any, advocate, and others determined appropriate by the individual receiving services. If the individual is unable or does not express a preference, other appropriate team membership shall be determined by the ISP team members.

(22) “Integration” means the use by persons with mental retardation or other developmental disabilities of the same community resources that are used by and available to other persons in the community and participation in the same community activities in which persons without a disability participate, together with regular contact with persons without a disability.

(23) “Legal Representative” means the parent if the individual is under age 18, unless the court appoints another individual or agency to act as guardian. For those individuals over the age of 18, a legal representative means an attorney at law who has been retained by or for the adult, or a person who is authorized by a court to make decisions about services for the individual.

(24) “Local Mental Health Authority” or “LMHA” means the county court or board of county commissioners of one or more counties who chose to operate a CMHP; or, if the county declines to operate or contract for all or part of a CMHP, the board of directors of a public or private corporation which contracts with MHDDSD to operate a CMHP for that county.

(25) “Monitoring” means the periodic review of the implementation of services identified in the ISP and the quality of services delivered by other organizations.

(26) “Office of Developmental Disability Services” or “DD Office” means the Office of Developmental Disability Services of the Mental Health and Developmental Disability Services Division.

(27) “Priority Population” means individuals possessing one or more of the following characteristics:

(a) The individual has a medical condition that is serious and could be life threatening. Examples include but are not limited to:

(A) Brittle diabetes or diabetes not controlled through medical or physical interventions;

(B) Aspiration or significant risk of choking;

(C) Physical, intellectual, or mental limitations that render the individual totally dependent on others for access to food or fluids;

(D) Mental health or alcohol or drug problems that are not responsive to treatment interventions;

(E) A terminal illness requiring hospice care; and

(F) Condition(s) permitting appointment of a health care representative authorized under OAR 309-041-1500 through 309-041-1610, Health Care Representative.

(b) The individual exhibits behavior that poses a significant danger to the individual. Examples include but are not limited to:

(A) Acts or history of acts which have caused injury to self or others requiring medical attention;

(B) Use of fire or items to threaten injury to persons or damage to property;

(C) Acts that cause significant damage to homes, vehicles, or other property;

(D) Actively searching for opportunities to act out thoughts that involve harm to others.

(c) The ISP team determines that implementation of the Individual’s Support Plan developed to address conditions such as those described in (a) or (b) above shall be monitored monthly by the case manager to assure protection of the individual’s health and safety. If monthly monitoring by the case manager is not necessary, an individual is not considered part of the priority population.

(28) “Productivity” means engagement in income-producing work by a person with mental retardation or other developmental disabilities which is measured through improvements in income level, employment status or job advancement or engagement by a person with mental retardation or other developmental disabilities in work contributing to a household or community.

(29) “Service Provider” means a public or private community agency or organization that provides a recognized mental health or developmental disability services services and is approved by the Division or other appropriate agency to provide the service.

(30) “Support” means those services that assist an individual in maintaining or increasing his or her functional independence, achieving community presence and participation, enhancing productivity, and enjoying a satisfying lifestyle. Support services can include training, i.e. the systematic, planned maintenance, development and enhancement of self-care, social or independent living skills; or the planned sequence of systematic interactions, activities, structured learning situations, or educational experiences designed to meet each individual’s specified needs in the areas of integration and independence.

(31) “Transfer” means movement of an individual from one site to another site administered by the same service provider.

(32) “Transition Plan” means a written plan for the period of time between an individual’s entry into a particular service and the time when the individual’s ISP is developed and approved by the ISP team. The plan shall include a summary of the services necessary to facilitate adjustment to the services offered, the supports necessary to ensure health and safety, and the assessments and/or consultations necessary for the ISP development.

(33) “Unusual Incident” means those incidents involving serious illness or accidents, death of an individual, injury or illness of an individual requiring inpatient or emergency hospitalization, suicide attempts, a fire requiring the services of a fire department, or any incident requiring an abuse investigation.

Stat. Auth.: ORS 430.041

Stats. Implemented: ORS 430.610 - 430.670 & 427.005 - 427.007

Hist.: MHD 9-1997, f. & cert. ef. 10-9-97; Renumbered from 309-041-1310, SPD 1-2011, f. & cert. ef. 2-1-11

411-341-1320

Community Mental Health Program Responsibilities for Individual Support Plan, Entry/Exit/Transfer Plans

(1) Individuals in Division-funded residential and/or employment services. The CMHP shall assure that all individuals in Division-funded residential and/or employment services have an annual Individual Support Plan (ISP). An Individual Support Plan shall be developed and reviewed in accordance with OAR 309-041-1330 and 309-041-1360. The case manager shall participate in the development of an Individual Support Plan for individuals who fall within the priority population. The case manager shall, to the extent resources are available and within the priorities established in 309-041-0400 through 309-041-0500, Case Management Services for Individuals with Developmental Disabilities and Their Families, participate in the development of Individual Support Plans for other individuals.

(2) Individuals not in Division-funded residential or employment services. Individuals not in Division-funded residential or employment services are not required to have an ISP. These individuals shall have an Annual Contact and Summary of Support Needs developed and reviewed in accordance with OAR 309-041-0410, Case Management Services for Individuals with Developmental Disabilities and Their Families.

(3) Entry/exit/transfer plans for individuals in Division-funded residential or employment services.

(a) Entry to program services shall be authorized in accordance with OAR 309-041-0445, Case Management Services for Individuals with Developmental Disabilities and Their Families.

(b) Exit from program services shall be in accordance with OAR 309-041-0445, Case Management Services for Individuals with Developmental Disabilities and Their Families.

(c) Transfer between program services shall be in accordance with OAR 309-041-0445, Case Management Services for Individuals with Developmental Disabilities and Their Families.

(4) Crisis services for all individuals. Crisis services shall be assessed, identified, planned, monitored and evaluated by the case manager in accordance with OAR 309-041-0300, Diversion/Crisis Services.

(5) Monitoring of individual support plans.

(a) Services identified in the ISP shall be monitored for individuals receiving Division-funded residential and/or employment services in accordance with OAR 309-041-0445, Case Management Services for Individuals with Developmental Disabilities and Their Families.

(b) The case manager shall monitor the ISP for individuals who fall within the priority population. The case manager shall, to the extent resources are available and within the priorities established in the Case Management Rule, monitor the ISP for other individuals.

Stat. Auth.: ORS 430.041

Stats. Implemented: ORS 430.610 - 430.670 & 427.005 - 427.007

Hist.: MHD 9-1997, f. & cert. ef. 10-9-97; Renumbered from 309-041-1320, SPD 1-2011, f. & cert. ef. 2-1-11

411-341-1330

Standards for the Development of the Individual Support Plan (ISP)

(1) Priority population determination. The ISP team shall make an initial determination whether or not an individual falls within the priority population using the definition in OAR 309-041-0130 and notify the case manager. The case manager shall confirm that the individual falls within the priority population.

(2) ISP team membership. The ISP shall be developed through a team approach and the membership of the team may vary, depending on the unique needs of the individual and the services being provided. Each member shall have equal participation in discussion and decision making. No one member shall have the authority to make decisions for the team. Representatives from service provider(s), families, the CMHP, or advocacy agencies shall be considered as one member for the purpose of reaching majority agreement.

(a) The ISP team shall at a minimum, include the individual, individual’s legal guardian, and service provider representatives. The case manager shall be part of the ISP team for individuals who fall within the priority population. The case manager may participate in the ISP meeting for other individuals to the extent case management resources are available and within the priorities set forth for case management services in OAR 309-041-0410, Case Management Services for Individuals with Developmental Disabilities and Their Families.

(b) The individual may suggest additional participants. Typically, family members, advocates or other professionals involved in providing service to the individual are appropriate ISP team members.

(c) The individual may raise objection to participation by a particular person. When an individual raises objections to participation by a particular individual, the team shall attempt to accommodate the individual’s objection while allowing participation by team members.

(3) Initial and annual ISP timelines.

(a) An ISP shall be completed within 60 calendar days following entry into Division-funded residential or employment services and at least annually thereafter. All ISPs shall be sent to the CMHP for placement in the individual’s file. If the individual has not been identified as a member of the priority population and a case manager believes otherwise, the case manager may reconvene the ISP team. If the case manager does not believe the ISP meets the requirements specified in these rules, the case manager may reconvene the ISP team.

(b) When a service provider’s individual planning process (including the outcome system) requires more than annual team meetings, a copy of the plan shall be sent to the CMHP within 30 days of completion for placement in the individual’s file. The case manager shall review the plan and provide any comments to the ISP team.

(4) Changes in the ISP. If significant needs or changes or crisis situations arise between scheduled ISP meetings, such as the necessity to develop a new behavior intervention program, reports indicating changes in the health status or functioning level, new evaluations containing substantial recommendations or changes, the report of an unusual incident or any other significant situation which may require prompt action, the case manager or ISP team leader shall be contacted to facilitate a discussion between the ISP team members regarding the ISP changes proposed and assess the need to reconvene as a team. Any ISP team member may contact the case manager regarding changes in the ISP. The case manager or facilitator shall document the team discussion and any subsequent recommendations and distribute to these team members.

Stat. Auth.: ORS 430.041

Stats. Implemented: ORS 430.610 - 430.670 & 427.005 - 427.007

Hist.: MHD 9-1997, f. & cert. ef. 10-9-97; Renumbered from 309-041-1330, SPD 1-2011, f. & cert. ef. 2-1-11

411-341-1340

ISP Meeting Process

(1) ISP Meetings. The case manager shall initiate the ISP meeting for individuals who fall within the priority population. For other individuals, when the case manager is not present, the ISP team shall select a team leader for the meeting. The team leader shall be responsible for assuring that the ISP meeting is scheduled and participants notified.

(2) Case manager or team leader role in the development of the ISP. At the ISP meeting, the case manager or designated team leader shall:

(a) Initiate the discussion of the individual, individual’s legal representative’s, family’s, or other team member’s preferences;

(b) Initiate a discussion that the individual and/or legal representative have the right to request that information not be shared across service providers unless the preference is likely to create the situation detrimental to the individual’s health and safety as determined by the ISP team.

(c) Initiate discussion of and document the need for evaluations in the areas of medical, dental, vision, hearing; and any other evaluations based on the specialized needs of the individual (such as, but not limited to, neurological evaluations for individuals with seizure disorders, augmentative communication evaluations for individuals with limited speech, physical therapy and equipment evaluations for individuals in wheelchairs, psychiatric or psychological evaluations for individuals who are dually-diagnosed or nutritional evaluations for individuals with metabolic disorders);

(d) Initiate and document discussion of specialized health care needs and health maintenance services (such as, but not limited to, required periodic lab work), including what services are needed and the individual or provider who is responsible for assuring that they are provided;

(e) Determine with the ISP team whether home visits, vacations and other community or family-based activities are considered to be community-based experiences preferred by the individual. If so, then these activities must be considered part of the individual’s overall ISP and shall be documented as such through the ISP process;

(f) Initiate the review of and discussion regarding outcome of any previous plan;

(g) Initiate discussion of proposed service provider plans and assist the team to make any needed modifications emphasizing health, safety, and rights;

(h) Determine the extent to which the ISP reflects the individual’s choice and preferences in his/her daily activities which are defined in the ISP;

(i) Make efforts to build consensus among the members regarding services and supports included in the ISP, giving the most weight to the preference of the individual receiving services, unless the individual’s preference is likely to create a situation detrimental to his/her health and safety as determined by the ISP team;

(j) ISP team decisions shall be made by majority agreement.

(3) ISP document. The ISP document shall include:

(a) Each service provider’s program plan, with team modifications;

(b) Documentation of the need for additional evaluations or other services to be obtained and the person or provider responsible for assuring that these evaluations or services are obtained;

(c) Documentation of the specialized health care needs, health maintenance services and the person or provider responsible for assuring that these services are provided;

(d) Documentation of the individual’s safety skills including the level of support necessary for the individual to evacuate a building (when warned by a signal device), the individual’s ability to adjust water temperature, and the amount of time an individual can be without supervision before the missing notification protocol is implemented;

(e) Documentation of the reason(s) any preferences of the individual, legal representative and/or family members cannot be honored; and

(f) Documentation of the role and responsibilities of each participant in implementing the ISP plan, with specific ISP team member concerns, if any, noted.

(4) Distribution of the ISP document. The case manager or the team leader shall assure the distribution of a copy of the Individual Support Plan to all ISP team members within 30 calendar days of the ISP team meeting.

Stat. Auth.: ORS 430.041

Stats. Implemented: ORS 430.610 - 430.670 & 427.005 - 427.007

Hist.: MHD 9-1997, f. & cert. ef. 10-9-97; Renumbered from 309-041-1340, SPD 1-2011, f. & cert. ef. 2-1-11

411-341-1350

ISP Team Responsibilities for Entry/Exit/Transfer

(1) Entry staffing. Prior to an individual’s date of entry into a Division-funded program, the ISP team shall meet to review referral material in order to determine appropriateness of placement. For purposes for entry staffings, a case manager must attend the staffing and authorize the placement. The team shall determine date of entry and develop a transition plan. The transition plan shall include:

(a) The name of the individual considered for entry;

(b) The date of the meeting;

(c) Documentation of the participants included in the meeting;

(d) Documentation of the circumstances leading to the proposed entry;

(e) Documentation of the alternatives considered instead of entry;

(f) Documentation of the reason(s) any preferences of the individual, the individual’s legal representative, family or other team member cannot be honored;

(g) Documentation of majority agreement of the participants in the meeting with the decision;

(h) The written plan for services to the individual;

(i) Documentation of decisions regarding the proposed placement; and

(j) Findings of the ISP team and the signatures of all participants.

(2) Crisis services. For a period not to exceed 30 days, subsection (3)(b) of OAR 309-041-0445 does not apply if an individual is temporarily admitted to a program for crisis services.

(3) Exit from Division-funded programs. All exits from Division-funded programs shall be authorized by the CMHP. Prior to an individual’s exit date, the ISP team shall meet to review the appropriateness of the move and to coordinate any services necessary during or following the transition. For purposes for exit staffings, a case manager must attend the staffing and authorize the exit.

(4) Exit staffing. Findings of the exit meeting shall be distributed to all ISP team members. The exit plan shall include:

(a) The name of the individual considered for exit;

(b) The date of the meeting;

(c) Documentation of the participants included in the meeting;

(d) Documentation of the circumstances leading to the proposed exit;

(e) Documentation of the alternatives considered instead of exit;

(f) Documentation of the reason(s) any preferences of the individual, the individual’s legal representative, family or other team member cannot be honored;

(g) Documentation of majority agreement of the participants in the meeting with the decision; and

(h) The written plan for services to the individual.

(5) Transfer meeting. All transfers must be authorized by the CMHP. Transfer of an individual shall be preceded by a meeting of the ISP team before any decision to transfer is made. This meeting may occur by phone with all ISP team participants to expedite the transfer if so warranted. Findings of such a meeting shall be recorded in the individual’s file and include, at a minimum:

(a) The name of the individual considered for transfer;

(b) The date of the meeting;

(c) Documentation of the participants included in the meeting;

(d) Documentation of the circumstances leading to the proposed transfer;

(e) Documentation of the alternatives considered instead of transfer;

(f) Documentation of the reason(s) any preferences of the individual, individual’s legal representative and/or family members cannot be honored;

(g) Documentation of majority agreement of the participants with the decision; and

(h) The written plan for services to the individual after transfer.

Stat. Auth.: ORS 430.041

Stats. Implemented: ORS 430.610 - 430.670 & 427.005 - 427.007

Hist.: MHD 9-1997, f. & cert. ef. 10-9-97; Renumbered from 309-041-1350, SPD 1-2011, f. & cert. ef. 2-1-11

411-341-1360

Standards for Monitoring Individual Support Plans for Individuals

(1) Case manager responsibility for monitoring services for individuals. The case manager shall determine whether services are being provided in accordance with the ISP; that personal, civil, and legal rights of the individual are protected in accordance with this rule; that the satisfaction and desires of the individual, the individual’s legal representative or family are addressed; that the services provided continue to meet the needs of the individual; and that the services result in the individual’s achievement of goals and objectives identified in the ISP. The case manager shall monitor the ISP for individuals who fall within the priority population. The case manager shall, to the extent resources are available, monitor the ISP of other individuals.

(2) Frequency of monitoring. The frequency of the monitoring will be determined by the needs of the individual. However, the case manager shall meet at least monthly, in addition to the annual ISP meeting, with an individual who falls within the priority population. Arrangements shall be made to meet with the individual in a mutually acceptable location. Communication for the purpose of monitoring may also be done with provider(s) and family members. Should an individual refuse, after being duly informed as to the purpose and nature of the visit, to have the case manager visit, then such a refusal shall be documented in the individual’s case record.

(3) Purpose of monitoring. The purpose of the visit is to assure that supports are being provided as defined in the ISP. Monitoring shall include:

(a) Review and documentation of the individual’s outcome data, if applicable.

(b) Review of any incident and unusual incident reports.

(c) Review of the process by which an individual accesses and utilizes funds according to standards specified in OAR 309-049-0175.

(d) Review of the ISP document to determine if the goals and objectives or actions to be taken by the case manager or others have been implemented:

(A) Address the individual’s participation in activities that will increase integration, independence, and/or productivity;

(B) Address the anticipated outcomes which reflect the preferences and needs of the individual to the extent possible, while at the same time reflect similar interests and activities of persons without disabilities of a similar age; and

(C) Define the behavior, conditions and criterion for achieving the objectives and are consistent with the residential or employment outcome system as set forth in the Interagency Agreement between the Division and the CMHP.

(4) Monitoring follow-up. If the case manager determines that services are not being delivered as agreed, or that an individual’s service needs have changed since the last review, the CMHP shall determine the need for technical assistance and/or referral to the DD program manager for consultation or corrective action.

Stat. Auth.: ORS 430.041

Stats. Implemented: ORS 430.610 - 430.670 & 427.005 - 427.007

Hist.: MHD 9-1997, f. & cert. ef. 10-9-97; Renumbered from 309-041-1360, SPD 1-2011, f. & cert. ef. 2-1-11

411-341-1370

Grievance Procedures

(1) Grievances.

(a) Mediation of grievances. Individuals, their legal representatives, family members or advocates may file a grievance concerning a determination regarding the appropriateness of services proposed or provided as set forth in these rules.

(b) Grievances shall be submitted in writing to the CMHP. The CMHP upon request shall assist individuals requiring assistance in preparing a written grievance.

(c) Informal procedures. Grievances concerning the appropriateness of services should, if possible, be resolved through the use of informal procedures. However, the grievant may elect not to utilize informal procedures, and to proceed directly to the county formal mediation committee.

(A) Informal procedures may include one or more of the following:

(i) Meeting with the individual, legal representative, family member(s) and/or advocates;

(ii) Meeting with the CMPH administrative staff;

(iii) Meeting with the ISP team;

(iv) Meeting with program administrative staff; and

(v) Meeting with local agency(ies); and

(vi) Voluntary mediation with a neutral mediator mutually agreed upon by the parties.

(B) Informal procedures shall result in a decision on the grievance no later than 30 days from the date the grievance is filed.

(C) The 30 day period for informal resolution of grievances may be extended by mutual agreement of the grievant and the CMHP to extend the informal process. Such agreement shall be in writing and must extend the process for a specified duration. A copy of the agreement to extend the time for informal resolution shall be sent to the CMHP and the Division within five working days of its signing by the parties involved.

(D) The grievant shall receive written notice of the grievance decision or outcome. The CMHP shall send a copy of this notice to the Division within five working days of issuance of notice to the grievant.

(d) CMHP formal mediation. When informal procedures cannot resolve the dispute, the interested party(ies) may submit to the CMHP a written request for a formal mediation of the disagreement using the CMHP’s mediation procedures. The CMHP Director or designee shall make a decision within 30 working days of receipt of the request and notify the appellant of the decision in writing.

(e) Division review process. If the CMHP formal mediation decision is not acceptable to all the parties, decisions can be reviewed using the following formal procedure:

(A) The party requesting review shall submit in writing a request for a formal review to the Mental Health and Developmental Disability Services Division within five working days of receipt of the CMHP’s decision:

(i) A grievance review committee shall be appointed by the Administrator of the Division or designee, in the Office of Developmental Disability Services of the Division, every two years, and shall be composed of Division representative, a local service provider program representative, a case management representative, and a representative of the Division’s Office of Client Rights;

(ii) In case of a conflict of interest, as determined by the Administrator or designee, alternative representatives will temporarily be appointed to the committee by the Administrator or designee.

(B) Upon receipt of the request for formal review, the Division shall:

(i) Schedule a grievance committee review meeting within 30 days of written request by the requesting party for a formal review of the decision; and

(ii) Notify in writing, each party involved in the disagreement of the date, time, and location of the committee review meeting, allowing at least 15 days from the meeting notification to the scheduled meeting time; and

(iii) Record the review committee meeting.

(C) Individual rights. The grievance review committee shall afford individuals the following rights:

(i) The opportunity to review documents and other evidence relied upon in reaching the decision being appealed; and

(ii) The opportunity to be heard in person and to be represented; and

(iii) The opportunity to present witnesses or documents to support their position and to question witnesses presented by other parties.

(D) Within 15 days after the conclusion of the meeting, the grievance review committee shall provide written recommendations to the Administrator or designee. The Administrator or designee shall make a decision and send written notification of the recommendations and implementation process to all grievance review committee meeting participants within 15 days of receipt of the recommendations.

(E) The decision of the Administrator or designee shall be final.

(2) Appeals.

(a) Appeals of entry, exit or transfer decisions within residential services may only be initiated according to the “24-Hour Residential Services” (OAR 309-049-0030), and the “Supported Living Services” (309-041-0550) and “Semi-Independent Living Services” (309-041-0015) rules;

(b) Appeals of entry, exit or transfer decisions within employment services may only be initiated according to the “Employment and Alternatives to Employment Services” (OAR 309-047-0000) rule.

Stat. Auth.: ORS 430.041

Stats. Implemented: ORS 430.610 - 430.670 & 427.005 - 427.007

Hist.: MHD 9-1997, f. & cert. ef. 10-9-97; Renumbered from 309-041-1370, SPD 1-2011, f. & cert. ef. 2-1-11

 

Rule Caption: Residential Programs.

Adm. Order No.: SPD 2-2011

Filed with Sec. of State: 2-1-2011

Certified to be Effective: 2-1-11

Notice Publication Date:

Rules Renumbered: 309-049-0000 to 411-349-0000, 309-049-0005 to 411-349-0005, 309-049-0010 to 411-349-0010, 309-049-0015 to 411-349-0015, 309-049-0020 to 411-349-0020

Subject: The Department of Human Services, Seniors and People with Disabilities Division is renumbering the residential program rules in OAR chapter 309, division 049 to OAR chapter 411, division 349.

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

411-349-0000

Purpose and Statutory Authority

(1) Purpose. These rules require providers of residential services to persons under 21 years of age with developmental disabilities to notify the public school system prior to establishing, expanding, or changing the program.

(2) Statutory Authority. These rules are authorized by ORS 430.041 and carry out the provisions of ORS 339.175.

Stat. Auth.: ORS 339, 430

Stats. Implemented:

Hist.: MHD 1-1987, f. & ef. 1-12-87; Renumbered from 309-049-0000, SPD 2-2011, f. & cert. ef. 2-1-11

411-349-0005

Definitions

(1) “Developmental Disability (DD)” means a person with a disability which is attributed to mental retardation, cerebral palsy, epilepsy or other neurological handicapping condition which requires training similar to that required by persons with mental retardation. Characteristics of the developmental disability are that it:

(a) Originates before the person attains the age of 22 years, except that in case of mental retardation the condition must be manifested before the age of 18;

(b) Has continued, or can be expected to continue indefinitely;

(c) Constitutes a substantial handicap to the person’s ability to function in society; and

(d) In the case of mental retardation, means a person with significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period. Persons of borderline intelligence may be considered to have mental retardation if there is also serious impairment of adaptive behavior. Definitions and classifications shall be consistent with the “Manual on Terminology and Classification in Mental Retardation” of the American Association on Mental Deficiency, 1977 Revision. Mental retardation is synonymous with mental deficiency. For community case management purposes, mental retardation includes those persons of borderline intelligence who have a history of residence in a state training center:

(A) “Adaptive Behavior” means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected for age and cultural group;

(B) “Developmental Period” means the period of time between birth and the 18th birthday;

(C) “Intellectual Functioning” means functioning as assessed by one or more of the individually administered general intelligence tests developed for that purpose;

(D) “Significantly Subaverage” means a score on a test of intellectual functioning that is two or more standard deviations below the mean for the test.

(2) “Disability Characteristics” means handicapping conditions such as mental retardation, seizures, motor dysfunction, cerebral palsy, behavior problems, communication disorders, visual and auditory dysfunction and other health impairments.

(3) “DD Residential Program” means DD residential homes and DD small residential homes serving residents with developmental disabilities who are under the age of 21. This rule does not apply to DD foster homes.

(4) “Resident” means a person served by and residing in a DD residential program.

(5) “Superintendent” means the highest ranking administrative officer in a school district or an educational institution, or in the absence of the superintendent, the person designated to fulfill the functions.

Stat. Auth.: ORS 339 & ORS 430

Stats. Implemented:

Hist.: MHD 1-1987, f. & ef. 1-12-87; Renumbered from 309-049-0005, SPD 2-2011, f. & cert. ef. 2-1-11

411-349-0010

Notice and Consultation With School Districts

The Administrator or Board of Directors of any DD residential program intending to establish or expand services to persons under the age of 21, or intending to change the category of residents being served, shall provide written notification to the superintendent of any affected local school district. To assist local school districts in planning special education services for additional or different students with developmental disabilities, the written notification shall include information about the characteristics and needs of residents including but not limited to:

(1) Age ranges;

(2) Abilities to ambulate; and

(3) Expectations of residents’ disability characteristics.

Stat. Auth.: ORS 339, 430

Stats. Implemented:

Hist.: MHD 1-1987, f. & ef. 1-12-87; Renumbered from 309-049-0010, SPD 2-2011, f. & cert. ef. 2-1-11

411-349-0015

Three-Month Notification Requirement

(1) The written notification required by this rule shall occur not less than three months prior to events described in OAR 309-049-0010.

(2) The three-month period, or any part of it, may be waived by agreement of the DD residential program and the affected school district.

(3) Copies of the written notification shall be forwarded to the Director of the Community Mental Health Program, the Associate Superintendent of Special Education at the Oregon Department of Education, and to the Assistant Administrator of the Oregon Mental Health and Developmental Disability Services Division for DD Programs.

Stat. Auth.: ORS 339, 430

Stats. Implemented:

Hist.: MHD 1-1987, f. & ef. 1-12-87; Renumbered from 309-049-0015, SPD 2-2011, f. & cert. ef. 2-1-11

411-349-0020

Exclusion

This rule does not apply to changes in, or expansion of, DD residential programs for less than 30 days duration.

Stat. Auth.: ORS 339, 430

Stats. Implemented:

Hist.: MHD 1-1987, f. & ef. 1-12-87; Renumbered from 309-049-0020, SPD 2-2011, f. & cert. ef. 2-1-11

 

Rule Caption: Long Term Care Tax.

Adm. Order No.: SPD 3-2011

Filed with Sec. of State: 2-1-2011

Certified to be Effective: 2-1-11

Notice Publication Date:

Rules Renumbered: 410-050-0401 to 411-069-0000, 410-050-0411 to 411-069-0010, 410-050-0421 to 411-069-0020, 410-050-0431 to 411-069-0030, 410-050-0451 to 411-069-0040, 410-050-0461 to 411-069-0050, 410-050-0471 to 411-069-0060, 410-050-0481 to 411-069-0070, 410-050-0491 to 411-069-0080, 410-050-0501 to 411-069-0090, 410-050-0511 to 411-069-0100, 410-050-0521 to 411-069-0110, 410-050-0531 to 411-069-0120, 410-050-0541 to 411-069-0130, 410-050-0551 to 411-069-0140, 410-050-0561 to 411-069-0150, 410-050-0591 to 411-069-0160, 410-050-0601 to 411-069-0170

Subject: The Department of Human Services, Seniors and People with Disabilities Division is renumbering the long term care tax rules to move them from OAR chapter 410, division 050 to OAR chapter 411, division 069.

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

411-069-0000

Definitions

The following definitions apply to OAR 410-050-0401 through 410-050-0601:

(1) “Assessment Rate” means the rate established by the Director of the Department of Human Services.

(2) “Assessment Year” means a 12-month period, beginning July 1 and ending the following June 30, for which the assessment rate being determined is to apply.

(3) “Deficiency” means the amount by which the tax as correctly computed exceeds the tax, if any, reported by the facility. If, after the original deficiency has been assessed, subsequent information shows the correct amount of tax to be greater than previously determined, an additional deficiency arises.

(4) “Delinquency” means the facility failed to pay the tax as correctly computed when the tax was due.

(5) “Department” means the Department of Human Services.

(6) “Director” means the Director of the Department of Human Services.

(7) “Gross Revenue” means the revenue paid to a long term care facility for patient care, room, board, and services, less contractual adjustments. It does not include:

(a) Revenue derived from sources other than long term care facility operations, including but not limited to donations, interest, guest meals, or any other revenue not attributable to patient care; and

(b) Hospital revenue derived from hospital operations.

(8) “Long Term Care Facility” means a facility with permanent facilities that includes inpatient beds and provides medical services, including nursing services but excluding surgical procedures except as may be permitted by the rules of the Director. A long term care facility provides treatment for two or more unrelated patients and includes licensed skilled nursing facilities and licensed intermediate care facilities, but does not include facilities licensed and operated pursuant to ORS 443.400 to 443.455. A long term care facility does not include any intermediate care facility for the mentally retarded.

(9) “Medicaid Patient Days” means patient days attributable to patients who receive medical assistance under a plan described in 42 U.S.C. 1396a et seq.

(10) “Patient Days” means the total number of patients occupying beds in a long term care facility for all days in the calendar period for which an assessment is being reported and paid. For purposes of this subsection, if a long term care facility patient is admitted and discharged on the same day, the patient shall be deemed to occupy a bed for one day.

(11) “Waivered Long Term Care Facility” means:

(a) A long term care facility operated by a Continuing Care Retirement Community (CCRC) that is registered under ORS 101.030 and that admits:

(A) Residents of the CCRC; or

(B) Residents of the CCRC and nonresidents; or

(b) A long term care facility that is annually identified by the Department as having a Medicaid recipient census that exceeds the census level established by the Department for the year for which the facility is identified.

Stat. Auth.: ORS 409.050, 410.070, 411.060

Stats. Implemented: ORS 409.750, OL 2003 736 §15

Hist.: OMAP 3-2005, f. & cert. ef. 2-1-05; DMAP 2-2008, f. & cert. ef. 1-25-08; Renumbered from 410-050-0401, SDP 3-2011, f. & cert. ef. 2-1-11

411-069-0010

General Administration

(1) The purpose of these rules is to implement the long term care facility tax imposed on long term care facilities in Oregon.

(2) The Department will administer, enforce, and collect the long term care facility tax.

(3) The Department may assign employees, auditors, and other agents as designated by the Director to assist in the administration, enforcement, and collection of the taxes.

(4) The Department may establish rules and regulations, not inconsistent with legislative enactments, that it considers necessary to administer, enforce, and collect the taxes.

(5) The Department may prescribe forms and reporting requirements and change the forms and reporting requirements, as necessary, to administer, enforce, and collect the taxes.

Stat. Auth.: ORS 409.050, 410.070, 411.0601

Stats. Implemented: ORS 409.750, OL 2003 & ORS 736 §§ 15-31

Hist.: OMAP 3-2005, f. & cert. ef. 2-1-05; DMAP 2-2008, f. & cert. ef. 1-25-08; Renumbered from 410-050-0411, SDP 3-2011, f. & cert. ef. 2-1-11

411-069-0020

Disclosure of Information

(1) Except as otherwise provided by law, the Department must not publicly divulge or disclose the amount of income, expense, or other particulars set forth or disclosed in any report or return required in the administration of the taxes. Particulars include but are not limited to social security numbers, employer numbers, or other facility identification numbers, and any business records required to be submitted to or inspected by the Department or its designee to allow it to determine the amounts of any assessments, delinquencies, deficiencies, penalties, or interest payable or paid, or otherwise administer, enforce, or collect a health care assessment to the extent that such information would be exempt from disclosure under ORS 192.501(5).

(2) The Department may:

(a) Furnish any facility, or its authorized representative, upon request of the facility or representative, with a copy of the facility’s report filed with the Department for any quarter, or with a copy of any report filed by the facility in connection with the report, or with a copy with any other information the Department considers necessary;

(b) Publish information or statistics so classified as to prevent the identification of income or any particulars contained in any report or return; and

(c) Disclose and give access to an officer or employee of the Department or its designee, or to the authorized representatives of the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), the Controller General of the United States, the Oregon Secretary of State, the Oregon Department of Justice, the Oregon Department of Justice Medicaid Fraud Control Unit, and other employees of the state or federal government to the extent the Department deems disclosure or access necessary or appropriate for the performance of official duties in the Department’s administration, enforcement, or collection of these taxes.

Stat. Auth.: ORS 409.050, 410.070, 411.0601

Stats. Implemented: ORS 409.225, 409.230, 410.140, 410.150, 411.300, 411.320

Hist.: OMAP 3-2005, f. & cert. ef. 2-1-05; DMAP 2-2008, f. & cert. ef. 1-25-08; Renumbered from 410-050-0421, SDP 3-2011, f. & cert. ef. 2-1-11

411-069-0030

Entities Subject to the Long Term Care Facility Tax

(1) Each long term care facility in Oregon is subject to the long term care facility tax except the Oregon Veterans’ Home and long term care facilities that have received written notice from the Department that they are exempt under the terms of a waiver. For these facilities, the exemption from the long term care facility tax only applies for the specific period of time described in the notice from the Department.

(2) The Director will determine on or before April 1 of each year those long term care facilities that meet the criteria of a waivered long term care facility as defined by OAR 410-050-0401 that are exempt from the long term care facility tax for the assessment year commencing July 1 of that year.

(3) A long term care facility that believes it meets the criteria of a waivered long term care facility that has not received notice of exempt status or disagrees with the Department’s decision, may request an administrative review from the Department.

(a) A request for an administrative review must be sent to: Administrator DHS Finance and Policy Analysis 500 Summer Street NE Salem, OR 97301

(b) A request for administrative review must be received by the Department by April 15 prior to the assessment year.

Stat. Auth.: ORS 409.050, 410.070, 411.060

Stats. Implemented: ORS 409.750, OL 2003 & ORS 736 sec.18, sec.33

Hist.: OMAP 3-2005, f. & cert. ef. 2-1-05; OMAP 31-2006(Temp), f.& cert. ef. 8-7-06 thru 2-2-07; Administrative correction, 2-16-07; DMAP 2-2008, f. & cert. ef. 1-25-08; Renumbered from 410-050-0431, SDP 3-2011, f. & cert. ef. 2-1-11

411-069-0040

The Long Term Care Facility Tax: Calculation, Report, Due Date

(1) The tax is assessed upon each patient day, including Medicaid patient day, at a long term care facility. The amount of the tax equals the assessment rate times the number of patient days, including Medicaid patient days, at the long term care facility for the calendar quarter. The current rate of the assessment will be determined in accordance with these rules.

(2) The facility must pay the tax and file the report on a form approved by the Department on or before the last day of the month following the end of the calendar quarter for which the tax is being reported, unless the Department permits a later payment date. If a facility requests an extension, the Department, in its sole discretion, will determine whether to grant an extension.

(3) Each long term care facility must submit a revenue report on a form prescribed by the Department by September 30 of each year and pay any tax amount due. Long term care facilities with a Medicaid contract with the Department that provide more than 1,000 Medicaid patient days must submit the nursing facility financial statement (cost report) annually as required by OAR 411-070-0300 which contains the revenue report. Long term care facilities that are not required to submit the annual cost report must submit the revenue report. Either a revenue report or a nursing facility financial statement, where applicable, must be filed by September 30 of each year regardless of whether any additional tax is owed as a result of that filing.

(4) A one-month extension may be obtained for the nursing facility financial statement as set forth in OAR 411-070-0300. A one-month extension may be obtained for the revenue report if a written request to the Department for an extension is postmarked prior to September 30. The Department will respond in writing to these requests.

(5) Revenue reports submitted late are subject to penalty as set forth in OAR 410-050-0491. Nursing facility financial statements submitted late are subject to a penalty as set forth in OAR 411-070-0300(2)(c), where applicable.

(6) Any tax amount due based on the cost report or revenue report as a reconciliation of the previously filed quarterly reports must be paid by the due date specified. Payments submitted late are subject to penalty as set forth in OAR 410-050-0491.

(7) Any refund due to the provider based on the cost report or revenue report can be requested in writing with the submission of the report.

(8) Any report, statement, or other document required to be filed under any provision of these rules shall be certified by the chief financial officer of the facility or an individual with delegated authority to sign for the facility’s chief financial officer. The certification must attest, based on best knowledge, information, and belief, to the accuracy, completeness, and truthfulness of the document.

(9) Payments may be made electronically and the accompanying report may either be faxed to the Department at the fax number provided on the report form or mailed to the Department at the address provided on the report form.

(10) The Department may charge the facility a fee of $100 if, for any reason, the check, draft, order, or electronic funds transfer request is dishonored. This charge is in addition to any penalty for nonpayment of the taxes that may also be due.

Stat. Auth.: ORS 409.050, 410.070, 411.060

Stats. Implemented: ORS 409.750, OL 2003 & ORS 736 §16

Hist.: OMAP 3-2005, f. & cert. ef. 2-1-05; DMAP 2-2008, f. & cert. ef. 1-25-08; Renumbered from 410-050-0451, SDP 3-2011, f. & cert. ef. 2-1-11

411-069-0050

Filing an Amended Report

(1) Claims for refunds or payments for additional tax must be submitted by the facility on a form approved by the Department. The facility must provide all information required on the report. The Department may audit the facility, request additional information, or request an informal conference prior to granting a refund or as part of its review of a payment of a deficiency.

(2) Claim for refund.

(a) If the amount of the tax due is less than the amount paid by the facility and the facility does not then owe a tax for any other calendar period, the overpayment may be refunded by the Department to the facility. The facility can request a refund by amending their quarterly report and submitting a written request for refund to the Department, or the facility can request a refund when filing their nursing facility financial report or revenue report.

(b) If there is an amount due from the facility for any past due taxes or penalties, the refund otherwise allowable will be applied to the unpaid taxes and penalties and the facility so notified.

(3) Payment of deficiency.

(a) If the amount of the tax is more than the amount paid by the facility, the facility may file a corrected report on a form approved by the Department and pay the deficiency at any time. The penalty under OAR 410-050-0491 will stop accruing after the Department receives payment of the total deficiency for the calendar quarter; and

(b) If there is an error in the determination of the tax due, the facility may describe the circumstances of the late additional payment with the late filing of the amended report. The Department, at its sole discretion, may determine that a late additional payment does not constitute a failure to file a report or pay an assessment giving rise to the imposition of a penalty. In making this determination, the Department will consider the circumstances, including but not limited to: nature and extent of error, facility explanation of the error, evidence of prior errors, and evidence of prior penalties (including evidence of informal dispositions or settlement agreements). This provision only applies if the facility has filed a timely original return and paid the assessment identified in the return.

(4) If the Department discovers or identifies information in the administration of these tax rules that it determines could give rise to the issuance of a notice of proposed action or the issuance of a refund, the Department will issue notification pursuant to OAR 410-050-0511.

Stat. Auth.: ORS 409.050, 410.070, 411.060

Stats. Implemented: ORS 409.750, OL 2003 736 §16

Hist.: OMAP 3-2005, f. & cert. ef. 2-1-05; DMAP 2-2008, f. & cert. ef. 1-25-08; Renumbered from 410-050-0461, SDP 3-2011, f. & cert. ef. 2-1-11

411-069-0060

Determining the Date Filed

For the purpose of these rules, any reports, requests, appeals, payments, or other response by the facility must be either received by the Department before the close of business on the date due, or if mailed, postmarked before midnight of the due date. When the due date falls on a Saturday, Sunday, or legal holiday, the return is due on the next business day following the Saturday, Sunday, or legal holiday.

Stat. Auth.: ORS 409.050, 410.070, 411.060

Stats. Implemented: ORS 409.750, OL 2003 736 §§ 16

Hist.: OMAP 3-2005, f. & cert. ef. 2-1-05; DMAP 2-2008, f. & cert. ef. 1-25-08; Renumbered from 410-050-0471, SDP 3-2011, f. & cert. ef. 2-1-11

411-069-0070

Assessing Tax on Failure to File

In the case of a failure by the facility to file a report or to maintain necessary and adequate records, the Department will determine the tax liability of the facility according to the best of its information and belief. Best of its information and belief means the Department will use evidence on which a reasonable person would rely in determining the tax, including but not limited to estimating the days of patient days based upon the number of licensed beds in the facility. The Department’s determination of tax liability will be the basis for the assessment due in a notice of proposed action.

Stat. Auth.: ORS 409.050, 410.070, 411.060

Stats. Implemented: ORS 409.750, OL 2003 736 §§ 16

Hist.: OMAP 3-2005, f. & cert. ef. 2-1-05; DMAP 2-2008, f. & cert. ef. 1-25-08; Renumbered from 410-050-0481, SDP 3-2011, f. & cert. ef. 2-1-11

411-069-0080

Consequence of Failure to File a Report or Failure to Pay Tax When Due

(1) A long term care facility that fails to file a quarterly report or pay a quarterly tax when due under OAR 410-050-0451 is subject to a penalty of $500 per day of delinquency. The penalty accrues from the date of deficiency, notwithstanding the date of any notice under these rules.

(2) A long term care facility that is exempt from paying provider taxes is not required to file a quarterly report, but is required to file an annual cost or revenue report. Even if exempt, a long term care facility that fails to file annual cost or revenue reports when due under OAR 410-050-0451 is subject to a penalty of up to $500 per day of delinquency. The penalty accrues from the date of delinquency, notwithstanding the date of any notice under these rules.

(3) A long term care facility that fails to file an annual cost report or revenue report when due under OAR 410-050-0451 is subject to a penalty of up to $500 per day of delinquency. The penalty accrues from the date of delinquency, notwithstanding the date of any notice under these rules.

(4) A long term care facility that files a cost report or annual revenue report, but fails to pay a fiscal year reconciliation tax payment when due under OAR 410-050-0451 is subject to a penalty of up to $500 per day of delinquency up to a maximum of five percent of the amount due. The penalty accrues from the date of delinquency, notwithstanding the date of any notice under these rules.

(5) The total amount of penalty imposed under this section for each reporting period may not exceed five percent of the assessment for the reporting period for which the penalty is being imposed.

(6) Penalties imposed under this section will be collected by the Department and deposited in the Department’s account established under ORS 409.060.

(7) Penalties paid under this section are in addition to the long term care facility tax.

(8) If the Department determines that a facility is subject to a penalty under this section, it will issue a notice of proposed action as described in OAR 410-050-0511.

(9) If a facility requests a contested case hearing pursuant to OAR 410-050-0531, the Director, at the Director’s sole discretion, may waive or reduce the amount of penalty assessed.

(10) If a facility fails to report or pay the provider tax after the Department issues a final order described in OAR 410-050-0541, then the Department will pursue remedies described in 410-050-0551 that may include a final order leading to collection activities; nursing facility license denial, suspension, or revocation; admission restrictions; and terminating provider contracts.

Stat. Auth.: ORS 409.050, 410.070 & 411.060

Stats. Implemented: ORS 409.750 & OL 2003 Ch. 736 Sec. 19

Hist.: OMAP 3-2005, f. & cert. ef. 2-1-05; DMAP 2-2008, f. & cert. ef. 1-25-08; DMAP 29-2008, f. 8-29-08, cert. ef. 9-1-08; Renumbered from 410-050-0491, SDP 3-2011, f. & cert. ef. 2-1-11

411-069-0090

Departmental Authority to Audit Records

(1) The facility must maintain clinical and financial records sufficient to determine the actual number of patient days for any calendar period for which a tax may be due.

(2) The Department or its designee may audit the facility’s records at any time for a period of three years following the date the tax is due to verify or determine the number of patient days at the facility.

(3) The Department may issue a notice of proposed action or issue a refund based upon its findings during the audit.

(4) Any audit, finding, or position may be reopened if there is evidence of fraud, malfeasance, concealment, misrepresentation of material fact, omission of income, or collusion either by the facility or by the facility and a representative of the Department.

(5) The Department may issue a refund and otherwise take such actions as it deems appropriate based upon the audit findings.

Stat. Auth.: ORS 409.050, 410.070, 411.060

Stats. Implemented: ORS 409.750, OL 2003, 736 § 21

Hist.: OMAP 3-2005, f. & cert. ef. 2-1-05; DMAP 2-2008, f. & cert. ef. 1-25-08; DMAP 29-2008, f. 8-29-08, cert. ef. 9-1-08; Renumbered from 410-050-0501, SDP 3-2011, f. & cert. ef. 2-1-11

411-069-0100

Notice of Proposed Action

(1) Prior to issuing a notice of proposed action, the Department will notify the facility of a potential deficiency or failure to report that could give rise to the imposition of a penalty. The Department shall issue a 30 day notification letter within 30 calendar days of the report or payment due date. The facility shall have 30 calendar days from the date of the notice to respond to the notification. The Department may consider the response, if any, and any amended report under OAR 410-050-0461 in its notice of proposed action. In all cases that the Department has determined that a facility has a deficiency or failure to report, the Department shall issue a notice of proposed action. The Department will not issue a notice of proposed action if the issue is resolved satisfactorily within 59 days from the date of mailing the 30 day notification letter.

(2) The Department shall issue a notice of proposed action within 60 calendar days from the date of mailing the 30 day notification letter.

(3) Contents of the notice of proposed action must include:

(a) The applicable calendar quarter;

(b) The basis for determining the corrected amount of tax for the quarter;

(c) The corrected tax due for the quarter as determined by the Department;

(d) The amount of tax paid for the quarter by the facility;

(e) The resulting deficiency, which is the difference between the amount received by the Department for the calendar quarter and the corrected amount due as determined by the Department;

(f) Statutory basis for the penalty;

(g) Amount of penalty per day of delinquency;

(h) Date upon which the penalty began to accrue;

(i) Date the penalty stopped accruing or circumstances under which the penalty will stop accruing;

(j) The total penalty accrued up to the date of the notice;

(k) Instructions for responding to the notice; and

(l) A statement of the facility’s right to a hearing.

Stat. Auth.: ORS 409.050, 410.070 & 411.060

Stats. Implemented: ORS 409.750, OL 2003 Ch. 736 Sec. 20

Hist.: OMAP 3-2005, f. & cert. ef. 2-1-05; DMAP 2-2008, f. & cert. ef. 1-25-08; DMAP 29-2008, f. 8-29-08, cert. ef. 9-1-08; Renumbered from 410-050-0511, SDP 3-2011, f. & cert. ef. 2-1-11

411-069-0110

Required Notice

(1) Any notice required to be sent to the facility will be sent to the current licensee and any former licensee who was occupying the property during the time period to which the notice relates.

(2) Any notice required to be sent from the facility to the Department under these rules will be sent to the point of contact identified on the communication from the Department to the facility.

Stat. Auth.: ORS 409.050, 410.070, 411.060

Stats. Implemented: ORS 409.750, OL 2003 736 § 20

Hist.: OMAP 3-2005, f. & cert. ef. 2-1-05; DMAP 2-2008, f. & cert. ef. 1-25-08; Renumbered from 410-050-0511, SDP 3-2021, f. & cert. ef. 2-1-11

411-069-0120

Hearing Process

(1) Any facility that receives a notice of proposed action may request a contested case hearing as provided under ORS chapter 183.

(2) The written request must be received by the Department within 20 days of the date of the notice.

(3) Prior to the hearing, the facility shall meet with the Department for an informal conference.

(a) The informal conference may be used to negotiate a written settlement agreement.

(b) If the settlement agreement includes a reduction or waiver of penalties, the agreement must be approved and signed by the Director.

(4) Nothing in this section will preclude the Department and the facility from agreeing to an informal disposition of the contested case at any time, consistent with ORS 183.415(5).

(5) If the case proceeds to a hearing, the administrative law judge will issue a proposed order with respect to the notice of proposed action.

Stat. Auth.: ORS 409.050, 410.070, 411.060

Stats. Implemented: ORS 409.750, OL 2003 736 § 20

Hist.: OMAP 3-2005, f. & cert. ef. 2-1-05; DMAP 2-2008, f. & cert. ef. 1-25-08; Renumbered from 410-050-0551, SDP 3-2021, f. & cert. ef. 2-1-11

411-069-0130

Final Order of Payment

The Department will issue a Final Order of Payment for deficiencies and/or penalties when:

(1) Any part of the deficiency or penalty is upheld after a hearing;

(2) The facility did not make a timely request for a hearing; or

(3) Upon the stipulation of the facility and the Department.

Stat. Auth.: ORS 409.050, 410.070, 411.060

Stats. Implemented: ORS 409.750, OL 2003 736 § 20

Hist.: OMAP 3-2005, f. & cert. ef. 2-1-05; DMAP 2-2008, f. & cert. ef. 1-25-08; Renumbered from 410-050-0541, SDP 3-2021, f. & cert. ef. 2-1-11

411-069-0140

Remedies Available after Final Order of Payment

(1) Any amounts due and owing under the final order of payment and any interest thereon may be recovered by Oregon as a debt to the state, using any available legal and equitable remedies. These remedies include, but are not limited to:

(a) Collection activities including but not limited to deducting the amount of the final deficiency and penalty from any sum then or later owed to the facility or its owners or operators by the Department, CMS, or their designees to the extent allowed by law;

(b) Nursing facility license denial, suspension, or revocation under OAR 411-089-0040;

(c) Restrictions of admissions to the facility under OAR 411-089-0050; and

(d) Terminating the provider contract with the owners or operators of the facility under OAR 411-070-0015.

(2) Every payment obligation shall bear interest at the statutory rate of interest in ORS 82.010 accruing from the date of the final order of payment and continuing until the payment obligation, including interest, has been discharged.

Stat. Auth.: ORS 409.050, 410.070, 411.060

Stats. Implemented: ORS 409.750, OL 2003 736 § 20

Hist.: OMAP 3-2005, f. & cert. ef. 2-1-05; DMAP 2-2008, f. & cert. ef. 1-25-08; Renumbered from 410-050-0551, SDP 3-2021, f. & cert. ef. 2-1-11

411-069-0150

Calculation of Long Term Care Facility Tax

(1) The amount of the tax is based on the assessment rate determined by the Director multiplied by the number of patient days at the long term care facility for a calendar quarter.

(2) The Director must establish an annual assessment rate for long term care facilities that applies for each 12-month period beginning July 1. The Director must establish the assessment rate on or before June 15 preceding the 12-month period for which the rate applies.

(3) On or before October 31, the Department will refund any overages from the prior fiscal year. For example, by October 31, 2007, the Department will refund any overages from fiscal year 2006. Overages are defined as any amount of provider tax that exceeds the federal maximum provider tax limit in effect for the fiscal year.

Stat. Auth.: ORS 409.050, 410.070, 411.060

Stats. Implemented: ORS 409.750, OL 2003 736 §§ 17

Hist.: OMAP 3-2005, f. & cert. ef. 2-1-05; DMAP 2-2008, f. & cert. ef. 1-25-08; Renumbered from 410-050-0561, SDP 3-2021, f. & cert. ef. 2-1-11

411-069-0160

Limitations On The Imposition of the Long Term Care Facility Tax

The long term care facility tax may be imposed only in a calendar quarter for which the long term care facility reimbursement rate that is part of the Oregon Medicaid reimbursement system was calculated according to the methodology described in Oregon Laws 2003, chapter 736, section 24.

Stat. Auth.: ORS 409.050, 410.070, 411.060

Stats. Implemented: ORS 409.750, OL 2003, 736 § 29

Hist.: OMAP 3-2005, f. & cert. ef. 2-1-05; DMAP 2-2008, f. & cert. ef. 1-25-08; Renumbered from 410-050-0591, SDP 3-2021, f. & cert. ef. 2-1-11

411-069-0170

Sunset Provision

The long term care tax applies to long term care facility gross revenue received on or after June 2003 and before July 1, 2014.

Stat. Auth.: ORS 409.050, 410.070, 411.060

Stats. Implemented: ORS 409.750, OL 2003, 736 § 15-31

Hist.: DMAP 2-2008, f. & cert. ef. 1-25-08; Renumbered from 410-050-0601, SDP 3-2021, f. & cert. ef. 2-1-11

 

Rule Caption: Long-Term Support for Children with Developmental Disabilities.

Adm. Order No.: SPD 4-2011(Temp)

Filed with Sec. of State: 2-1-2011

Certified to be Effective: 2-1-11 thru 7-31-11

Notice Publication Date:

Rules Amended: 411-308-0020, 411-308-0050, 411-308-0060, 411-308-0070, 411-308-0080, 411-308-0090, 411-308-0120

Subject: The Department of Human Services (DHS), Seniors and People with Disabilities Division (SPD) is temporarily amending the long-term support for children with developmental disabilities rules in OAR chapter 411, division 308 to:

      • Implement a limitation on the maximum amount of support available to each child;

      • Clarify the requirement to fully utilize all appropriate alternate resources, prior to and during enrollment, to reduce per case costs; and

      • Clarify that the eight hours of unpaid support the child’s family is expected to provide excludes sleeping hours.

      The temporary rulemaking allows SPD to continue to provide long-term support through the end of the current biennium. Long-term support allows children to remain in their family homes and prevents out of home placement.

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

411-308-0020

Definitions

(1) “Abuse” means abuse of a child as defined in ORS 419B.005.

(2) “Activities of Daily Living (ADL)” mean activities usually performed in the course of a normal day in the child’s life such as eating, dressing and grooming, bathing and personal hygiene, mobility (ambulation and transfer), elimination (toileting, bowel, and bladder management), and cognition and behavior (play and social development).

(3) “Annual Support Plan” means the written details of the supports, activities, costs, and resources required for a child to be supported by the family in the family home. The child’s Annual Support Plan articulates decisions and agreements made through a child- and family-centered process of planning and information-gathering conducted or arranged for by the child’s services coordinator that involves the child (to the extent normal and appropriate for the child’s age) and other persons who have been identified and invited to participate by the child’s parent or guardian. The child’s Annual Support Plan is the only plan of care required by the Division for a child receiving long-term support.

(4) “Assistant Director” means the assistant director of the Division, or that person’s designee.

(5) “Child” means an individual under the age of 18 and eligible for long-term support.

(6) “Children’s Intensive In-Home Services” means, for the purpose of these rules, the services described in:

(a) OAR chapter 411, division 300, Children’s Intensive In-Home Services, Behavior Program;

(b) OAR chapter 411, division 350, Medically Fragile Children Services; or

(c) OAR chapter 411, division 355, Medically Involved Children’s Program.

(7) “Community Developmental Disability Program (CDDP)” means an entity that is responsible for planning and delivery of services for individuals with developmental disabilities in a specific geographic service area of the state operated by or under contract with the Division or a local mental health authority.

(8) “Cost Effective” means that a specific service or support meets the child’s service needs and costs less than, or is comparable to, other service options considered.

(9) “CPMS” means the Client Processing Monitoring System.

(10) “Crisis” means the risk factors described in OAR 411-320-0160(2) are present for which no appropriate alternative resources are available and the child meets the eligibility requirements for crisis diversion services in OAR 411-320-0160(3).

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

(12) “Developmental Disability” means a disability that originates in the developmental years, that is likely to continue, and significantly impacts adaptive behavior as diagnosed and measured by a qualified professional. Developmental disabilities include mental retardation, autism, cerebral palsy, epilepsy, or other neurological disabling conditions that require training or support similar to that required by individuals with mental retardation, and the disability:

(a) Originates before the individual reaches the age of 22 years, except that in the case of mental retardation, the condition must be manifested before the age of 18;

(b) Originates and directly affects the brain and has continued, or must be expected to continue, indefinitely;

(c) Constitutes a significant impairment in adaptive behavior; and

(d) Is not primarily attributed to other conditions, including but not limited to mental or emotional disorder, sensory impairment, substance abuse, personality disorder, learning disability, or Attention Deficit Hyperactivity Disorder.

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

(14) “Employer-Related Supports” mean activities that assist a family with directing and supervising provision of services described in a child’s Annual Support Plan. Supports to a family assuming the role of employer include but are not limited to:

(a) Education about employer responsibilities;

(b) Orientation to basic wage and hour issues;

(c) Use of common employer-related tools such as job descriptions; and

(d) Fiscal intermediary services.

(15) “Family” for determining a child’s eligibility for long-term support as a resident in the family home, for identifying persons who may apply, plan, and arrange for a child’s supports, and for determining who may receive family training, means a unit of two or more persons that includes at least one child with developmental disabilities where the primary caregiver is:

(a) Related to the child by blood, marriage, or legal adoption; or

(b) In a domestic relationship where partners share:

(A) A permanent residence;

(B) Joint responsibility for the household in general (e.g. child-rearing, maintenance of the residence, basic living expenses); and

(C) Joint responsibility for supporting a child in the household with developmental disabilities and the child is related to one of the partners by blood, marriage, or legal adoption.

(16) “Family Home” means a child’s primary residence that is not licensed, certified by, and under contract with the Department as a foster home, residential care facility, assisted living facility, nursing facility, or other residential support program site.

(17) “Fiscal Intermediary” means a person or entity that receives and distributes long-term support funds on behalf of the family of an eligible child according to the child’s Annual Support Plan.

(18) “Founded Reports” means the Department’s Children, Adults, and Families Division or Law Enforcement Authority (LEA) determination, based on the evidence, that there is reasonable cause to believe that conduct in violation of the child abuse statutes or rules has occurred and such conduct is attributable to the person alleged to have engaged in the conduct.

(19) “General Business Provider” means an organization or entity selected by the parent or guardian of an eligible child, and paid with long-term support funds that:

(a) Is primarily in business to provide the service chosen by the child’s parent or guardian to the general public;

(b) Provides services for the child through employees, contractors, or volunteers; and

(c) Receives compensation to recruit, supervise, and pay the persons who actually provide support for the child.

(20) “Guardian” means a person or agency appointed and authorized by the courts to make decisions about services for the child.

(21) “Incident Report” means a written report of any injury, accident, act of physical aggression, or unusual incident involving a child.

(22) “Independent Provider” means a person selected by a child’s parent or guardian and paid with long-term support funds that personally provide services to the child.

(23) “Individual” means a person with developmental disabilities for whom services are planned and provided.

(24) “Long-Term Support” means individualized planning and service coordination, arranging for services to be provided in accordance with Annual Support Plans, and purchase of supports that are not available through other resources that are required for children with developmental disabilities who are eligible for crisis diversion services to live in the family home. Long-term supports are designed to:

(a) Prevent unwanted out-of-home placement and maintain family unity; and

(b) Whenever possible, reunite families with children with developmental disabilities who have been placed out of the home.

(25) “Long-Term Support Funds” mean public funds contracted by the Department to the community developmental disability program and managed by the community developmental disability program to assist families with the purchase of supports for children with developmental disabilities according to each child’s Annual Support Plan. Long-term support funds are available only to children for whom the Department designates funds to the community developmental disability program by written contracts that specify the children by name.

(26) “Mandatory Reporter” means any public or private official who comes in contact with and has reasonable cause to believe a child has suffered abuse, or comes in contact with any person whom the official has reasonable cause to believe abused a child, regardless of whether or not the knowledge of the abuse was gained in the reporter’s official capacity. Nothing contained in ORS 40.225 to 40.295 shall affect the duty to report imposed by this section, except that a psychiatrist, psychologist, clergyman, attorney, or guardian ad litem appointed under ORS 419B.231 shall not be required to report such information communicated by a person if the communication is privileged under ORS 40.225 to 40.295.

(27) “Nurse” means a person who holds a current license from the Oregon Board of Nursing as a registered nurse or licensed practical nurse pursuant to ORS chapter 678.

(28) “Nursing Care Plan” means a plan of care developed by a nurse that describes the medical, nursing, psychosocial, and other needs of a child and how those needs shall be met. The Nursing Care Plan includes which tasks shall be taught, assigned, or delegated to the qualified provider or family.

(29) “OHP” means the Oregon Health Plan.

(30) “Oregon Intervention System (OIS)” means a system of providing training to people who work with designated individuals to intervene physically or non-physically to keep individuals from harming self or others. The Oregon Intervention System is based on a positive approach that includes methods of effective evasion, deflection, and escape from holding.

(31) “Plan Year” means twelve consecutive months used to calculate what long-term support funds may be made available annually to support an eligible child.

(32) “Positive Behavioral Theory and Practice” means a proactive approach to individual behavior and behavior interventions that:

(a) Emphasizes the development of functional alternative behavior and positive behavior intervention;

(b) Uses the least intervention possible;

(c) Ensures that abusive or demeaning interventions are never used; and

(d) Evaluates the effectiveness of behavior interventions based on objective data.

(33) “Provider Organization” means an entity selected by a child’s parent or guardian, and paid with long-term support funds that:

(a) Is primarily in business to provide supports for individuals with developmental disabilities;

(b) Provides supports for the individual through employees, contractors, or volunteers; and

(c) Receives compensation to recruit, supervise, and pay the persons who actually provide support for the individual.

(34) “Quality Assurance” means a systematic procedure for assessing the effectiveness, efficiency, and appropriateness of services.

(35) “Regional Process” means a standardized set of procedures through which a child’s Annual Support Plan and funding to implement the Annual Support Plan are reviewed for approval. The process includes review of the potential risk of out-of-home placement, the appropriateness of the proposed supports, and cost effectiveness of the Annual Support Plan.

(36) “Services Coordinator” means an employee of the community developmental disability program or other agency that contracts with the county or Division, who plans, procures, coordinates, and monitors long-term support, and acts as a proponent for children with developmental disabilities and their families.

(37) “Substantiated” means an abuse investigation has been completed by the Department or the Department’s designee and the preponderance of the evidence establishes the abuse occurred.

(38) “Support” means assistance eligible children and their families require, solely because of the effects of developmental disability on the child, to maintain the child in the family home.

(39) “These Rules” mean the rules in OAR chapter 411, division 308.

(40) “Volunteer” means any person providing services without pay to a child receiving long term supports.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 427.005, 427.007, 430.610 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 5-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 4-2011(Temp), f. & cert. ef. 2-1-11 thru 7-31-11

411-308-0050

Financial Limits of Long-Term Support

(1) In any plan year, long-term support funds used to purchase supports for a child must be limited to the amount of long-term support funds specified in the child’s Annual Support Plan. The amount of long-term support funds specified in the child’s Annual Support Plan may not exceed the maximum allowable monthly plan amount published in the Division’s rate guidelines in any month during the plan year.

(2) Payment rates used to establish the limits of financial assistance for specific service in the child’s Annual Support Plan must be based on the Division’s rate guidelines for costs of frequently-used services. Division rate guidelines notwithstanding, final costs may not exceed local usual and customary charges for these services as evidenced by the CDDP’s own documentation.

Stat. Auth.: ORS 409.050, 410.070

Stats. Implemented: ORS 427.005, 427.007, 430.610 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; SPD 4-2011(Temp), f. & cert. ef. 2-1-11 thru 7-31-11

411-308-0060

Eligibility for Long-Term Support

(1) ELIGIBILITY. The CDDP of a child’s county of residence may find a child eligible for long-term support when the child:

(a) Is determined eligible for developmental disability services by the CDDP;

(b) Is under the age of 18;

(c) Is experiencing a crisis as defined in OAR 411-308-0020 and may be safely served in the family home;

(d) Has exhausted all appropriate alternative resources, including but not limited to natural supports and children’s intensive in-home services as defined in OAR 411-308-0020;

(e) Does not receive or will stop receiving other Department-paid in-home or community living services other than state Medicaid plan services, adoption assistance, or short-term assistance, including crisis services provided to prevent out-of-home placement; and

(f) Is at risk of out-of-home placement and requires long-term support to be maintained in the family home; or

(g) Requires long-term support to return to the family home and resides in a Department-paid residential service.

(2) CONCURRENT ELIGIBLITY. Children are not eligible for long-term support from more than one CDDP unless the concurrent service:

(a) Is necessary to affect transition from one county to another with a change of residence;

(b) Is part of a collaborative plan developed by both CDDPs; and

(c) Does not duplicate services and expenditures.

Stat. Auth.: ORS 409.050, 410.070

Stats. Implemented: ORS 427.005, 427.007, & 430.610 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; SPD 4-2011(Temp), f. & cert. ef. 2-1-11 thru 7-31-11

411-308-0070

Long-Term Support Entry, Duration, and Exit

(1) ENTRY. An eligible child may enter long-term support only when long-term support needs are authorized through a regional process specifically to provide supports required to prevent out-of-home placement of the eligible child, or to provide supports required for an eligible child to return to the family home from a community placement. Long-term support funding must be reauthorized on an annual basis, prior to the beginning of a new Annual Support Plan.

(2) DURATION OF SERVICES. Once a child has entered long-term support, the child and family may continue receiving services from that CDDP through the last day of the month during which the child turns 18, as long as the supports continue to be necessary to prevent out-of-home placement, the child remains eligible for long-term support, and long-term support funds are available at the CDDP and authorized by the Division to continue services. The child’s Annual Support Plan must be developed each year and kept current.

(3) CHANGE IN SUPPORTS. All increases in the child’s Annual Support Plan, excluding statewide cost of living increases, must be approved through a regional process. Redirection of more than 25 percent of the long-term support funds in the child’s Annual Support Plan to purchase different supports than those originally authorized must be approved through a regional process.

(4) CHANGE OF COUNTY OF RESIDENCE. If a child and family move outside the CDDP’s area of service, the originating CDDP must arrange for services purchased with long-term support funds to continue, to the extent possible, in the new county of residence. The originating CDDP must:

(a) Provide information about the need to apply for services in the new CDDP and assist the family with application for services if necessary; and

(b) Contact the new CDDP to negotiate the date on which the long-term support, including responsibility for payments, shall transfer to the new CDDP.

(5) EXIT. A child must leave a CDDP’s long-term support:

(a) When the child no longer resides in the family home;

(b) At the written request of the child’s parent or guardian to end the long-term supports;

(c) When the long-term supports are no longer necessary to prevent out-of-home placement due to either;

(A) The risk of out of home placement no longer exists due to changes in either the child’s support needs or the family’s ability to provide the support; or

(B) Appropriate alternative resources become available, including but not limited to supports through children’s intensive in-home services as defined in OAR 411-308-0020.

(d) At the end of the last day of the month during which the child turns 18;

(e) When the child and family moves to a county outside the CDDP’s area of service, unless transition services have been previously arranged and authorized by the CDDP as required in section (4) of this rule; or

(f) No less than 30 days after the CDDP has served written notice, in the language used by the family, of intent to terminate services because:

(A) The child’s family either cannot be located or has not responded to repeated attempts by CDDP staff to complete the child’s Annual Support Plan development and monitoring activities and does not respond to the notice of intent to terminate; or

(B) The CDDP has sufficient evidence that the family has engaged in fraud or misrepresentation, failed to use resources as agreed upon in the child’s Annual Support Plan, refused to cooperate with documenting expenses, or otherwise knowingly misused public funds associated with long-term support.

Stat. Auth.: ORS 409.050, 410.070

Stats. Implemented: ORS 427.005, 427.007, & 430.610 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; SPD 4-2011(Temp), f. & cert. ef. 2-1-11 thru 7-31-11

411-308-0080

Annual Support Plan

(1) The CDDP must provide or arrange for an annual planning process to assist families in establishing outcomes, determining needs, planning for supports, and reviewing and redesigning support strategies for all children eligible for long-term support. The planning process must occur in a manner that:

(a) Identifies and applies existing abilities, relationships, and resources while strengthening naturally occurring opportunities for support at home and in the community; and

(b) Is consistent in both style and setting with the child’s and family’s needs and preferences, including but not limited to informal interviews, informal observations in home and community settings, or formally structured meetings.

(2) The CDDP, the child (as appropriate), and the child’s family must develop a written Annual Support Plan for the child as a result of the planning process prior to purchasing supports with long-term support funds and annually thereafter. The child’s Annual Support Plan must include but not be limited to:

(a) The eligible child’s legal name and the name of the child’s parent (if different than the child’s last name), or the name of the child’s guardian;

(b) A description of the supports and the reason the support is necessary to prevent out-of-home placement or to return the child from a community placement outside the family home;

(c) Beginning and end dates of the plan year as well as when specific activities and supports are to begin and end;

(d) The type of provider, quantity, frequency, and per unit cost of supports to be purchased with long-term support funds;

(e) Total annual cost of supports;

(f) The schedule of the child’s Annual Support Plan reviews; and

(g) Signatures of the child’s services coordinator, the child’s parent or guardian, and the child (as appropriate).

(3) The child’s Annual Support Plan or records supporting development of each child’s Annual Support Plan must include evidence that:

(a) Long-term support funds are used only to purchase goods or services necessary to prevent the child from out-of-home placement, or to return the child from a community placement to the family home;

(b) The services coordinator has assessed the availability of other means for providing the supports before using long-term support funds, and other public, private, formal, and informal resources available to the child have been applied and new resources have been developed whenever possible;

(c) Basic health and safety needs and supports have been addressed including but not limited to identification of risks including risk of serious neglect, intimidation, and exploitation;

(d) Informed decisions by the child’s parent or guardian regarding the nature of supports or other steps taken to ameliorate any identified risks; and

(e) Education and support for the child and the child’s family to recognize and report abuse.

(4) The services coordinator must obtain and attach a Nursing Care Plan to the child’s written Annual Support Plan when long-term support funds are used to purchase care and services requiring the education and training of a nurse.

(5) The services coordinator must obtain and attach a Behavior Support Plan to the child’s written Annual Support Plan when the Behavior Support Plan shall be implemented by the child’s family or providers during the plan year.

(6) Long-term supports may only be provided after the child’s Annual Support Plan is developed in accordance with sections (1), (2), (3), (4), and (5) of this rule, authorized by the CDDP, and signed by the child’s parent or guardian.

(7) The services coordinator must review and reconcile receipts and records of purchased supports authorized by the child’s Annual Support Plan and subsequent Annual Support Plan documents, at least quarterly during the plan year.

(8) At least annually or more frequently if required by the region, the services coordinator must conduct and document reviews of the child’s Annual Support Plan and resources with the child’s family as follows:

(a) Evaluate progress toward achieving the purposes of the child’s Annual Support Plan;

(b) Record actual long-term support fund costs;

(c) Note effectiveness of purchases based on services coordinator observation as well as family satisfaction; and

(d) Determine whether changing needs or availability of other resources have altered the need for specific supports or continued use of long-term support funds to purchase supports. This must include a review of the child’s continued risk for out-of-home placement and the availability of alternate resources, including eligibility for children’s intensive in-home services as defined in OAR 411-308-0020.

(9) When the family and eligible child move to a county outside its area of service, the originating CDDP must assist long-term support recipients by:

(a) Continuing long-term support fund payments authorized by the child’s Annual Support Plan which is current at the time of the move, if the support is available, until the transfer date agreed upon according to OAR 411-308-0070(4)(b); and

(b) Transferring the unexpended portion of the child’s long-term support funds to the new CDDP of residence.

Stat. Auth.: ORS 409.050, 410.070

Stats. Implemented: ORS 427.005, 427.007, & 430.610 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; SPD 4-2011(Temp), f. & cert. ef. 2-1-11 thru 7-31-11

411-308-0090

Managing and Accessing Long-Term Support Funds

(1) Funds contracted to a CDDP by the Division to serve a specifically-named child must only be used to support that specified child. Services must be provided according to each child’s approved Annual Support Plan. The funds may only be used to purchase supports described in OAR 411-308-0120. Continuing need for services must be regularly reviewed according to the Division’s procedures described in these rules.

(2) No child receiving long-term support may concurrently receive services through:

(a) Children’s intensive in home services as defined in OAR 411-308-0020;

(b) Direct assistance or immediate access funds under family support; or

(c) Long-term support from another CDDP unless short-term concurrent services are necessary when a child moves from one CDDP to another and the concurrent supports are arranged in accordance with OAR 411-308-0060(2).

(3) Children receiving long-term support may receive short-term crisis diversion services provided through the CDDP or region. Children receiving long-term support may utilize family support information and referral services, other than direct assistance or immediate access funds, while receiving long-term support. The CDDP must clearly document the services and demonstrate that the services are arranged in a manner that does not allow duplication of funding.

Stat. Auth.: ORS 409.050, 410.070

Stats. Implemented: ORS 427.005, 427.007, & 430.610 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 5-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 4-2011(Temp), f. & cert. ef. 2-1-11 thru 7-31-11

411-308-0120

Supports Purchased with Long-Term Support Funds

(1) When conditions of purchase are met and provided purchases are not prohibited under OAR 411-308-0110, long-term support funds may be used to purchase a combination of the following supports based upon the needs of the child consistent with the child’s Annual Support Plan and available funding:

(a) Specialized consultation including behavior consultation and nursing delegation;

(b) Environmental accessibility adaptations;

(c) Family caregiver supports;

(d) Family training;

(e) In-home daily care;

(f) Respite; and

(g) Specialized equipment and supplies.

(2) SPECIALIZED CONSULTATION – BEHAVIOR CONSULTATION. Behavior consultation is the purchase of individualized consultation provided only as needed in the family home to respond to a specific problem or behavior identified by the child’s parent or guardian and the services coordinator. Behavior consultation services must be documented in a Behavior Support Plan prior to final payment for the services.

(a) Behavior consultation shall only be authorized to support a primary caregiver in their caregiving role, not as a replacement for an educational service offered through the school.

(b) Behavior consultation must include:

(A) Working with the family to identify:

(i) Areas of a child’s family home life that are of most concern for the family and child;

(ii) The formal or informal responses the family or provider has used in those areas; and

(iii) The unique characteristics of the family that could influence the responses that would work with the child.

(B) ASSESSING THE CHILD. The behavior consultant utilized by the family must conduct an assessment and interact with the child in the family home and community setting in which the child spends most of their time. The assessment must include:

(i) Specific identification of the behaviors or areas of concern;

(ii) Identification of the settings or events likely to be associated with or to trigger the behavior;

(iii) Identification of early warning signs of the behavior;

(iv) Identification of the probable reasons that are causing the behavior and the needs of the child that are being met by the behavior, including the possibility that the behavior is:

(I) An effort to communicate;

(II) The result of a medical condition;

(III) The result of an environmental cause; or

(IV) The symptom of an emotional or psychiatric disorder.

(v) Evaluation and identification of the impact of disabilities (i.e. autism, blindness, deafness, etc.) that impact the development of strategies and affect the child and the area of concern;

(vi) An assessment of current communication strategies; and

(vii) Identification of possible alternative or replacement behaviors.

(C) Developing a variety of positive strategies that assist the family and provider to help the child use acceptable, alternative actions to meet the child’s needs in the most cost effective manner. These strategies may include changes in the physical and social environment, developing effective communication, and appropriate responses by a family and provider to the early warning signs.

(i) Positive, preventive interventions must be emphasized.

(ii) The least intrusive intervention possible must be used.

(iii) Abusive or demeaning interventions must never be used.

(iv) The strategies must be adapted to the specific disabilities of the child and the style or culture of the family.

(D) Developing emergency and crisis procedures to be used to keep the child, family, and provider safe. When interventions in the behavior of the child are necessary, positive, preventative, non-aversive interventions that conform to OIS must be utilized. The Division does not pay a provider to use physical restraints on a child receiving long-term support.

(E) Developing a written Behavior Support Plan consistent with OIS that includes the following:

(i) Use of clear, concrete language and in a manner that is understandable to the family and provider; and

(ii) Describes the assessment, recommendations, strategies, and procedures to be used.

(F) Teaching the provider and family the recommended strategies and procedures to be used in the child’s natural environment.

(G) Monitoring, assessing, and revising the Behavior Support Plan as needed based on the effectiveness of implemented strategies. If protective physical intervention techniques are included in the Behavior Support Plan for use by the family, monthly practice of the technique must be observed by an OIS approved trainer.

(c) Behavior consultation does not include:

(A) Mental health therapy or counseling;

(B) Health or mental health plan coverage; or

(C) Educational services including but not limited to consultation and training for classroom staff, adaptations to meet the needs of the child at school, assessment in the school setting for the purposes of an Individualized Education Program, or any service identified by the school as required to carry out the child’s Individualized Education Program.

(3) SPECIALIZED CONSULTATION – NURSING DELEGATION.

(a) Nursing delegation is the purchase of individualized consultation from a nurse in order to delegate tasks of nursing services in select situations. Tasks of nursing care are those procedures that require nursing education and licensure of a nurse to perform as described in OAR chapter 851, division 047.

(b) The Division requires nursing delegation for unlicensed providers paid with long-term support funds when a child requires tasks of nursing care.

(4) ENVIRONMENTAL ACCESSIBILITY ADAPTATIONS.

(a) Environmental accessibility adaptations include:

(A) Physical adaptations to a family home that are necessary to ensure the health, welfare, and safety of the child in the family home due to the child’s developmental disability or that are necessary to enable the child to function with greater independence around the family home and in family activities;

(B) Environmental modification consultation to determine the appropriate type of adaptation to ensure the health, welfare, and safety of the child; and

(C) Motor vehicle adaptations for the primary vehicle used by the child that are necessary to meet the unique needs of the child and ensure the health, welfare, and safety of the child.

(b) Environmental accessibility adaptations exclude:

(A) Adaptations or improvements to the family home that are of general utility and are not for the direct safety, remedial, or long term benefit to the child;

(B) Adaptations that add to the total square footage of the family home; and

(C) General repair or maintenance and upkeep required for the family home or motor vehicle, including repair of damage caused by the child.

(c) Funding for environmental accessibility adaptations is one time funding that is not continued in subsequent plan years. Funding for each environmental accessibility adaptation must be specifically approved through a regional process to ensure the specific adaptation is necessary to prevent out-of-home placement or to return the child to the family home, and to ensure that the proposed adaptation is cost effective. Environmental accessibility adaptations may only be included in a child’s Annual Support Plan when all other public and private resources for the environmental accessibility adaptation have been exhausted.

(d) The CDDP must ensure that projects for environmental accessibility adaptations involving building renovation or new construction in or around a child’s home costing $5,000 or more per single instance or cumulatively over several modifications:

(A) Are approved by the Division before work begins and before final payment is made;

(B) Are completed or supervised by a contractor licensed and bonded in the State of Oregon; and

(C) That steps are taken as prescribed by the Division for protection of the Division’s interest through liens or other legally available means.

(e) The CDDP must obtain written authorization from the owner of a rental structure before any environmental accessibility adaptations are made to that structure. This does not preclude any reasonable accommodation required under the Americans with Disabilities Act.

(5) FAMILY CAREGIVER SUPPORTS. Family caregiver services assist families with unusual responsibilities of planning and managing provider services for their children.

(a) Family caregiver supports include:

(A) Child and family-centered planning facilitation and follow-up;

(B) Fiscal intermediary services to pay vendors and to carry out payroll and reporting functions when providers are domestic employees of the family; and

(C) Assistance with development of tools such as job descriptions, contracts, and employment agreements.

(b) Family caregiver supports exclude application fees and the cost of fingerprinting or other background check processing fee requirements.

(6) FAMILY TRAINING. Family training services include the purchase of training, coaching, counseling, and support that increase the family’s ability to care for and maintain the child in the family home.

(a) Family training services include:

(A) Counseling services that assist the family with the stresses of having a child with a developmental disability.

(i) To be authorized, the counseling services must:

(I) Be provided by licensed providers including but not limited to psychologists licensed under ORS 675.030, professionals licensed to practice medicine under ORS 677.100, social workers licensed under ORS 675.530, and counselors licensed under ORS 675.715;

(II) Directly relate to the child’s developmental disability and the ability of the family to care for the child; and

(III) Be short-term.

(ii) Counseling services are excluded for:

(I) Therapy that could be obtained through OHP or other payment mechanisms;

(II) General marriage counseling;

(III) Therapy to address family members’ psychopathology;

(IV) Counseling that addresses stressors not directly attributed to the child;

(V) Legal consultation;

(VI) Vocational training for family members; and

(VII) Training for families to carry out educational activities in lieu of school.

(B) Registration fees for organized conferences, workshops, and group trainings that offer information, education, training, and materials about the child’s developmental disability, medical, and health conditions.

(i) Conferences, workshops, or group trainings must be prior authorized and include those that:

(I) Directly relate to the child’s developmental disability; and

(II) Increase the knowledge and skills of the family to care for and maintain the child in the family home.

(ii) Conference, workshop, or group trainings costs exclude:

(I) Registration fees in excess of $500 per family for an individual event;

(II) Travel, food, and lodging expenses;

(III) Services otherwise provided under OHP or available through other resources; or

(IV) Costs for individual family members who are employed to care for the child.

(b) Funding for family training is one time funding that is not continued in subsequent plan years. Funding for each family training event must be specifically approved through a regional process to ensure the family training event is necessary to prevent out-of-home placement or to return the child to the family home, and to ensure the family training event is cost effective. Family training may only be included in a child’s Annual Support Plan when all other public and private resources for the event have been exhausted.

(7) IN-HOME DAILY CARE. In-home daily care services include the purchase of direct provider support provided to the child in the family home or community by qualified individual providers and agencies. Provider assistance provided through in-home daily care must support the child to live as independently as appropriate for the child’s age and must be based on the identified needs of the child, supporting the family in their primary caregiving role. Primary caregivers are expected to be present or immediately available during the provision of in-home daily care.

(a) In-home daily care services provided by qualified providers or agencies include:

(A) Basic personal hygiene – Assistance with bathing and grooming;

(B) Toileting, bowel, and bladder care – Assistance in the bathroom, diapering, external cleansing of perineal area, and care of catheters;

(C) Mobility – Transfers, comfort, positioning, and assistance with range of motion exercises;

(D) Nutrition – feeding and monitoring intake and output;

(E) Skin care – Dressing changes;

(F) Physical healthcare including delegated nursing tasks;

(G) Supervision – Providing an environment that is safe and meaningful for the child and interacting with the child to prevent danger to the child and others, and maintain skills and behaviors required to live in the home and community;

(H) Assisting the child with appropriate leisure activities to enhance development in and around the family home and provide training and support in personal environmental skills;

(I) Communication – Assisting the child in communicating, using any means used by the child;

(J) Neurological – Monitoring of seizures, administering medication, and observing status; and

(K) Accompanying the child and family to health related appointments.

(b) In-home daily care services must:

(A) Be previously authorized by the CDDP before services begin;

(B) Be necessary to resolve the crisis and documented in the child’s Annual Support Plan;

(C) Be delivered through the most cost effective method as determined by the services coordinator; and

(D) Only be provided when the child is present to receive services.

(c) In-home daily care services exclude:

(A) Hours that supplant the natural supports and services available from family, community, other government or public services, insurance plans, schools, philanthropic organizations, friends, or relatives;

(B) Hours to allow a primary caregiver to work or attend school;

(C) Hours that exceed what is necessary to resolve the crisis;

(D) Support generally provided at the child’s age by parents or other family members;

(E) Educational and supportive services provided by schools as part of a free and appropriate education for children and young adults under the Individuals with Disabilities Education Act;

(F) Services provided by the family; and

(G) Home schooling.

(d) In-home daily care services may not be provided on a 24-hour shift-staffing basis. The child’s primary caregiver is expected to provide at least eight hours of care and supervision for the child each day with the exception of overnight respite. The eight hours of care and supervision may not include hours when the child’s primary caregiver is sleeping.

(8) RESPITE. Respite services are provided to a child on a periodic or intermittent basis furnished because of the temporary absence of, or need for relief of, the primary caregiver.

(a) Respite may include both day and overnight services that may be provided in:

(A) The family home;

(B) A licensed, certified, or otherwise regulated setting;

(C) A qualified provider’s home. If overnight respite is provided in a qualified provider’s home, the CDDP and the child’s parent or guardian must document that the home is a safe setting for the child; or

(D) Disability-related or therapeutic recreational camp.

(b) The CDDP shall not authorize respite services:

(A) To allow primary caregivers to attend school or work;

(B) That are ongoing and occur on more than a periodic schedule, such as eight hours a day, five days a week;

(C) On more than 14 consecutive overnight stays in a calendar month;

(D) For more than 10 days per individual plan year when provided at a specialized camp;

(E) For vacation travel and lodging expenses; or

(F) To pay for room and board if provided at a licensed site or specialized camp.

(9) SPECIALIZED EQUIPMENT AND SUPPLIES. Specialized equipment and supplies include the purchase of devices, aids, controls, supplies, or appliances that are necessary to enable a child to increase their abilities to perform and support activities of daily living, or to perceive, control, or communicate with the environment in which they live.

(a) The purchase of specialized equipment and supplies may include the cost of a professional consultation, if required, to assess, identify, adapt, or fit specialized equipment. The cost of professional consultation may be included in the purchase price of the equipment.

(b) To be authorized by the CDDP, specialized equipment and supplies must:

(A) Be in addition to any medical equipment and supplies furnished under OHP and private insurance;

(B) Be determined necessary to the daily functions of the child; and

(C) Be directly related to the child’s disability.

(c) Specialized equipment and supplies exclude:

(A) Items that are not necessary or of direct medical or remedial benefit to the child;

(B) Specialized equipment and supplies intended to supplant similar items furnished under OHP or private insurance;

(C) Items available through family, community, or other governmental resources;

(D) Items that are considered unsafe for the child;

(E) Toys or outdoor play equipment; and

(F) Equipment and furnishings of general household use.

(d) Funding for specialized equipment with an expected life of more than one year is one time funding that is not continued in subsequent plan years. Funding for each specialized equipment purchase must be specifically approved through a regional process to ensure the support is necessary to prevent out-of-home placement or to return the child to the family home, and to ensure the support is cost effective. Specialized equipment may only be included in a child’s Annual Support Plan when all other public and private resources for the equipment have been exhausted.

(e) The CDDP must secure use of equipment or furnishings costing more than $500 through a written agreement between the CDDP and the child’s parent or guardian that specifies the time period the item is to be available to the child and the responsibilities of all parties should the item be lost, damaged, or sold within that time period. Any equipment or supplies purchased with long-term support funds that are not used according to the child’s Annual Support Plan, or according to an agreement securing the state’s use, may be immediately recovered.

Stat. Auth.: ORS 409.050, 410.070

Stats. Implemented: ORS 427.005, 427.007, & 430.610 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; SPD 4-2011(Temp), f. & cert. ef. 2-1-11 thru 7-31-11

 

Rule Caption: Certification change for supported living, proctor care residential, and employment and alternatives to employment services.

Adm. Order No.: SPD 5-2011(Temp)

Filed with Sec. of State: 2-7-2011

Certified to be Effective: 2-7-11 thru 8-1-11

Notice Publication Date:

Rules Amended: 411-328-0570, 411-328-0810, 411-335-0030, 411-335-0050, 411-335-0380, 411-345-0030, 411-345-0100, 411-345-0260

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 changing the certification period to five years for:

      • OAR chapter 411, division 328, Supported Living Services;

      • OAR chapter 411, division 335, Proctor Care Residential Services; and

      • OAR chapter 411, division 345, Employment and Alternatives to Employment Services.

      In addition, language associated with the certification timeframe and provider expectations is also being changed to comply with the five year cycle.

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

411-328-0570

Issuance of Certificate

(1) No person or governmental unit acting individually or jointly with any other person or governmental unit shall establish, conduct, maintain, manage, or operate a supported living program without being certified.

(2) Each certificate is issued only for the supported living program and persons or governmental units named in the application and is not transferable or assignable.

(3) A certificate issued on or before February 1, 2009 shall be valid for a maximum of five years unless revoked or suspended.

(4) As part of the certificate renewal process, the service provider must conduct a self-evaluation based upon the requirements of this rule.

(a) The service provider must document the self-evaluation information on forms provided by the Division;

(b) The service provider must develop and implement a plan of improvement based upon the findings of the self-evaluation; and

(c) The service provider must submit these documents to the local CDDP with a copy to the Division.

(5) The Division shall conduct a review of the service provider prior to the issuance of a certificate.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 5-1992, f. 8-21-92, cert. ef. 8-24-92; MHD 3-1997, f. & cert. ef. 2-7-97; Renumbered from 309-041-0570 by SPD 17-2009, f. & cert. ef. 12-9-09; SPD 5-2011(Temp), f. & cert. ef. 2-7-11 thru 8-1-11

411-328-0810

Program Management

(1) NON-DISCRIMINATION. The program must comply with all applicable state and federal statutes, rules, and regulations in regard to non-discrimination in employment practices.

(2) PROHIBITION AGAINST RETALIATION. A community program or service provider may not retaliate against any staff who reports in good faith suspected abuse or retaliate against the adult with respect to any report. An alleged perpetrator may not self-report solely for the purpose of claiming retaliation.

(a) Any community facility, community program, or person that retaliates against any person because of a report of suspected abuse or neglect shall be liable according to ORS 430.755, in a private action to that person for actual damages and, in addition, shall be subject to a penalty up to $1000, notwithstanding any other remedy provided by law.

(b) Any adverse action is evidence of retaliation if taken within 90 days of a report of abuse. Adverse action means only those actions arising solely from the filing of an abuse report. For purposes of this subsection, “adverse action” means any action taken by a community facility, community program, or person involved in a report against the person making the report or against the adult because of the report and includes but is not limited to:

(A) Discharge or transfer from the community program, except for clinical reasons;

(B) Discharge from or termination of employment;

(C) Demotion or reduction in remuneration for services; or

(D) Restriction or prohibition of access to the community program or the residents served by the program.

(3) DOCUMENTATION REQUIREMENTS. All entries required by this rule, unless stated otherwise, must:

(a) Be prepared at the time, or immediately following the event being recorded;

(b) Be accurate and contain no willful falsifications;

(c) Be legible, dated, and signed by the person making the entry; and

(d) Be maintained for no less than five years.

(4) DISSOLUTION. Prior to the dissolution of a program, a representative of the governing body or owner must notify the Division 30 days in advance in writing and make appropriate arrangements for the transfer of individuals’ records.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 5-1992, f. 8-21-92, cert. ef. 8-24-92; MHD 3-1997, f. & cert. ef. 2-7-97; Renumbered from 309-041-0810 by SPD 17-2009, f. & cert. ef. 12-9-09; SPD 5-2011(Temp), f. & cert. ef. 2-7-11 thru 8-1-11

411-335-0030

Agency Management and Personnel Practices

(1) NON-DISCRIMINATION. The agency must comply with all applicable state and federal statutes, rules, and regulations in regard to non-discrimination in employment practices.

(2) BASIC PERSONNEL POLICIES AND PROCEDURES. The agency must have and implement personnel policies and procedures that address suspension, increased supervision, or other appropriate disciplinary employment procedures when an agency staff member, or subcontractor including respite providers and volunteers, has been identified as an accused person in an abuse investigation or when the allegation of abuse has been substantiated. Policy must reflect that any incurred crime as described under the criminal records check rules in OAR 407-007-0200 to 407-007-0370 shall be reported to the agency.

(3) APPLICATION FOR EMPLOYMENT. An application for employment at the agency must inquire whether an applicant has had any founded reports of child abuse or substantiated abuse.

(4) CRIMINAL RECORDS CHECKS. Any employee, volunteer, proctor provider, respite provider, crisis provider, advisor, skill trainer, or any subject individual defined by OAR 407-007-0200 to 407-007-0370, who has or will have contact with a resident of the agency, 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 agency may not use public funds to support, in whole or in part, a person as described in section (4) of this rule in any capacity who has been convicted of any of the disqualifying crimes listed in OAR 407-007-0275.

(b) Section (4)(a) of this rule does not apply to employees of the proctor provider or proctor agency who were hired prior to July 28, 2009 and remain in the current position for which the employee was hired.

(c) Any employee, volunteer, proctor provider, respite provider, crisis provider, advisor, skill trainer, 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 OAR 407-007-0290. The person must notify the Department or its designee within 24 hours.

(5) INVESTIGATIONS. For investigations conducted by the Department or the Department’s designee in homes certified for children, the definitions of abuse described in ORS 419B.005 and OAR 407-045-0260 shall apply.

(6) PROHIBITION AGAINST RETALIATION. The agency may not retaliate against any agency staff member, subcontractor including respite providers and volunteers, or proctor providers that report in good faith suspected abuse, or retaliate against the individual, with respect to any report. An accused person may not self-report solely for the purpose of claiming retaliation.

(a) Any community facility, community program, or person that retaliates against any person because of a report of suspected abuse or neglect shall be liable according to ORS 430.755, in a private action to that person for actual damages and, in addition, shall be subject to a penalty up to $1000, notwithstanding any other remedy provided by law.

(b) Any adverse action is evidence of retaliation if taken within 90 days of a report of abuse. For purposes of this subsection, “adverse action” means any action taken by a community facility, community program, or person involved in a report against the person making the report or against the individual because of the report and includes but is not limited to:

(A) Discharge or transfer from the program, except for clinical reasons;

(B) Discharge from or termination of employment;

(C) Demotion or reduction in remuneration for services; or

(D) Restriction or prohibition of access to the program or the individuals served by the program.

(7) RESPONSIBILITIES OF PROCTOR AGENCY. The proctor agency must:

(a) Implement policies and procedures to assure support, health, safety, and crisis response for individuals served, including policies and procedures to assure necessary training of agency staff and proctor providers.

(b) Implement policies and procedures to assure that provider payment and agency support is commensurate to the support needs of individuals enrolled in the proctor care services. Policies and procedures must include frequency of review.

(c) Implement policies and procedures to assure support, health, safety, and crisis response for individuals placed in all types of respite care, including policies and procedures to assure training of respite care providers. The types of respite care include but are not limited to:

(A) Respite care in the proctor provider’s home during day hours only;

(B) Respite care in the home of someone other than the proctor provider for day time only;

(C) Overnight care in the proctor provider’s home; and

(D) Overnight care at someone other than the proctor provider’s home.

(d) Implement policies and procedures to assure confidentiality of individuals in service and of family information.

(e) Implement policies and procedures to review and document that each child enrolled in proctor care services continues to require such services. Policies and procedures must include frequency of review and the criteria as listed below.

(A) The child’s need for a formal Behavior Support Plan based on the Risk Tracking Record and functional assessment of the behavior.

(B) The child has been stable and generally free of serious behavioral or delinquency incidents for the past 12 months.

(C) The child has been free of psychiatric hospitalization (hospital psychiatric unit, Oregon State Hospital, and sub acute) for the last 12 months, except for assessment and evaluation.

(D) The child poses no significant risk to self or community.

(E) The proctor provider has not needed or utilized the agency crisis services in response to the child’s medical, mental health, or behavioral needs more than one time in the past 12 months.

(F) The proctor provider is successfully supporting the child over time, with a minimum of agency case management contact other than periodic monitoring and check in.

(G) The proctor provider does not require professional support for the child, and there has been or could be a reduction in ongoing weekly professional support for the child including consultation, skill training, and staffing.

(H) The proctor agency is not actively working with the child’s family to return the child to the family home.

(f) ADULTS IN PROCTOR SERVICES. Implement policies and procedures where the ISP Team evaluates annually the adult individual’s support needs and need for proctor services.

(g) Assure that preliminary certification or licensing activities (whichever is appropriate) are completed per the relevant foster care statutes and OAR chapter 411, divisions 346 or 360. Such work must be submitted to the Division for final review and approval.

(h) Complete an initial home study for all proctor provider applicants that are updated at the certification renewal for all licensed or certified proctor providers.

(i) Provide and document training and support to agency staff, proctor providers, subcontractors, volunteers, and respite providers to maintain the health and safety of the individuals served.

(j) Provide and document training and support to the agency staff, proctor providers, subcontractors, volunteers, and respite providers to implement the ISP process, including completion of a Risk Tracking Record, development of protocols and BSP for each individual served, and the development of the ISP.

(k) Have a plan for emergency back-up for home provider including but not limited to use of crisis respite, other proctor homes, additional staffing, and behavior support consultations.

(l) Coordinate and document entries, exits, and transfers.

(m) Report to the Division, and the CDDP, any placement changes due to a Crisis Plan made outside of normal working hours. Notification must be made by 9:00 a.m. of the first working day after the change has happened.

(n) Assure that each proctor provider has a current Emergency Disaster Plan on file in the proctor provider home, in the agency office, and provided to the CDDP and any case manager of an individual who is not an employee of the local CDDP.

(o) Assure emergency backup in the event the proctor provider is unavailable.

(8) GENERAL REQUIREMENTS FOR SAFETY AND TRAINING. All volunteers having contact with the individual, proctor providers, substitute caregivers, respite providers, child care providers, and agency staff, except for those providing services in a crisis situation, must:

(a) Receive training specific to the individual. This training must at a minimum consist of basic information on environment, health, safety, ADLs, positive behavioral supports, and behavioral needs for the individual, including the ISP, BSP, required protocols, and any emergency procedures. Training must include required documentation for health, safety, and behavioral needs of the individual.

(b) Receive OIS training. OIS certification is required if physical intervention is likely to occur as part of the BSP. Knowledge of OIS principles, not certification is required if it is unlikely that physical intervention shall be required.

(c) Receive mandatory reporter training.

(d) Receive confidentiality training.

(e) Be at least 18 years of age and have a valid social security card.

(f) Be cleared by the Department’s criminal records check requirements.

(g) Have a valid Oregon driver’s license and proof of insurance.

(h) Receive training in applicable agency policies and procedures.

(9) In addition to the above general requirements, the following requirements must be met for each specific provider classification as listed below.

(a) PROCTOR PROVIDERS:

(A) Must receive and maintain current First Aid and CPR training.

(B) Must have knowledge of these rules and OAR divisions 346 or 360 as appropriate to their license or certificate.

(b) SKILLS TRAINERS, ADVISORS, OR OTHER AGENCY STAFF:

(A) Must receive and maintain current First Aid and CPR training.

(B) Must have knowledge of these rules and OAR divisions 346 or 360.

(C) Anyone age 18 or older, living in an agency staff persons uncertified home must have an approved Department criminal records check per OAR 407-007-0200 to 407-007-0370 and as described in section (4) of this rule, prior to any visit of an individual to the staff person’s home.

(D) Must assure health and safety guidelines for alternative caregivers including but not limited to the following:

(i) The home and premises must be free from objects, materials, pets, and conditions that constitute a danger to the occupants and the home and premises must be clean and in good repair.

(ii) Any sleeping room used for an individual in respite must be finished, attached to the house, and not a common living area, closet, storage area, or garage. If a child is staying overnight, the sleeping arrangements must be safe and appropriate to the individual’s age, behavior, and support needs.

(iii) The home must have tubs or showers, toilets, and sinks that are operable and in good repair with hot and cold water.

(iv) The alternative caregivers must have access to a working telephone in the home, and must have a list of emergency telephone numbers and know where the numbers are located.

(v) All medications, poisonous chemicals, and cleaning materials must be stored in a way that prevents the individuals from accessing them, unless otherwise addressed in an individual’s ISP.

(vi) Firearms must be stored unloaded. Firearms and ammunition must be stored in separate locked locations. Loaded firearms must never be carried in any vehicle while it is being used to transport an individual.

(vii) First aid supplies must be available in the home and in the vehicles that shall be used to transport an individual.

(c) RESPITE PROVIDERS.

(A) IN PROCTOR PROVIDER HOME – DAY OR NIGHT:

(i) Must be trained on basic health needs of the individuals in service.

(ii) Must be trained on basic safety in the home including but not limited to first aid supplies, the Emergency Plan, and the Fire Evacuation Plan.

(B) IN OTHER THAN PROCTOR PROVIDER HOME – DAY OR NIGHT. Must assure health and safety guidelines for alternative caregivers, including but not limited to:

(i) The home and premises must be free from objects, materials, pets, and conditions that constitute a danger to the occupants and the home and premises must be clean and in good repair.

(ii) Any sleeping room used for an individual in respite must be finished, have a window that may be opened, be attached to the house, and not a common living area, storage area, closet, or garage. If the individual is staying overnight, the sleeping arrangements must be safe and appropriate to the individual’s age, behavior, and support needs.

(iii) The home must have tubs or showers, toilets, and sinks that are operable and in good repair with hot and cold water.

(iv) The alternative caregivers must have access to a working telephone in the home and must have a list of emergency telephone numbers and know where the numbers are located.

(v) All medications, poisonous chemicals, and cleaning materials must be stored in a way that prevents an individual from accessing them.

(vi) Firearms must be stored unloaded. Firearms and ammunition must be stored in separate locked locations. Loaded firearms must never be carried in any vehicle while it is being used to transport an individual.

(vii) First aid supplies must be available in the home and in the vehicles that shall be used to transport individuals.

(d) ALTERNATE CAREGIVERS.

(A) DAY CARE, CAMP:

(i) When a child is cared for by a child care provider, camp, or child care center, the proctor agency must assure that the camp, provider home, or center is certified, licensed, or registered as required by the Child Care Division (ORS 657A.280). The agency must also assure that the ISP team is in agreement with the plan for the child to attend the camp, child care center, or child care provider home.

(ii) Adults participating in employment or alternatives to employment must have such services addressed in their ISP. Any camping or alternative day service experience must be addressed in the ISP and approved by the ISP team.

(B) SOCIAL ACTIVITIES FOR LESS THAN 24 HOURS, INCLUDING OVERNIGHT ARRANGEMENTS:

(i) The proctor agency must assure the person providing care is capable of assuming all care responsibilities and shall be present at all times.

(ii) The proctor agency must assure that the ISP team is in agreement with the planned social activity.

(iii) The proctor agency must assure that the proctor provider maintains back-up responsibilities for the person in service.

(10) GENERAL CRISIS REQUIREMENTS FOR INDIVIDUALS ALREADY IN PROCTOR AGENCY HOMES.

(a) Crisis service providers must:

(A) Be at least 18 years of age.

(B) Have initial and annual approval to work based on current Department policies and procedures for review of criminal records check per OAR 407-007-0200 to 407-007-0370 and as described in section (4) of this rule, prior to supervising any individual. Providers serving children must also have a child welfare check completed on an annual basis.

(C) Upon placement of the individual, have knowledge of the individual’s needs. This knowledge must consist of basic information on health, safety, ADLs, and behavioral needs for the individual, including the ISP, BSP, and required protocols. Training for the provider must include information on required documentation for health, safety, and behavioral needs of the individual.

(b) The agency must:

(A) Make follow-up contact with the crisis providers within 24 hours of the placement to assess and assure the individual’s and provider’s support needs are met.

(B) Initiate transition planning with the ISP team and document the plan within 72 hours.

(11) MANDATORY ABUSE REPORTING PERSONNEL POLICIES AND PROCEDURES. Proctor agency staff and caregivers are mandatory reporters. Upon reasonable cause to believe that abuse has occurred, all members of the household and any proctor providers, substitute caregivers, agency employees, independent contractors, or volunteers must report pertinent information to the Department, the CDDP, or law enforcement. For reporting purposes the following shall apply:

(a) Notification of mandatory reporting status must be made at least annually to all proctor providers, agency employees, substitute caregivers, subcontractors, and volunteers, on forms provided by the Department.

(b) All agency employees and proctor providers must be provided with a Department produced card regarding abuse reporting status and abuse reporting requirements.

(12) DIRECTOR QUALIFICATIONS. The proctor agency must be operated under the supervision of a Director who has a minimum of a bachelor’s degree and two years of experience, including supervision, in developmental disabilities, mental health, rehabilitation, social services, or a related field. Six years of experience in the identified fields may be substituted for a degree.

(13) QUALIFICATIONS FOR PROCTOR AGENCY STAFF AND PROCTOR PROVIDERS INCLUDING SUBCONTRACTORS AND VOLUNTEERS. Any agency staff including skill trainers, respite providers, substitute caregivers, subcontractors, and volunteers must meet the following criteria:

(a) Be at least 18 years of age and have a valid social security card.

(b) Have approval to work based on Department policies and a criminal records check completed by the Department as described in section (4) of this rule.

(c) Disclosed any founded reports of child abuse or substantiated abuse.

(d) Be literate and capable of understanding written and oral orders, be able to communicate with individual’s physicians, services coordinators, and appropriate others, and be able to respond to emergency situations at all times.

(e) Have met the basic qualification in the agency’s Competency Based Training Plan.

(f) Meet any additional qualifications specified for substitute caregivers in OAR 411-360-0110 and OAR 411-360-0120 if working in a home licensed as an adult foster home for individuals with developmental disabilities.

(14) PERSONNEL FILES AND QUALIFICATION RECORDS. The agency must maintain clear, written, signed, and up-to-date job descriptions and respite agreements when applicable, as well as a file available to the Department or CDDP for inspection that includes written documentation of the following for each agency employee:

(a) Written documentation that references and qualifications were checked.

(b) Written documentation of an approved criminal records check by the Department as required by OAR 407-007-0200 to 407-007-0370.

(c) Written documentation of employees’ notification of mandatory abuse training and reporter status prior to supervising individuals and annually thereafter.

(d) Written documentation of any founded reports of child abuse or substantiated abuse.

(e) Written documentation kept current that the agency staff person has demonstrated competency in areas identified by the agency’s Competency Based Training Plan as required by Oregon’s Core Competencies defined in OAR 411-335-0020 and that is appropriate to their job description.

(f) Written documentation of 12 hours of job-related in-service training annually.

(g) Proctor providers must meet all of the standards in these rules and the standards that apply to the specific type of foster home:

(A) The child foster home certification standards in OAR chapter 411, division 346.

(B) The adult foster home licensing standards in OAR chapter 411, division 360.

(C) The child welfare administrative rules in OAR chapter 413, divisions 200 and 220.

(15) AGENCY DOCUMENTATION REQUIREMENTS. All documentation required by these rules must:

(a) Be prepared at the time, or immediately following the event being recorded.

(b) Be accurate and contain no willful falsification.

(c) Be legible, dated, and signed by the person making the entry.

(d) Be maintained for no less than five years.

(e) Be made readily available for the purposes of inspection.

(16) DISSOLUTION OF AGENCY. Prior to the dissolution of an agency, a representative of the governing body or owner of the agency must notify the Division 30 days in advance in writing and make appropriate arrangement for the transfer of individual’s records.

Stat. Auth.: ORS 409.050, 410.070, 427.005, 427.007, & 430.215

Stats. Implemented: ORS 430.021 & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; 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 5-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 5-2011(Temp), f. & cert. ef. 2-7-11 thru 8-1-11

411-335-0050

Issuance of Proctor Care Agency Certificate

(1) No person, agency, or governmental unit acting individually or jointly with any other person, agency, or governmental unit shall establish, conduct, maintain, manage, or operate Department funded proctor services in proctor provider homes for individuals with developmental disabilities without being certified by the Department for each home or facility.

(2) No certificate is transferable or applicable to any other agency, management agent, or ownership other than that indicated on the application and certificate.

(3) The Department shall issue a certificate to an agency found to be in compliance with these rules. A certificate issued on or before February 1, 2009 shall be valid for five years unless revoked or suspended.

(4) Any home managed and contracted to serve children with developmental disabilities by a proctor care agency under this certificate must be certified by the Department in accordance with the Division’s rules for children’s foster provider homes: OAR chapter 411, division 346.

(5) Any home managed and contracted to serve adults with developmental disabilities must be licensed as an adult foster home for adults with developmental disabilities (AFH-DD) in accordance with OAR chapter 411, division 360.

Stat. Auth.: ORS 409.050, 410.070, 427.005, 427.007, & 430.215

Stats. Implemented: ORS 430.021 & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 5-2011(Temp), f. & cert. ef. 2-7-11 thru 8-1-11

411-335-0380

Conditions

(1) Conditions may be attached to a certificate upon a finding that:

(a) Information on the application or initial inspection requires a condition to protect the health and safety of individuals;

(b) There exists a threat to the health, safety, and welfare of individuals;

(c) There is reliable evidence of abuse, neglect, or exploitation;

(d) The home or agency is not being operated in compliance with these rules; or

(e) The proctor provider is certified to care for a specific person only and further placements may not be made into that home or facility.

(2) Conditions that may be imposed on a certificate include but are not limited to:

(a) Restricting the total number of individuals;

(b) Restricting the number and support level of individuals allowed within a certified classification level based upon the capacity of the proctor provider and agency staff to meet the health and safety needs of all individuals;

(c) Reclassifying the level of individuals that can be served;

(d) Requiring additional agency staff or agency staff qualifications;

(e) Requiring additional training of proctor providers and agency staff;

(f) Requiring additional documentation; or

(g) Restriction of admissions.

(3) The agency shall be notified in writing of any conditions imposed, the reason for the conditions, and be given an opportunity to request a hearing under ORS 183.310 to 183.502.

(4) In addition to, or in lieu of, a contested case hearing, an agency may request a review by the Administrator or designee of conditions imposed by the Department. The review does not diminish the agency’s right to a hearing.

(5) Conditions may be imposed for the duration of the certificate period (five years) or limited to some other shorter period of time. If the condition corresponds to the certification period, the reasons for the condition shall be considered at the time of renewal to determine if the conditions are still appropriate. The effective date and expiration date of the condition shall be indicated on an attachment to the certificate.

Stat. Auth.: ORS 410.070, 409.050, 427.005 - 427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 5-2011(Temp), f. & cert. ef. 2-7-11 thru 8-1-11

411-345-0030

Issuance of Certificate

(1) No person or governmental unit acting individually or jointly with any other person or governmental unit shall establish, conduct, maintain, manage, or operate an employment or alternative to employment service without being certified.

(2) Each certificate is issued only for the employment or alternative to employment service and persons or governmental units named in the application. No certificate is transferable or assignable.

(3) A certificate issued on or after February 1, 2008 shall be valid for a maximum of five years unless revoked or suspended.

(4) As part of the certificate renewal process the service provider must conduct a self-evaluation based upon the requirements of this rule.

(a) The service provider must document the self-assessment on forms provided by the Department;

(b) The service provider must develop and implement a plan of improvement based upon the findings of the self-evaluation; and

(c) The service provider must submit these documents to the local CDDP with a copy to the Department.

(5) The Department shall conduct a review of the service provider prior to the issuance of a certificate.

[ED. NOTE: Forms referenced are available from the agency.]

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 26-1982(Temp), f. & ef. 12-3-82; MHD 9-1983, f. & ef. 6-7-83; MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0010, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 5-2011(Temp), f. & cert. ef. 2-7-11 thru 8-1-11

411-345-0100

Program Management

(1) NONDISCRIMINATION. The service must comply with all applicable state and federal statutes, rules, and regulations in regard to nondiscrimination in employment practices.

(2) PROHIBITION AGAINST RETALIATION. A community program or service provider may not retaliate against any staff that reports in good faith suspected abuse or retaliate against the individual with respect to any report. An accused person may not self-report solely for the purpose of claiming retaliation.

(a) Any community facility, community program, or person that retaliates against any person because of a report of suspected abuse or neglect shall be liable according to ORS 430.755, in a private action to that person for actual damages and, in addition, shall be subject to a penalty up to $1000, notwithstanding any other remedy provided by law.

(b) Any adverse action is evidence of retaliation if taken within 90 days of a report of abuse. Adverse action means only those actions arising solely from the filing of an abuse report. For purposes of this subsection, “adverse action” means any action taken by a community facility, community program, or person involved in a report against the person making the report or against the adult because of the report and includes but is not limited to:

(A) Discharge or transfer from the community program, except for clinical reasons;

(B) Discharge from or termination of employment;

(C) Demotion or reduction in remuneration for services; or

(D) Restriction or prohibition of access to the community program or the individuals served by the program.

(3) DOCUMENTATION REQUIREMENTS. All entries required by these rules, unless stated otherwise, must:

(a) Be prepared at the time, or immediately following the event being recorded;

(b) Be accurate and contain no willful falsifications;

(c) Be legible, dated, and signed by the person making the entry; and

(d) Be maintained for no less than five years.

(4) PROVIDER SERVICE PAYMENT LIMITATION.

(a) Effective February 1, 2010, monthly service rates, as authorized in Division payment and reporting systems for individuals enrolled in employment and alternatives to employment services and paid to certified providers for delivering employment or alternatives to employment services as described in these rules, shall be limited to a maximum of $1,800 per month.

(b) An exception to the provider service payment limitation, only for costs of directly supporting the individual served, may be granted by the Division if documentation supports the following criteria are met:

(A) The individual has a current behavior or health condition, as well as a documented history of such, posing a risk to the individual’s health and welfare or that of others; AND

(B) The individual has a current employment and alternatives to employment service rate and ISP requiring at least 1:1 staffing for purposes of meeting behavioral or medical support needs; AND

(C) Steps have been taken to address the existing behavior or condition within the $1,800 cap and there is continued risk to health and safety of self or others, regardless of setting.

(c) Special conditions shall be required in the provider contract. The Division or the Division’s designee shall monitor services to assure their delivery and the continued need for additional funds.

(5) INDEPENDENCE, PRODUCTIVITY, AND INTEGRATION. As stated in ORS 427.007 the service must have a written policy that states that each individual’s ISP is developed to meet each of the following:

(a) Employment and activities that address each individual’s level of independence;

(b) Employment and activities that address each individual’s productivity; and

(c) Employment and activities that address each individual’s integration into the local community.

(6) DISSOLUTION OF SERVICE. Prior to the dissolution of a service, a representative of the governing body or owner of the service must notify the Department in writing 30 days in advance and make appropriate arrangements for the transfer of individual records.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 26-1982(Temp), f. & ef. 12-3-82; MHD 9-1983, f. & ef. 6-7-83; MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0045, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 12-2010, f. 6-30-10, cert. ef. 7-1-10; SPD 5-2011(Temp), f. & cert. ef. 2-7-11 thru 8-1-11

411-345-0260

Health and Safety: Physical Environment

(1) COMMUNITY BASED SERVICES. All supported employment and community based services must ensure that the site has no known health or safety hazards in its immediate environment and that individuals are trained to avoid recognizable hazards.

(2) OWNED, LEASED, OR RENTED BUILDINGS AND PROPERTY. The service must assure that at least once every five years, a health and safety inspection is conducted.

(a) The inspection must cover all areas and buildings where services are delivered to individuals, administrative offices, and storage areas.

(b) The inspection may be performed by:

(A) Oregon Occupational Safety and Health Division;

(B) The service’s workers compensation insurance carrier; or

(C) An appropriate expert such as a licensed safety engineer or consultant as approved the Department; and

(D) The Oregon Health Department, when necessary.

(c) The inspection must cover:

(A) Hazardous material handling and storage;

(B) Machinery and equipment used by the service;

(C) Safety equipment;

(D) Physical environment; and

(E) Food handling, when necessary.

(d) The documented results of the inspection, including recommended modifications or changes, and documentation of any resulting action taken must be kept by the provider for five years.

(3) FIRE AND LIFE SAFETY INSPECTIONS FOR OWNED, LEASED, OR RENTED BUILDINGS AND PROPERTY. The service provider must ensure that each service site has annual fire and life safety inspections performed by the local fire authority or a Deputy State Fire Marshal. The documented results of the inspection, including documentation of recommended modifications or changes, and documentation of any resulting action taken must be kept by the provider for five years.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0125, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 5-2011(Temp), f. & cert. ef. 2-7-11 thru 8-1-11

 

Rule Caption: Foster Homes for Children with Developmental Disabilities.

Adm. Order No.: SPD 6-2011(Temp)

Filed with Sec. of State: 2-10-2011

Certified to be Effective: 2-10-11 thru 8-1-11

Notice Publication Date:

Rules Amended: 411-346-0110, 411-346-0150, 411-346-0160, 411-346-0165, 411-346-0190, 411-346-0200, 411-346-0220

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 rules relating to foster homes for children with developmental disabilities (CFH-DD) in OAR chapter 411, division 346 to change the annual certification period to two years. Language associated with the certification timeframe and provider expectations for chimney inspection, emergency preparedness, and inactive referral status have also been changed to comply with the two year cycle.

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

411-346-0110

Definitions

(1) “Abuse” means:

(a) Abuse of a child under the age of 18 as defined in ORS 419B.005; and

(b) Abuse of an adult as defined in OAR 407-045-0260 when an individual between the ages of 18 and 21 resides in a certified child foster home.

(2) “Alternate Caregiver” means any person 18 and older responsible for the care or supervision of a child in foster care.

(3) “Alternative Educational Plan (AEP)” means any school plan that does not occur within the physical school setting.

(4) “Appeal” means the process for a contested hearing under ORS chapter 183 that the foster provider may use to petition the suspension, denial, non-renewal, or revocation of their certificate or application.

(5) “Applicant” means a person who wants to become a child foster provider, lives at the residence where a child in foster care shall live, and is applying for a child foster home certificate or is renewing a child foster home certificate.

(6) “Assistant Director” means the assistant director of the Division, or that person’s designee.

(7) “Aversive Stimuli” means the use of any natural or chemical product to alter a child’s behavior such as the use of hot sauce or soap in the mouth and spraying ammonia or lemon water in the face of a child. Psychotropic medications are not considered aversive stimuli.

(8) “Behavior Supports” means a positive training plan used by the foster provider and alternate caregivers to help a child in foster care develop the self control and self direction necessary to assume responsibilities, make daily living decisions, and learn to conduct themselves in a manner that is socially acceptable.

(9) “Case Plan” means the goal-oriented, time-limited, individualized plan of action for a child and the child’s family developed by the child’s family and the Department’s Children, Adults, and Families Division for promotion of the child’s safety, permanency, and well being.

(10) “Case Worker” means an employee of the Department’s Children, Adults, and Families Division.

(11) “Certificate” means a document issued by the Division that notes approval to operate a child foster home for a period not to exceed two years.

(12) “Certifier” or “Certifying Agency” means the Division, Community Developmental Disability Program, or an agency approved by the Division who is authorized to gather required documentation to issue or maintain a child foster home certificate.

(13) “Child” means:

(a) An individual under the age of 18 who has a provisional eligibility determination of developmental disability by the Community Developmental Disability Program; or

(b) A young adult age 18 through 21 who is remaining in the same foster home for the purpose of completing their Individualized Education Plan, based on their Individual Support Plan team recommendation and an approved certification variance.

(14) “Child Foster Home (CFH)” means a home certified by the Division that is maintained and lived in by the person named on the foster home certificate.

(15) “Child Foster Home Contract” means an agreement between a provider and the Department that describes the responsibility of the foster care provider and the Department.

(16) “Child Placing Agency” means the Department, Community Developmental Disability Program, or the Oregon Youth Authority.

(17) “Commercial Basis” means providing and receiving compensation for the temporary care of individuals not identified as members of the household.

(18) “Community Developmental Disability Program (CDDP)” means an entity that is responsible for planning and delivery of services for individuals with developmental disabilities in a specific geographic service area of the state operated by or under a contract with the Division or a local mental health authority.

(19) “Denial” means the refusal of the certifying agency to issue a certificate of approval to operate a child foster home because the certifying agency has determined that the home or the applicant is not in compliance with one or more of these rules.

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

(21) “Developmental Disability (DD)” means a disability that originates in the developmental years, that is likely to continue, and significantly impacts adaptive behavior as diagnosed and measured by a qualified professional. Developmental disabilities include mental retardation, autism, cerebral palsy, epilepsy, or other neurological disabling conditions that require training or support similar to that required by individuals with mental retardation, and the disability:

(a) Originates before the individual reaches the age of 22 years, except that in the case of mental retardation, the condition must be manifested before the age of 18;

(b) Originates and directly affects the brain and has continued, or must be expected to continue, indefinitely;

(c) Constitutes a significant impairment in adaptive behavior; and

(d) Is not primarily attributed to a mental or emotional disorder, sensory impairment, substance abuse, personality disorder, learning disability, or Attention Deficit Hyperactivity Disorder.

(22) “DHS-CW” means the child welfare program area within the Department’s Children, Adults, and Families Division.

(23) “Direct Nursing Services” means the provision of individual-specific advice, plans, or interventions, based on nursing process as outlined by the Oregon State Board of Nursing, by a nurse at the home or facility. Direct nursing service differs from administrative nursing services. Administrative nursing services include non-individual-specific services, such as quality assurance reviews, authoring health related agency policies and procedures, or providing general training for the foster provider or alternate caregivers.

(24) “Discipline” for the purpose of these rules, discipline is synonymous with behavior supports.

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

(26) “Domestic Animals” mean any various animals domesticated so as to live and breed in a tame condition. Examples of domestic animals are dogs, cats, and domesticated farm stock.

(27) “Educational Surrogate” means a person who acts in place of a parent in safeguarding a child’s rights in the special education decision-making process:

(a) When the parent cannot be identified or located after reasonable efforts;

(b) When there is reasonable cause to believe that the child has a disability and is a ward of the state; or

(c) At the request of a parent or adult student.

(28) “Emergency Certificate” means a foster home certificate issued for 30 days.

(29) “Foster Care” means a child is placed away from their parent or guardian in a certified child foster home.

(30) “Foster Provider” means the certified care provider who resides at the address listed on the foster home certificate. For the purpose of these rules, “foster provider” is synonymous with child foster parent or relative caregiver and is considered a private agency for purposes of mandatory reporting of abuse.

(31) “Founded Reports” means the Department’s Children, Adults, and Families Division or Law Enforcement Authority (LEA) determination, based on the evidence, that there is reasonable cause to believe that conduct in violation of the child abuse statutes or rules has occurred and such conduct is attributable to the person alleged to have engaged in the conduct.

(32) “Guardian” means a parent for individuals less than 18 years of age or a person or agency appointed and authorized by an Oregon court to make decisions about services for an individual in foster care.

(33) “Health Care Provider” means a person or health care facility licensed, certified, or otherwise authorized or permitted by Oregon law to administer health care in the ordinary course of business or practice of a profession.

(34) “Home Inspection” means an on-site, physical review of the applicant’s home to assure the applicant meets all health and safety requirements within these rules.

(35) “Home Study” means the assessment process used for the purpose of determining an applicant’s abilities to care for a child in need of foster care placement.

(36) “Incident Report” means a written report of any unusual incident involving the child in foster care.

(37) “Individualized Education Plan (IEP)” means a written plan of instructional goals and objectives in conference with the teacher, parent or guardian, student, and a representative of the school district.

(38) “Individual Support Plan (ISP)” means the written details of the supports, activities, and resources required to meet the health, safety, financial, and personal goals of the child in foster care. The Individual Support Plan is the child’s plan of care for Medicaid purposes.

(39) “Individual Support Plan (ISP) Team” means a team composed of:

(a) The child in foster care when appropriate;

(b) The foster provider;

(c) The guardian;

(d) The Community Developmental Disability Program services coordinator; and

(e) May include family or any other approved persons who are approved by the child and the child’s guardian to develop the Individual Support Plan.

(40) “Licensed Medical Professional” means a person who meets the following:

(a) Holds at least one of the following valid licensures or certifications:

(A) Physician licensed to practice in Oregon;

(B) Nurse practitioner certified by the Oregon State Board of Nursing under ORS 678.375; or

(C) Physician’s assistant licensed to practice in Oregon; and

(b) Whose training, experience, and competence demonstrate expertise in children’s mental health, the ability to conduct a mental health assessment, and provide psychotropic medication management for a child in foster care.

(41) “Mandatory Reporter” means any public or private official who:

(a) For the purposes of this rule, is a foster provider, staff, or volunteer working with individuals birth to 17 years of age, and comes in contact with and has reasonable cause to believe a child has suffered abuse, or comes in contact with any person whom the official has reasonable cause to believe abused a child, regardless of whether or not the knowledge of the abuse was gained in the reporter’s official capacity. Nothing contained in ORS 40.225 to 40.295 shall affect the duty to report imposed by this section, except that a psychiatrist, psychologist, clergyman, attorney, or guardian ad litem appointed under ORS 419B.231 shall not be required to report such information communicated by a person if the communication is privileged under ORS 40.225 to 40.295.

(b) For the purposes of this rule, is a foster provider, staff, or volunteer working with individuals 18 years and older, and while acting in an official capacity, comes in contact with and has reasonable cause to believe an adult with developmental disabilities has suffered abuse, or comes in contact with any person whom the official has reasonable cause to believe abused an adult with developmental disabilities. Pursuant to ORS 430.765(2) psychiatrists, psychologists, clergy, and attorneys are not mandatory reporters with regard to information received through communications that are privileged under ORS 40.225 to 40.295.

(42) “Mechanical Restraint” means any mechanical device, material, object, or equipment that is attached or adjacent to an individual’s body that the individual cannot easily remove or easily negotiate around that restricts freedom of movement or access to the individual’s body.

(43) “Member of the Household” means any adults and children living in the home, including any employees or volunteers assisting in the care provided to a child placed in the home. For the purpose of these rules, a child in foster care is not considered a member of the household.

(44) “Mental Health Assessment” means the determination of a child’s need for mental health services by interviewing the child and obtaining all pertinent biopsychosocial information, as identified by the individual, family, and collateral sources that:

(a) Addresses the current complaint or condition presented by the child;

(b) Determines a diagnosis; and

(c) Provides treatment direction and individualized services and supports.

(45) “Misuse of Funds” includes but is not limited to providers or their staff:

(a) Borrowing from or loaning money to a child in foster care;

(b) Witnessing a will in which the provider or a staff is a beneficiary;

(c) Adding the provider’s name to an individual’s bank account or other titles for personal property without approval of the individual, when of age to give legal consent, or the individual’s legal representative and authorization of the Individual Support Plan team;

(d) Inappropriately expending or theft of an individual’s personal funds;

(e) Using an individual’s personal funds for the provider’s or staff’s own benefit; or

(f) Commingling an individual’s funds with provider or another individual’s funds.

(46) “Monitoring” means the observation by the Division, or designee, of a certified child foster home to determine continuing compliance with these rules.

(47) “Nurse” means a person who holds a current license from the Oregon Board of Nursing as a registered nurse (RN) or licensed practical nurse (LPN).

(48) “Nursing Care Plan” means a plan of care developed by a registered nurse that describes the medical, nursing, psychosocial, and other needs of the individual and how those needs shall be met. The Nursing Care Plan includes which tasks shall be taught or delegated to the foster provider and alternate caregivers.

(49) “Occupant” means any person having official residence in a certified child foster home.

(50) “Oregon Intervention System (OIS)” means a system of providing training to people who work with designated individuals to intervene physically or non-physically to keep individuals from harming self or others. The Oregon Intervention System is based on a proactive approach that includes methods of effective evasion, deflection, and escape from holding.

(51) “Oregon Youth Authority (OYA)” means an agency that has been given commitment and supervision responsibilities over those youth offenders, by order of the juvenile court under ORS 137.124 or other statute, until the time that a lawful release authority authorizes release or terminates the commitment or placement.

(52) “Permanent Foster Care” means a long term contractual agreement between the foster parent and the Department’s Children, Adults, and Families Division, approved by the juvenile court that specifies the responsibilities and authority of the foster parent and the commitment by the permanent foster parent to raise a child until the age of majority or until the court determines that permanent foster care is no longer the appropriate plan for the child.

(53) “Protected Health Information” means any oral or written health information that identifies the child and relates to the child’s past, present, or future physical or mental health condition, health care treatment, or payment for health care treatment.

(54) “Protective Physical Intervention” means:

(a) Any manual physical holding of or contact with a child that restricts the child’s freedom of movement; and

(b) The use of any physical action to maintain the health and safety of a child or others during a potentially dangerous situation or event.

(55) “Psychotropic Medication” means medication the prescribed intent of which is to affect or alter thought processes, mood, or behavior including but not limited to anti-psychotic, antidepressant, anxiolytic (anti-anxiety), and behavior medications. The classification of a medication depends upon its stated, intended effect when prescribed.

(56) “Qualified Mental Health Professional” means a person who meets both of the following:

(a) Holds at least one of the following educational degrees:

(A) Graduate degree in psychology;

(B) Bachelor’s degree in nursing and licensed in Oregon;

(C) Graduate degree in social work;

(D) Graduate degree in a behavioral science field;

(E) Graduate degree in recreational, art, or music therapy;

(F) Bachelor’s degree in occupational therapy and licensed in Oregon; and

(b) Whose education and experience demonstrates the competencies to:

(A) Identify precipitating events;

(B) Gather histories of mental and physical disabilities, alcohol and drug use, past mental health services, and criminal justice contacts;

(C) Assess family, social, and work relationships;

(D) Conduct a mental status examination;

(E) Document a multiaxial DSM diagnosis;

(F) Write and supervise a Treatment Plan;

(G) Conduct a mental health assessment; and

(H) Provide individual, family, or group therapy within the scope of his or her practice.

(57) “Respite” means intermittent services provided on a periodic basis, but not more than 14 consecutive days, for the relief of, or due to the temporary absence of, persons normally providing the supports to individuals unable to care for themselves.

(58) “Revocation” means the action taken by the certifying agency to rescind a child foster home certificate of approval after determining that the child foster home is not in compliance with one or more of these rules.

(59) “Services Coordinator” means an employee of the Community Developmental Disability Program or the Division, who is selected to plan, procure, coordinate, monitor Individual Support Plan services, and to act as a proponent for individuals with developmental disabilities.

(60) “Significant Medical Needs” means but is not limited to total assistance required for all activities of daily living such as access to food or fluids, daily hygiene which is not attributable to the child’s chronological age, and frequent medical interventions required by the care plan for health and safety of the child.

(61) “Specialized Diet” means that the amount, type of ingredients, or selection of food or drink items is limited, restricted, or otherwise regulated under a physician’s order. Examples include but are not limited to low calorie, high fiber, diabetic, low salt, lactose free, or low fat diets.

(62) “Substantiated” means an abuse investigation has been completed by the Department or the Department’s designee and the preponderance of the evidence establishes the abuse occurred.

(63) “Suspension of Certificate” means a temporary withdrawal of the approval to operate a child foster home after the certifying agency determines that the child foster home is not in compliance with one or more of these rules.

(64) “These Rules” mean the rules in OAR chapter 411, division 346.

(65) “Unauthorized Absence” means any length of time when a child is absent from the foster home without prior approval as specified on the Individual Support Plan.

(66) “Unusual Incident” means incidents involving serious illness or accidents, death of an individual, injury or illness of an individual requiring inpatient or emergency hospitalization, suicide attempts, a fire requiring the services of a fire department, an act of physical aggression, or any incident requiring an abuse investigation.

(67) “Urgent Medical Need” means the onset of psychiatric symptoms requiring attention within 48 hours to prevent a serious deterioration in a child’s mental or physical condition.

(68) “Variance” means a temporary exemption from a regulation or provision of these rules that may be granted by the Division upon written application by the certifying agency.

(69) “Volunteer” means any person assisting in a child foster home without pay to support the care provided to a child placed in the child foster home.

Stat. Auth.: ORS 409.050, 410.070, 430.215, & 443.835

Stats. Implemented: ORS 443.830 & 443.835

Hist.: MHD 15-2000(Temp), f. & cert. ef. 11-30-00 thru 5-28-01; MHD 3-2001, f. 5-25-01, cert. ef. 5-28-01; Renumbered from 309-046-0110, SPD 34-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 10-2007, f. 6-27-07, cert. ef. 7-5-07; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 7-2010, f. 6-29-10, cert. ef. 7-1-10; SDP 6-2011(Temp), f. & cert. ef. 2-10-11 thru 8-1-11

411-346-0150

General Requirements for Certification

(1) The applicant or foster provider must participate in certification and certification renewal studies and in the ongoing monitoring of their homes.

(2) The applicant or foster provider must give the information required by the Division to verify compliance with all applicable rules, including change of address and change of number of persons in the household such as relatives, employees, or volunteers.

(3) The applicant seeking certification from the Division must complete the Division application forms. When two or more adults living in the home share foster provider responsibilities to any degree, they must be listed on the application as applicant and co-applicant.

(4) The applicant must disclose each state or territory they have lived in the last five years and for a longer period if requested by the certifier. The disclosure must include the address, city, state, and zip code of previous residences.

(5) Information provided by the applicants must include:

(a) Names and addresses of any agencies in the United States where any occupant of the home has been licensed or certified to provide care to children or adults and the status of such license or certification. This may include but is not limited to licenses or certificates for residential care, nurse, nurse’s aide, and foster care;

(b) Proposed number, gender, age range, disability, and support needs of children to be served in foster care;

(c) School reports for any child of school age living in the home at the time of initial application. School reports for any child of school age living in the home within the last year may also be required;

(d) Names and addresses of at least four persons, three of whom are unrelated, who have known each applicant for two years or more and who can attest to their character and ability to care for children. The Division may contact schools, employers, adult children, and other sources as references;

(e) Reports of all criminal charges, arrests or convictions, the dates of offenses, and the resolution of those charges for all employees or volunteers and persons living in the home. If the applicant’s minor children shall be living in the home, the applicants must also list reports of all criminal or juvenile delinquency charges, arrests or convictions, the dates of offenses, and the resolution of those charges;

(f) Founded reports of child abuse or substantiated abuse, with dates, locations, and resolutions of those reports for all persons living in the home, as well as all applicant or provider employees, independent contractors, and volunteers;

(g) Demonstration, upon initial certification, of successful completion of 15 hours of pre-service training.

(h) Demonstration, upon initial certification, of income sufficient to meet the needs and to ensure the stability and financial security of the family independent of the foster care payment;

(i) All child support obligations in any state, whether the obligor is current with payments or in arrears, and whether any applicant’s or foster provider’s wages are being attached or garnished for any reason;

(j) A physician’s statement, on a form provided by the Division, that each applicant is physically and mentally capable of providing care;

(k) A floor plan of the house showing the location of:

(A) Rooms, indicating the bedrooms for the child in foster care, caregiver, and other occupants of the home;

(B) Windows;

(C) Exit doors;

(D) Smoke detectors and fire extinguishers; and

(E) Wheel chair ramps, if applicable; and

(l) A diagram of the house and property showing safety devices for fire places, wood stoves, water features, outside structures, and fencing.

(6) Falsification or omission of any of the information for certification may be grounds for denial or revocation of the child foster home certification.

(7) Applicants must be at least 21 years of age. Applicants who are “Indian,” as defined in the Indian Child Welfare Act, may be 18 years of age or older, if an Indian child to be placed is in the legal custody of DHS-CW.

(8) Applicants, providers, alternate caregivers, providers’ employees or volunteers, other occupants in the home who are 18 years or older, and other adults having regular contact in the home with a child in foster care or any subject individual as described in OAR 407-007-0200 to 407-007-0370 must consent to a criminal records check by the Department, in accordance with OAR 407-007-0200 to 407-007-0370 (Criminal Records Check Rules) and under ORS 181.534. The Division may require a criminal records check on members of the household under 18 if there is reason to believe that a member may pose a risk to a child placed in the home. All persons subject to a criminal records check are required to complete an Oregon criminal records check and a national criminal records check, as described in OAR 407-007-0200 to 407-007-0370, including the use of fingerprint cards.

(a) Effective July 28, 2009, public funds may not be used to support, in whole or in part, a person described in section (8) of this rule in any capacity who has been convicted of any of the disqualifying crimes listed in OAR 407-007-0275.

(b) A person does not meet 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) Section (8)(a) and (b) of this rule do not apply to employees hired prior to July 28, 2009 that remain in the current position for which the employee was hired.

(d) Any person as described in section (8) of this rule must self-report any potentially disqualifying condition as described in OAR 407-007-0280 and OAR 407-007-0290. The person must notify the Department or designee within 24 hours.

(9) The Division may not issue or renew a certificate if an applicant or member of the household:

(a) Has, after completing the criminal records check required by the Division, a fitness determination of “denied.”

(b) Has, at any time, been convicted of a felony in Oregon or any jurisdiction that involves:

(A) Child abuse or neglect;

(B) Spousal abuse;

(C) Criminal activity against children, including child pornography; or

(D) Rape, sexual assault, or homicide.

(c) Has, within the past five years from the date the criminal records check was signed been convicted of a felony in Oregon or any jurisdiction that involves:

(A) Physical assault or battery (other than against a spouse or child); or

(B) Any drug-related offense.

(d) Has been found to have abused or neglected a child or adult as defined in ORS 419B.005 or as listed in OAR 407-045-0260.

(e) Has, within the past five years from the date the child foster home application was signed, been found to have abused or neglected a child or adult in the United States as defined by that jurisdiction or any other jurisdiction.

(10) The applicant or foster provider may request to withdraw their application any time during the certification process by notifying the certifier in writing. Written documentation by the certifier of verbal notice may substitute for written notification.

(11) The Division may not issue or renew a certificate for a minimum of five years if the applicant is found to have a license or certificate to provide care to children or adults, suspended, revoked, or not renewed by other than voluntary request. This shall be grounds for suspension and revocation of the certificate.

(12) The Division may not issue or renew a certificate based on an evaluation of any negative references, school reports, physician’s statement, or previous licensing or certification reports from other agencies or states.

(13) A Department employee may be a foster provider, or an employee of an agency that contracts with the Department as a foster provider, if the employee’s position with the Department does not influence referral, regulation, or funding of such activities. Prior to engaging in such activity, the employee must obtain written approval from the Assistant Director of the Division. The written approval must be on file with the Assistant Director of the Division and in the Division’s certification file.

(14) An application is incomplete and void unless all supporting materials are submitted to the Division within 90 days from the date of the application.

(15) An application may not be considered complete until all required information is received and verified by the Division. Within 60 days upon receipt of the completed application, a decision shall be made by the Division to approve or deny certification.

(16) The Division shall determine compliance with these rules based on receipt of the completed application material, an investigation of information submitted, an inspection of the home, a completed home study, and a personal interview with the provider. A certificate issued on or after February 1, 2010 shall be valid for a maximum of two years, unless revoked or suspended.

(17) The Division may attach conditions to the certificate that limit, restrict, or specify other criteria for operation of the child foster home.

(18) A condition may be attached to the certificate that limits the provider to the care of a specific child. No other referrals shall be made to a provider with this limitation.

(19) A child foster home certificate is not transferable or applicable to any location or persons other than those specified on the certificate.

(20) The foster provider who cares for a child funded by the Department must enter into a contract with the Department and follow the Department rules governing reimbursement for services and refunds.

(21) The foster provider may not be the parent or legal guardian of any child placed in their home for foster care services funded by the Department.

(22) If the applicant or foster provider intends to provide care for a child with significant medical needs then at least one provider or applicant must have the following:

(a) An equivalent of one year of full-time experience in providing direct care to individuals;

(b) Health care professional qualifications.

(A) Such as a registered nurse (RN) or licensed practical nurse (LPN); or

(B) Has the equivalent of two additional years full-time experience providing care and support to an individual who has a medical condition that is serious and could be life-threatening;

(c) Copies of all current health related license or certificates and provide those documents to the certifying agent;

(d) Current certification in First Aid and Cardiopulmonary Resuscitation (CPR). The CPR training must be done by a recognized training agency and the CPR certificate must be appropriate to the ages of the child served in the foster home;

(e) Current satisfactory references from at least two medical professionals, such as a physician and registered nurse, who have direct knowledge of the applicant’s ability and past experiences as a caregiver. The medical professional references serve as two of the four references in section (5)(d) of this rule; and

(f) Positive written recommendation from the Division’s Medically Fragile Children’s Unit (MFCU) if the provider or applicant has provided services through the program or if the provider or applicant has historically received services through the program for a child in their family home or foster home.

(23) A foster provider may not accept a child with significant medical needs unless an initial care plan addressing the health and safety supports is in place at the time of placement.

Stat. Auth.: ORS 409.050, 410.070, 430.215, & 443.835

Stats. Implemented: ORS 443.830 & 443.835

Hist.: MHD 15-2000(Temp), f. & cert. ef. 11-30-00 thru 5-28-01; MHD 3-2001, f. 5-25-01, cert. ef. 5-28-01; Renumbered from 309-046-0150, SPD 34-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 10-2007, f. 6-27-07, cert. ef. 7-5-07; 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 7-2010, f. 6-29-10, cert. ef. 7-1-10; SDP 6-2011(Temp), f. & cert. ef. 2-10-11 thru 8-1-11

411-346-0160

Renewal of Certificate

(1) At least 90 days prior to the expiration of a certificate, the Division shall send a reminder notice and application for renewal to the currently certified provider. Submittal of a renewal application prior to the expiration date keeps the certificate in effect until the Division takes action. If the renewal application is not submitted prior to the expiration date, the child foster home shall be treated as an uncertified home.

(2) The certification renewal process includes the renewal application and the same supporting documentation as required for a new certification. With the discretion of the certifier, a financial statement, physician statement, and floor plan may not be required.

(3) Copies of the services coordinator’s monitoring check list or recommendations from the services coordinators who have had children in the home within the last year may be requested at time of certification renewal.

(4) School reports may not be required if the Division or the certifier reasonably assumes this information has not changed or is not necessary.

(5) The Division or the certifier may investigate any information in the renewal application and shall conduct a home inspection.

(6) The provider shall be given a copy of the inspection form documenting any deficiencies and a time frame to correct deficiencies. Deficiencies must be corrected no longer than 60 days from the date of inspection. If documented deficiencies are not corrected within the time frame specified, the renewal application shall be denied.

(7) Applicants, providers, providers’ substitute caregivers, employees, volunteers, and any other occupants in the home 18 years of age and older must submit to an Oregon criminal records check and must continue to meet all certification standards as outlined in these rules.

(8) Each foster provider must provide documentation of a minimum of 10 hours of Division approved training per year prior to the renewal of the certificate. A mutually agreed upon training plan may be part of the re-certification process.

(9) When serving children with significant medical needs, the foster provider must have a minimum of six of the ten hours of annual training requirements in specific medical training beyond First Aid and CPR. The CPR training must be done by a recognized training agency and the CPR certificate must be appropriate to the ages of the children served in the foster home.

Stat. Auth.: ORS 409.050, 410.070, 430.215, & 443.835

Stats. Implemented: ORS 443.830 & 443.835

Hist.: MHD 15-2000(Temp), f. & cert. ef. 11-30-00 thru 5-28-01; MHD 3-2001, f. 5-25-01, cert. ef. 5-28-01; Renumbered from 309-046-0160, SPD 34-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 10-2007, f. 6-27-07, cert. ef. 7-5-07; SPD 7-2010, f. 6-29-10, cert. ef. 7-1-10; SDP 6-2011(Temp), f. & cert. ef. 2-10-11 thru 8-1-11

411-346-0165

Emergency Certification

(1) An emergency certificate may be issued by the Division for up to 30 days, provided the following conditions are met:

(a) An Oregon criminal records check indicates no immediate need for fingerprinting for all persons living in the home;

(b) A DHS-CW background check identifies no founded reports of child abuse committed by persons living in the home;

(c) Applicant has no previous revocations or suspensions of any license or certificate by any issuing agency for a foster home, group home, or any other care or support services;

(d) A review of support enforcement obligations and public assistance cases identifies no substantial financial concerns;

(e) An application and two references are submitted;

(f) An abbreviated home study is done; and

(g) A satisfactory home inspection and a Health and Safety Checklist are completed.

(2) When a child with significant medical needs shall be living in the foster home, the following additional requirements must be met before an emergency certificate may be issued:

(a) Current satisfactory references from at least two medical professionals, such as a physician and registered nurse, who have direct knowledge of the applicant’s ability and past experiences as a caregiver; AND

(b) A positive written recommendation from the Division’s Medically Fragile Children’s Unit (MFCU) if the provider or applicant has provided services through the program or has historically received services through the program for a child in their family home or foster home; AND

(c) Current certification in First Aid and CPR. The CPR training must be done by a recognized training agency and the CPR certificate must be appropriate to the ages of the children served in the foster home; AND

(d) Copies of all current medical related licenses or certificates must be provided to the certifier; AND

(e) Six hours of medical training beyond CPR and First Aid training as appropriate to the ages of the children served in the foster home; OR

(f) Licensed as a registered nurse, licensed practical nurse, emergency medical technician, nurse practitioner, or physician’s assistant.

(3) Emergency certificates may be issued if the renewal process is incomplete at the time of the renewal.

Stat. Auth.: ORS 409.050, 410.070, 430.215, & 443.835

Stats. Implemented: ORS 443.830 & 443.835

Hist.: SPD 34-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 10-2007, f. 6-27-07, cert. ef. 7-5-07; SPD 7-2010, f. 6-29-10, cert. ef. 7-1-10; SDP 6-2011(Temp), f. & cert. ef. 2-10-11 thru 8-1-11

411-346-0190

Standards and Practices for Care and Services

(1) The foster provider must:

(a) Provide structure and daily activities designed to promote the physical, social, intellectual, cultural, spiritual, and emotional development of the child in their home.

(b) Provide playthings and activities in the foster home, including games, recreational and educational materials, and books appropriate to the chronological age, culture, and developmental level of the child.

(c) In accordance with the ISP and if applicable as defined in the DHS-CW case plan, encourage the child to participate in community activities with family, friends, and on their own when appropriate.

(d) Promote the child’s independence and self-sufficiency by encouraging and assisting the child to develop new skills and perform age-appropriate tasks.

(e) In accordance with the ISP and if applicable as defined in the DHS-CW case plan, ask the child in foster care to participate in household chores appropriate to the child’s age and ability that commensurate with those expected of the provider’s own children.

(f) Provide the child with reasonable access to a telephone and to writing materials.

(g) In accordance with the ISP and if applicable as defined in the DHS-CW Case Plan, permit and encourage the child to have visits with family and friends.

(h) Allow regular contacts and private visits or phone calls with the child’s CDDP services coordinator and if applicable the DHS-CW case worker.

(i) Not allow a child in foster care to baby-sit in the foster home or elsewhere without permission of the child’s CDDP services coordinator and the guardian.

(2) RELIGIOUS, ETHNIC, AND CULTURAL HERITAGE.

(a) The foster provider must recognize, encourage, and support the religious beliefs, ethnic heritage, cultural identity, and language of a child and the child’s family.

(b) In accordance with the ISP and guardian preferences, the foster provider must participate with the ISP team to arrange transportation and appropriate supervision during religious services or ethnic events for a child whose beliefs and practices are different from those of the provider.

(c) The foster provider may not require a child to participate in religious activities or ethnic events contrary to the child’s beliefs.

(3) EDUCATION. The foster provider:

(a) Must enroll each child of school age in public school, within five school days of the placement, and arrange for transportation.

(b) Must comply with any Alternative Educational Plan described in the child’s IEP.

(c) Must be actively involved in the child’s school program and must participate in the development of the child’s IEP. The foster provider may apply to be the child’s educational surrogate if requested by the parent or guardian.

(d) Must consult with school personnel when there are issues with the child in school and report to the guardian and CDDP services coordinator any serious situations that may require Department involvement.

(e) Must support the child in his or her school or educational placement.

(f) Must assure the child regularly attends school or educational placement and monitor the child’s educational progress.

(g) May sign consent to the following school related activities:

(A) School field trips within the state of Oregon;

(B) Routine social events;

(C) Sporting events;

(D) Cultural events; and

(E) School pictures for personal use only unless prohibited by the court or legal guardian.

(4) ALTERNATE CAREGIVERS.

(a) The foster provider must arrange for safe and responsible alternate care.

(b) A Child Care Plan for a child in foster care must be approved by the Division, the CDDP, or DHS-CW before it is implemented. When a child is cared for by a child care provider or child care center, the provider or center must be certified as required by the State Child Care Division (ORS 657A.280) or be a certified foster provider.

(c) The foster provider must have a Respite Plan approved by the certifier or the Division when using alternate caregivers.

(d) The foster provider must assure the alternate caregivers, consultants, and volunteers are:

(A) 18 years of age or older;

(B) Capable of assuming foster care responsibilities;

(C) Present in the home;

(D) Physically and mentally capable to perform the duties of the foster provider as described in these rules;

(E) Cleared by a criminal records check as described in OAR 411-346-0150(8) including a DHS-CW background check;

(F) Able to communicate with the child, individuals, agencies providing care to the child, CDDP services coordinator, and appropriate others;

(G) Trained on fire safety and emergency procedures;

(H) Trained on the child’s ISP, Behavior Support Plan, and any related protocols and able to provide the care needed for the child;

(I) Trained on the required documentation for health, safety, and behavioral needs of the child;

(J) A licensed driver and with vehicle insurance in compliance with the Oregon DMV laws when transporting children by motorized vehicle; and

(K) Not be a person who requires care in a foster care or group home.

(e) When the foster provider uses an alternate caregiver and the child shall be staying at the alternate caregiver’s home, the foster provider must assure the alternate caregiver’s home meets the necessary health, safety, and environmental needs of the child.

(f) When the foster provider arranges for social activities of the child for less than 24 hours, including an overnight arrangement, the foster provider must assure that the person shall be responsible and capable of assuming child care responsibilities and be present at all times. The foster provider still maintains primary responsibility for the child.

(5) FOOD AND NUTRITION.

(a) The foster provider must offer three nutritious meals daily at times consistent with those in the community.

(A) Daily meals must include food from the four basic food groups, including fresh fruits and vegetables in season, unless otherwise specified in writing by a physician or physician assistant.

(B) There must be no more than a 14-hour span between the evening meal and breakfast unless snacks and liquids are served as supplements.

(C) Consideration must be given to cultural and ethnic background in food preparation.

(b) Any home canned food used must be processed according to current guidelines of Oregon State University extension services (http://extension.oregonstate.edu/fch/food-preservation).

(c) All food items must be used prior to the item’s expiration date.

(d) The foster provider must implement specialized diets only as prescribed in writing by the child’s physician or physician assistant.

(e) The foster provider must prepare and serve meals in the foster home where the child lives. Payment for meals eaten away from the foster home (e.g. restaurants) for the convenience of the foster provider is the responsibility of the foster provider.

(f) The foster provider, when serving milk, must only use pasteurized liquid or powdered milk for consumption by a child in foster care.

(g) A child who must be bottle-fed and cannot hold the bottle, or is 11 months or younger, must be held during bottle-feeding.

(6) CLOTHING AND PERSONAL BELONGINGS.

(a) The foster provider must assure that each child has his or her own clean, well-fitting, seasonal clothing appropriate to age, gender, culture, individual needs, and comparable to the community standards.

(b) A school-age child must participate in choosing their own clothing whenever possible.

(c) The foster provider must allow a child to bring and acquire appropriate personal belongings.

(d) The foster provider must assure that when a child leaves the child foster home, the child’s belongings including all personal funds, medications, and personal items remain with the child. This includes all items brought with the child and obtained while living in the home.

(7) BEHAVIOR SUPPORT AND DISCIPLINE PRACTICES.

(a) The foster provider must teach and discipline a child with respect, kindness, and understanding, using positive behavior management techniques. Unacceptable practices include but are not limited to:

(A) Physical force, spanking, or threat of physical force inflicted in any manner upon the child;

(B) Verbal abuse, including derogatory remarks about the child or the child’s family that undermine a child’s self-respect;

(C) Denial of food, clothing, or shelter;

(D) Denial of visits or contacts with family members, except when otherwise indicated in the ISP or if applicable the DHS-CW case plan;

(E) Assignment of extremely strenuous exercise or work;

(F) Threatened or unauthorized use of physical interventions;

(G) Threatened or unauthorized use of mechanical restraints;

(H) Punishment for bed-wetting or punishment related to toilet training;

(I) Delegating or permitting punishment of a child by another child;

(J) Threat of removal from the foster home as a punishment;

(K) Use of shower or aversive stimuli as punishment; and

(L) Group discipline for misbehavior of one child.

(b) The foster provider must set clear expectations, limits, and consequences of behavior in a non-punitive manner.

(c) If time-out separation from others is used to manage behavior, it must be included on the child’s ISP and the foster provider must provide it in an unlocked, lighted, well-ventilated room of at least 50 square feet. The ISP must include whether the child needs to be within hearing distance or within sight of an adult during the time-out. The time limit must take into consideration the child’s chronological age, emotional condition, and developmental level. Time-out is to be used for short duration and frequency as approved by ISP team.

(d) No child in foster care or other child in a foster home shall be subjected to physical abuse, sexual abuse, sexual exploitation, neglect, emotional abuse, mental injury, or threats of harm as defined in ORS 419B.005 and OAR 407-045-0260.

(e) BEHAVIOR SUPPORT PLAN (BSP). For a child who has demonstrated a serious threat to self, others, or property and for whom it has been decided a BSP is needed, the BSP must be developed with the approval of the ISP team.

(f) PROTECTIVE PHYSICAL INTERVENTION. A protective physical intervention must be used only for health and safety reasons and under the following conditions:

(A) As part of the child’s ISP team approved BSP.

(i) When protective physical intervention shall be employed as part of the BSP, the foster provider and alternate caregivers must complete OIS training prior to the implementation of the BSP.

(ii) The use of any modified OIS protective physical intervention must have approval from the OIS Steering Committee in writing prior to their implementation. Documentation of the approval must be maintained in the child’s records.

(B) As in a health-related protection prescribed by a physician or qualified health care provider, but only if absolutely necessary during the conduct of a specific medical or surgical procedure, or only if absolutely necessary for protection during the time that a medical condition exists.

(C) As an emergency measure if absolutely necessary to protect the child or others from immediate injury and only until the child is no longer an immediate threat to self or others.

(g) MECHANICAL RESTRAINT.

(A) The foster provider may not use mechanical restraints on a child in foster care other than car seat belts or normally acceptable infant safety products unless ordered by a physician or health care provider and with an agreement of the ISP team.

(B) The foster provider must maintain the original order in the child’s records and forward a copy to the CDDP services coordinator and guardian.

(h) DOCUMENTATION AND NOTIFICATION OF USE OF PROTECTIVE PHYSICAL INTERVENTION.

(A) The foster provider must document the use of all protective physical interventions or mechanical restraints in an incident report. A copy of the incident report must be provided to the CDDP services coordinator and guardian.

(B) If an approved protective physical intervention is used, the foster provider must send a copy of the incident report within five working days to the services coordinator and guardian.

(C) If an emergency or non ISP team approved protective physical intervention is used, the foster provider must send a copy of the incident report within 24 hours to the services coordinator and guardian. The foster provider must make verbal notification to the CDDP services coordinator and guardian no later than the next working day.

(D) The original incident report must be on file with the foster provider in the child’s records.

(E) The incident report must include:

(i) The name of the child to whom the protective physical intervention was applied;

(ii) The date, location, type, and duration of entire incident and protective physical intervention;

(iii) The name of the provider and witnesses or persons involved in applying the protective physical intervention;

(iv) The name and position of the person notified regarding the use of the protective physical intervention; and

(v) A description of the incident, including precipitating factors, preventive techniques applied, description of the environment, description of any physical injury resulting from the incident, and follow-up recommendations.

(8) MEDICAL AND DENTAL CARE. The foster provider must:

(a) Provide care and services, as appropriate to the child’s chronological age, developmental level, and condition of the child, and as identified in the ISP.

(b) Assure that physician or qualified health care provider orders and those of other licensed medical professionals are implemented as written.

(c) Inform the child’s physicians or qualified health care providers of current medications and changes in health status and if the child refuses care, treatments, or medications.

(d) Inform the guardian and CDDP services coordinator of any changes in the child’s health status except as otherwise indicated in the DHS-CW Permanent Foster Care contract agreement and as agreed upon in the child’s ISP.

(e) Obtain the necessary medical, dental, therapies, and other treatments of care including but not limited to:

(A) Making appointments;

(B) Arranging for or providing transportation to appointments; and

(C) Obtaining emergency medical care.

(f) Have prior consent from the guardian for medical treatment that is not routine, including surgery and anesthesia except in cases where a DHS-CW Permanent Foster Care contract agreement exists.

(g) Keep current medical records. The records must include, when applicable:

(A) Any history of physical, emotional, and medical problems, illnesses, or mental health status;

(B) Current orders for all medications, treatments, therapies, use of protective physical intervention, specialized diets, adaptive equipment, and any known food or medication allergies;

(C) Completed medication administration record (MAR) from previous months;

(D) Pertinent medical and behavioral information such as hospitalizations, accidents, immunization records including Hepatitis B status and previous TB tests, and incidents or injuries affecting the health, safety, or emotional well-being of the child;

(E) Documentation or other notations of guardian consent for medical treatment that is not routine including surgery and anesthesia;

(F) Record of medical appointments;

(G) Medical appointment follow-up reports provided to the foster provider; and

(H) Copies of previous mental health assessments, assessment updates including multi-axial DSM diagnosis and treatment recommendations, and progress records from mental health treatment services.

(h) Provide, when requested, copies of medical records and medication administration records to the child’s legal guardian, services coordinator, and DHS-CW caseworker.

(i) Provide copies, as applicable, of the medical records described in section (8)(g)(H) above to the licensed medical professional prior to the medical appointment or no later than the time of the appointment with the licensed medical professional.

(9) MEDICATIONS AND PHYSICIAN OR QUALIFIED HEALTH CARE PROVIDER ORDERS.

(a) There must be authorization by a physician or qualified health care provider in the child’s file prior to the usage of or implementation of any of the following:

(A) All prescription medications;

(B) Non prescription medications except over the counter topicals;

(C) Treatments other than basic first aid;

(D) Therapies and use of mechanical restraint as a health and safety related protection;

(E) Modified or specialized diets;

(F) Prescribed adaptive equipment; and

(G) Aids to physical functioning.

(b) The foster provider must have:

(A) A copy of an authorization in the format of a written order signed by a physician or a qualified health care provider; or

(B) Documentation of a telephone order by a physician or qualified health care provider with changes clearly documented on the MAR, including the name of the person giving the order, the date and time, and the name of the person receiving the telephone order; or

(C) A current pharmacist prescription or manufacturer’s label as specified by the physician’s order on file with the pharmacy.

(c) A provider or alternate caregiver must carry out orders as prescribed by a physician or a qualified health care provider. Changes may not be made without a physician or a qualified health care provider’s authorization.

(d) Each child’s medication, including refrigerated medication, must be clearly labeled with the pharmacist’s label, or in the manufacturer’s originally labeled container, and kept in a locked location, or stored in a manner that prevents access by children.

(e) Unused, outdated, or recalled medications may not be kept in the foster home and must be disposed of in a manner that shall prevent illegal diversion into the possession of people other than for which it was prescribed.

(f) The foster provider must keep a MAR for each child. The MAR must be kept for all medications administered by the foster provider or alternate caregiver to that child, including over the counter medications and medications ordered by physicians or qualified health care providers and administered as needed (PRN) for the child.

(g) The MAR must include:

(A) The name of the child in foster care;

(B) A transcription of the written physician’s or licensed health practitioner’s order including the brand or generic name of the medication, prescribed dosage, frequency, and method of administration;

(C) A transcription of the printed instructions from the package for topical medications and treatments without a physician’s order;

(D) Times and dates of administration or self-administration of the medication;

(E) Signature of the person administering the medication or the person monitoring the self-administration of the medication;

(F) Method of administration;

(G) An explanation of why a PRN medication was administered;

(H) Documented effectiveness of any PRN medication administration;

(I) An explanation of all medication administration or documentation irregularities; and

(J) Any known allergy or adverse drug reactions and procedures that maintain and protect the physical health of the child placed in the foster home.

(h) Any errors in the MAR must be corrected by circling the error and then writing on the back of the MAR what the error was and why.

(i) Treatments, medication, therapies, and specialized diets must be documented on the MAR when not used or applied according to the order.

(j) SELF-ADMINISTRATION OF MEDICATION. For any child who is self-administering medication, the foster provider must:

(A) Have documentation that a training program was initiated with approval of the child’s ISP team or that training for the child was unnecessary;

(B) Have a training program that provides for retraining when there is a change in dosage, medication, and time of delivery;

(C) Provide for an annual review, at a minimum as part of the ISP process, upon completion of the training program;

(D) Assure that the child is able to handle his or her own medication regime;

(E) Keep medications stored in a locked area inaccessible to others; and

(F) Maintain written documentation of all training in the child’s medical record.

(k) The foster provider may not use alternative medications intended to alter or affect mood or behavior, such as herbals or homeopathic remedies, without direction and supervision of a licensed medical professional.

(l) Any medication that is used with the intent to alter behavior of a child with a developmental disability must be documented on the ISP.

(m) BALANCING TEST. When a psychotropic medication is first prescribed and annually thereafter, the foster provider must obtain a signed balancing test from the prescribing health care provider using the Division’s Balancing Test Form. Foster providers must present the physician or health care provider with a full and clear description of the behavior and symptoms to be addressed as well as any side effects observed.

(n) PRN prescribed psychotropic medication is prohibited.

(o) A mental health assessment by a qualified mental health professional or licensed medical professional must be completed, except as noted in subsection (A) of this section, prior to the administration of a new medication for more than one psychotropic or any antipsychotic medication to a child in foster care.

(A) A mental health assessment is not required in the following situations:

(i) In a case of urgent medical need;

(ii) For a substitution of a current medication within the same class; or

(iii) A medication order given prior to a medical procedure; or

(B) When a mental health assessment is required, the foster provider:

(i) Must notify the DHS-CW caseworker when the child is in legal custody of DHS-CW worker; or

(ii) Shall arrange for a mental health assessment when the child is a voluntary care placement.

(C) The mental health assessment:

(i) Must have been completed within three months prior to the prescription; or

(ii) May be an update of a prior mental health assessment that focuses on a new or acute problem.

(D) Whenever possible, information from the mental health assessment must be communicated to the licensed medical professional prior to the issuance of a prescription for psychotropic medication.

(p) Within one business day after receiving a new prescription or knowledge of a new prescription for psychotropic medication for the child in foster care, the foster provider must notify:

(A) The child’s parent when the parent retains legal guardianship;

(B) The child’s family member or the person who has legal guardianship; or

(C) DHS-CW when DHS-CW is the legal guardian of the child; and

(D) The CDDP services coordinator.

(q) The notification from the foster provider to the legal guardian and the CDDP services coordinator must contain:

(A) The name of the prescribing physician, or qualified health care provider;

(B) The name of the medication;

(C) The dosage, any change of dosage or suspension, or discontinuation of the current psychotropic medication;

(D) The dosage administration schedule prescribed; and

(E) The reason the medication was prescribed.

(r) The foster provider must get a written informed consent prior to filling a prescription for any new psychotropic medication except in a case of urgent medical need from DHS-CW when DHS-CW is the legal guardian.

(s) The foster provider shall cooperate as requested, when a review of psychotropic medications is indicated.

(10) DIRECT NURSING SERVICES.

(a) When direct nursing services are provided to a child the foster provider must:

(A) Coordinate with the nurse and the ISP team to ensure that the services being provided are sufficient to meet the child’s health needs; and

(B) Implement the Nursing Care Plan, or appropriate portions therein, as agreed upon by the ISP team and the registered nurse.

(b) When nursing tasks are delegated, they must be delegated by a licensed registered nurse in accordance with OAR chapter 851, division 047.

(11) CHILD RECORDS.

(a) GENERAL INFORMATION OR SUMMARY RECORD. The provider must maintain a record for each child in the home. The record must include:

(A) The child’s name, date of entry into the foster home, date of birth, gender, religious preference, and guardianship status;

(B) The names, addresses, and telephone numbers of the child’s guardian, family, advocate, or other significant person;

(C) The name, address, and telephone number of the child’s preferred primary health provider, designated back up health care provider and clinic, dentist, preferred hospital, medical card number and any private insurance information, and Oregon Health Plan choice;

(D) The name, address, and telephone number of the child’s school program; and

(E) The name, address, and telephone number of the CDDP services coordinator and representatives of other agencies providing services to the child.

(b) EMERGENCY INFORMATION. The foster provider must maintain emergency information for each child receiving foster care services in the child foster home. The emergency information must be kept current and must include:

(A) The child’s name;

(B) The child’s address and telephone number;

(C) The child’s physical description which may include a picture and the date it was taken, and identification of:

(i) The child’s race, gender, height, weight range, hair and eye color; and

(ii) Any other identifying characteristics that may assist in identifying the child should the need arise, such as marks or scars, tattoos, or body piercing.

(D) Information on the child’s abilities and characteristics including:

(i) How the child communicates;

(ii) The language the child uses or understands;

(iii) The ability of the child to know how to take care of bodily functions; and

(iv) Any additional information that could assist a person not familiar with the child to understand what the child can do for him or herself.

(E) The child’s health support needs including:

(i) Diagnosis;

(ii) Allergies or adverse drug reactions;

(iii) Health issues that a person would need to know when taking care of the child;

(iv) Special dietary or nutritional needs such as requirements around textures or consistency of foods and fluids;

(v) Food or fluid limitations, due to allergies, diagnosis, or medications the child is taking that may be an aspiration risk or other risk for the child;

(vi) Additional special requirements the child has related to eating or drinking, such as special positional needs or a specific way foods or fluids are given to the child;

(vii) Physical limitations that may affect the child’s ability to communicate, respond for instructions, or follow directions;

(viii) Specialized equipment needed for mobility, positioning, or other health related needs;

(ix) The child’s emotional and behavioral support needs including:

(I) Mental health or behavioral diagnosis and the behaviors displayed by the child; and

(II) Approaches to use when supporting the child to minimize emotional and physical outbursts.

(x) Any court ordered or guardian authorized contacts or limitations;

(xi) The child’s supervisions requirements and why; and

(xii) Any additional pertinent information the provider has that may assist in the care and support of the child should a natural or man-made disaster occur.

(c) EMERGENCY PLANNING. The foster provider must post emergency telephone numbers in close proximity to all phones utilized by the foster provider or substitute caregivers. The posted emergency telephone numbers must include:

(A) Telephone numbers of the local fire, police department, and ambulance service if not served by a 911 emergency services; and

(B) The telephone number of any emergency physician and additional persons to be contacted in the case of an emergency.

(d) WRITTEN EMERGENCY PLAN.

(A) Foster providers must develop, maintain, update, and implement a written Emergency Plan for the protection of all children in foster care in the event of an emergency or disaster. The Emergency Plan must:

(i) Be practiced at least annually. The Emergency Plan practice may consist of a walk-through of the provider’s and alternative caregiver’s responsibilities.

(ii) Consider the needs of the child and address all natural and human-caused events identified as a significant risk for the home such as a pandemic or an earthquake.

(iii) Include provisions and sufficient supplies, such as sanitation and food supplies, to shelter in place, when unable to relocate, for a minimum of three days under the following conditions:

(I) Extended utility outage;

(II) No running water;

(III) Inability to replace food supplies; and

(IV) Alternative caregiver is unable provide respite or additional support and care.

(iv) Include provisions for evacuation and relocation that identifies:

(I) The duties of the alternative caregivers during evacuation, transporting, and housing of the child including instructions to notify the child’s parent or legal guardian, the Division or designee, the CDDP services coordinator, and DHS-CW as applicable, of the plan to evacuate or the evacuation of the home as soon as the emergency or disaster reasonably allows;

(II) The method and source of transportation;

(III) Planned relocation sites that are reasonably anticipated to meet the needs of the child;

(IV) A method that provides persons unknown to the child the ability to identify each child by the child’s name, and to identify the name of the child’s supporting provider; and

(V) A method for tracking and reporting to the Division or the Division’s designee and the local CDDP, the physical location of each child in foster care until a different entity resumes responsibility for the child,

(v) Address the needs of the child including provisions to provide:

(I) Immediate and continued access to medical treatment, information necessary to obtain care, treatment, food, and fluids for the child, during and after an evacuation and relocation;

(II) Continued access to life sustaining pharmaceuticals, medical supplies, and equipment during and after an evacuation and relocation;

(III) Behavior support needs anticipated during an emergency; and

(IV) The supports needed to meet the life-sustaining and safety needs of the child.

(B) The foster provider must provide and document all training to alternative caregivers regarding their responsibilities for implementing the emergency plan.

(C) The foster provider must re-evaluate and revise the Emergency Plan at least annually or when there is a significant change in the home.

(D) The foster provider must complete the Emergency Plan Summary, on the form supplied by the Division, and must send it to the Division annually and upon change of licensee or location of the child foster home.

(e) INDIVIDUAL SUPPORT PLAN (ISP). Within 60 days of placement, the child’s ISP must be prepared by the ISP team and, at a minimum, updated annually.

(A) The foster provider must participate with the ISP team in the development and implementation of the ISP to address each child’s behavior, medical, social, financial, safety, and other support needs.

(B) Prior to or upon entry to or exit from the foster home, the foster provider must participate in the development and implementation of a Transition Plan for the child.

(i) The Transition Plan must include a summary of the services necessary to facilitate the adjustment of the child to the foster home or after care plan; and

(ii) Identify the supports necessary to ensure health, safety, and any assessments and consultations needed for ISP development.

(f) FINANCIAL RECORDS.

(A) The foster provider must maintain a separate financial record for each child. Errors must be corrected with a single strike through and initialed by the person making the correction. The financial record must include:

(i) The date, amount, and source of all income received on behalf of the child;

(ii) The room and board fee that is paid to the provider at the beginning of each month;

(iii) The date, amounts, and purpose of funds disbursed on behalf of the child; and

(iv) The signature of the person making the entry.

(B) Any single transaction over $25 purchased with the child’s personal funds, unless otherwise indicated in the child’s ISP, must be documented including receipts in the child’s financial record.

(C) The child’s ISP team may address how the child’s personal spending money shall be managed.

(D) If the child has a separate commercial bank account, records from that account must be maintained with the financial record.

(E) The child’s personal funds must be maintained in a safe manner and separate from other members of the household funds.

(F) Misuse of funds may be cause for suspension, revocation, or denial of renewal of the child foster home certificate.

(g) PERSONAL PROPERTY RECORD.

(A) The foster provider must maintain a written record of each child’s property of monetary value of more than $25 or that has significant personal value to the child, parent, or guardian, or as determined by the ISP team. Errors must be corrected with a single strike through and initialed by the person making the correction.

(B) Personal property records are not required for children who have a court approved Permanent Foster Care contract agreement unless requested by the child’s guardian.

(C) The personal property record must include:

(i) The description and identifying number, if any;

(ii) The date when the child brought in the personal property or made a new purchase;

(iii) The date and reason for the removal from the record; and

(iv) The signature of the person making the entry.

(h) EDUCATIONAL RECORDS. The foster provider must maintain the following educational records when available:

(A) The child’s report cards;

(B) Any reports received from the teacher or the school;

(C) Any evaluations received as a result of educational testing or assessment; and

(D) Disciplinary reports regarding the child.

(i) Child records must be available to representatives of the Division, the certifier, and DHS-CW conducting inspections or investigations, as well as to the child, if appropriate, and the guardian, or other legally authorized persons.

(j) Child records must be kept for a period of three years. If a child moves or the foster home closes, copies of pertinent information must be transferred to the child’s new home.

Stat. Auth.: ORS 409.050, 410.070, 430.215, & 443.835

Stats. Implemented: ORS 443.830 & 443.835

Hist.: MHD 15-2000(Temp), f. & cert. ef. 11-30-00 thru 5-28-01; MHD 3-2001, f. 5-25-01, cert. ef. 5-28-01; Renumbered from 309-046-0190, SPD 34-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 10-2007, f. 6-27-07, cert. ef. 7-5-07; SPD 7-2010, f. 6-29-10, cert. ef. 7-1-10; SDP 6-2011(Temp), f. & cert. ef. 2-10-11 thru 8-1-11

411-346-0200

Environmental Standards

(1) GENERAL CONDITIONS.

(a) The buildings and furnishings must be clean and in good repair and grounds must be maintained.

(b) Walls, ceilings, windows, and floors must be of such character to permit frequent washing, cleaning, or painting.

(c) There must be no accumulation of garbage, debris, or rubbish.

(d) The home must have a safe, properly installed, maintained, and operational heating system. Areas of the home used by the child in foster care must be maintained at normal comfort range during the day and during sleeping hours. During times of extreme summer heat, the provider must make reasonable effort to make the child comfortable using available ventilation, fans, or air-conditioning.

(2) EXTERIOR ENVIRONMENT.

(a) The premises must be free from objects, materials, and conditions that constitute a danger to the occupants.

(b) Swimming pools, wading pools, ponds, hot tubs, and trampolines must be maintained to assure safety, kept in clean condition, equipped with sufficient safety barriers or devices to prevent injury, and used by a child in foster care only under direct supervision by the provider or approved alternate caregiver.

(c) The home must have a safe outdoor play area on the property or within reasonable walking distance.

(3) INTERIOR ENVIRONMENT.

(a) KITCHEN.

(A) Equipment necessary for the safe preparation, storage, serving, and cleanup of meals must be available and kept in working and sanitary condition.

(B) Meals must be prepared in a safe and sanitary manner that minimizes the possibility of food poisoning or food-borne illness.

(C) If the washer and dryer are located in the kitchen or dining room area, soiled linens and clothing must be stored in containers in an area separate from food and food storage prior to laundering.

(b) DINING AREA. The home must have a dining area so the child in foster care may eat together with the foster family.

(c) LIVING OR FAMILY ROOM. The home must have sufficient living or family room space that is furnished and accessible to all members of the family including the child in foster care.

(d) BEDROOMS. Bedrooms used by the child in foster care must:

(A) Have adequate space for the age, size, and specific needs of each child;

(B) Be finished and attached to the house, have walls or partitions of standard construction that go from floor to ceiling, and have a door that opens directly to a hallway or common use room without passage through another bedroom or common bathroom;

(C) Have windows that open and provide sufficient natural light and ventilation with window coverings provided that take into consideration the safety, care needs, and privacy of the child;

(D) Have no more than four children to a bedroom;

(E) Have safe, age appropriate furnishings that are in good repair, provided for each child including:

(i) A bed or crib with a frame unless otherwise documented by an ISP team decision, a clean comfortable mattress, and a water proof mattress cover if the child is incontinent;

(ii) A private dresser or similar storage area for personal belongings that is readily accessible to the child;

(iii) A closet or similar storage area for clothing that is readily accessible to the child; and

(iv) An adequate supply of clean bed linens, blankets, and pillows. Bed linens are to be properly fitting and provided for each child’s bed.

(F) Be on the ground level for a child who is non-ambulatory or has impaired mobility;

(G) Provide flexibility in the decoration for the personal tastes and expressions of the child placed in the provider’s home;

(H) Be in close enough proximity to the provider to alert the provider to nighttime needs or emergencies, or be equipped with a working monitor;

(I) Have doors that do not lock;

(J) Have no three-tier bunk beds in bedrooms occupied by a child in foster care; and

(K) Not be located on the third floor or higher from the ground level.

(e) A child of the foster provider may not be required to sleep in a room also used for another purpose in order to accommodate a child in foster care.

(f) The foster provider may not permit the following sleeping arrangements for a child placed in their home:

(A) Children of different sexes in the same room when either child is over the age of five years of age; and

(B) Children over the age of 12 months sharing a room with an adult.

(g) BATHROOMS.

(A) Must have tubs or showers, toilets, and sinks operable and in good repair with hot and cold water.

(B) A sink must be located near each toilet.

(C) There must be at least one toilet, one sink, and one tub or shower for each six household occupants including the provider and family.

(D) Must have hot and cold water in sufficient supply to meet the needs of the child for personal hygiene. Hot water temperature sources for bathing and cleaning areas that are accessible by the child in foster care may not exceed 120 degrees F.

(E) Must have grab bars and non-slip floor surfaces for toilets, tubs, or showers for the child’s safety as necessary for the child’s care needs.

(F) Must have barrier-free access to toilet and bathing facilities with appropriate fixtures for a child who utilizes a wheel chair or other mechanical equipment for ambulation. Barrier free must be appropriate for the non-ambulatory child’s needs for maintaining good personal hygiene.

(G) The foster provider must provide each child with the appropriate personal hygiene and grooming items that meet each child’s specific needs and minimize the spread of communicable disease.

(H) Window coverings in bathrooms must take into consideration the safety, care needs, and privacy of the child.

(4) GENERAL SAFETY.

(a) The foster provider must protect the child from safety hazards.

(b) Stairways must be equipped with handrails.

(c) A functioning light must be provided in each room and stairway.

(d) In homes with a child in foster care age three or under, or a child with impaired mobility, the stairways must be protected with a gate or door.

(e) Hot water heaters must be equipped with a safety release valve and an overflow pipe that directs water to the floor or to another approved location.

(f) Adequate safeguards must be taken to protect a child who may be at risk for injury from electrical outlets, extension cords, and heat-producing devices.

(g) The foster home must have operable phone service at all times available to all persons in the foster home including when there are power outages. The home must have emergency phone numbers readily accessible and in close proximity to the phone.

(h) The foster provider must store all medications, poisonous chemicals, and cleaning materials in a way that prevents access by a child.

(i) The foster provider must restrict a child’s access to potentially dangerous animals. Only domestic animals must be kept as pets. Pets must be properly cared for and supervised.

(j) Sanitation for household pets and other domestic animals must be adequate to prevent health hazards. Proof of rabies or other vaccinations as required by local ordinances must be made available to the Division upon request.

(k) The foster provider must take appropriate measures to keep the house and premises free of rodents and insects.

(l) To protect the safety of a child in foster care, the provider must store hunting equipment and weapons in a safe and secure manner inaccessible to the child.

(m) The foster provider must have first aid supplies in the home in a designated place easily accessible to adults.

(n) There must be emergency access to any room that has a lock.

(o) An operable flashlight, at least one per floor, must be readily available in case of emergency.

(p) House or mailbox numbers must be clearly visible and easy to read for easy identification by emergency vehicles.

(q) Use of video monitors must only be used as indicated in the ISP or Behavior Support Plan.

(5) FIRE SAFETY.

(a) Smoke detectors must be installed in accordance with manufacturer’s instructions, equipped with a device that warns of low battery, and maintained to function properly.

(A) Smoke detectors must be installed in each bedroom, adjacent hallways leading to the bedrooms, common living areas, basements, and at the top of every stairway in multi-story homes.

(B) Ceiling placement of smoke detectors is recommended. If wall-mounted, the smoke detectors must be between 6” and 12” from the ceiling and not within 12” of a corner.

(b) At least one fire extinguisher, minimally rated 2:A:10:B:C, must be visible and readily accessible on each floor, including basements. A qualified professional who is well versed in fire extinguisher maintenance must inspect every fire extinguisher at least once per year. All recharging and hydrostatic testing must be completed by a qualified entity properly trained and equipped for this purpose.

(c) Use of space heaters must be limited to only electric space heaters equipped with tip-over protection. Space heaters must be plugged directly into the wall. No extension cords must be used with such heaters. No freestanding kerosene, propane, or liquid fuel space heaters must be used in the foster home.

(d) An Emergency Evacuation Plan must be developed, posted, and rehearsed at least once every 90 days with at least one drill practice per year occurring during sleeping hours. Alternate caregivers and other staff must be familiar with the emergency evacuation plan and a new child placed in foster care must be familiar with the Emergency Evacuation Plan within 24 hours. Fire drill records must be retained for one year.

(A) Fire drill evacuation rehearsal must document the date, time for full evacuation, location of proposed fire, and names of all persons participating in the evacuation rehearsal.

(B) The foster provider must be able to demonstrate the ability to evacuate all children in foster care from the home within three minutes.

(e) Foster homes must have two unrestricted exits in case of fire. A sliding door or window that may be used to evacuate a child may be considered a usable exit.

(f) Barred windows or doors used for possible exit in case of fire must be fitted with operable quick release mechanisms.

(g) Every bedroom used by a child in foster care must have at least one operable window, of a size that allows safe rescue, with safe and direct exit to the ground, or a door for secondary means of escape or rescue.

(h) All external and inside doors must have simple hardware with an obvious method of operation that allows for safe evacuation from the home. A home with a child that is known to leave their place of residence without permission must have a functional and activated alarm system to alert the foster provider.

(i) Fireplaces and wood stoves must include secure barriers to keep a child safe from potential injury and away from exposed heat sources.

(j) Solid or other fuel-burning appliances, stoves, or fireplaces must be installed according to manufacturer’s specifications and under permit, where applicable. All applicants applying for a new child foster home certificate after July 1, 2007 must have at least one carbon monoxide sensor installed in the home in accordance with manufactures instructions if the home has solid or other fuel-burning appliances, stoves, or fireplaces. All foster providers certified prior to July 1, 2007 and moving to a new location that uses solid or other fuel-burning appliances, stoves, or fireplaces, must install a carbon monoxide sensor in the home in accordance with manufactures instructions prior to being certified at the new location.

(k) Chimneys must be inspected at the time of initial certification and if necessary the chimney must be cleaned. Chimneys must be inspected annually, unless the fireplace and or solid fuel-burning appliance was not used through the certification period and may not be used in the future. Required annual chimney inspections are to be made available to the certifier during certification renewal processes.

(l) A signed statement by the foster provider and certifier assuring that the fireplace and or solid fuel-burning appliance may not be in use must be submitted to the Division with the renewal application if a chimney inspection may not be completed.

(m) Flammable and combustible materials must be stored away from any heat source.

(6) SANITATION AND HEALTH.

(a) A public water supply must be utilized if available. If a non-municipal water source is used, it must be tested for coliform bacteria by a certified agent yearly and records must be retained for two years. Corrective action must be taken to ensure potability.

(b) All plumbing must be kept in good working order. If a septic tank or other non-municipal sewage disposal system is used, it must be in good working order.

(c) Garbage and refuse must be suitably stored in readily cleanable, rodent proof, covered containers, and removed weekly.

(d) SMOKING.

(A) The foster provider may not provide tobacco products in any form to a child under the age of 18 placed in their home.

(B) A child in foster care may not be exposed to second hand smoke in the foster home or when being transported.

(7) TRANSPORTATION SAFETY.

(a) The foster provider must ensure that safe transportation is available for children to access schools, recreation, churches, scheduled medical care, community facilities, and urgent care.

(b) If there is not a licensed driver and vehicle at all times there must be a plan for urgent and routine transportation.

(c) The foster provider must maintain all vehicles used to transport a child in a safe operating condition and must ensure that a first aid kit is in each vehicle.

(d) All motor vehicles owned by the foster provider and used for transporting a child must be insured to include liability.

(e) Only licensed adult drivers must transport a child in foster care in a motor vehicle. The motor vehicle must be insured to include liability.

(f) When transporting a child in foster care, the driver must ensure that the child uses seat belts or appropriate safety seats. Car seats or seat belts must be used for transporting a child in accordance with the Department of Transportation under ORS 815.055.

Stat. Auth.: ORS 409.050, 410.070, 430.215, & 443.835

Stats. Implemented: ORS 443.830 & 443.835

Hist.: MHD 15-2000(Temp), f. & cert. ef. 11-30-00 thru 5-28-01; MHD 3-2001, f. 5-25-01, cert. ef. 5-28-01; Renumbered from 309-046-0200, SPD 34-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 10-2007, f. 6-27-07, cert. ef. 7-5-07; SPD 7-2010, f. 6-29-10, cert. ef. 7-1-10; SDP 6-2011(Temp), f. & cert. ef. 2-10-11 thru 8-1-11

411-346-0220

Inactive Referral Status; Denial, Suspension, Revocation, Refusal to Renew

(1) INACTIVE REFERRAL STATUS. The Division may require that a foster provider go on inactive referral status. Inactive referral status is a period, not to exceed 24 months or beyond the duration of the foster provider’s current certificate, when during that time no agency shall refer additional children to the home and the provider may not accept additional children. The foster provider may request to be placed on inactive referral status. The certifier may recommend that the Division initiate inactive referral status.

(a) The Division may place a foster provider on inactive referral status for reasons including but not limited to the following:

(A) The Division or DHS-CW is currently assessing an allegation of abuse in the home.

(B) The special needs of the child currently in the home require so much of the foster provider’s care and attention that additional children may not be placed in the home.

(C) The foster provider has failed to meet individualized training requirements or the Division has asked the foster provider to obtain additional training to enhance his or her skill in caring for the child placed in the home.

(D) The family or members of the household are experiencing significant family or life stress or changes in physical or mental health conditions that may be impairing their ability to provide care. Examples include but are not limited to:

(i) Separation or divorce and relationship conflicts;

(ii) Marriage;

(iii) Death;

(iv) Birth of a child;

(v) Adoption;

(vi) Employment difficulties;

(vii) Relocation;

(viii) Law violation; or

(ix) Significant changes in the care needs of their own family members (children or adults).

(b) The Division shall notify the foster provider immediately upon placing them on inactive referral.

(c) Within 30 days of initiating inactive referral status, the Division shall send a letter to the foster provider that confirms the inactive status, states the reason for the status, and the length of inactive referral status.

(d) When the foster provider initiates inactive referral status, the inactive status ends at the request of the foster provider and when the Division has determined the conditions that warranted the inactive referral status have been resolved.

(A) There must be no conditions in the home that compromise the safety of the child already placed in the home.

(B) If applicable, a mutually agreed upon plan must be developed to address the issues prior to resuming active status.

(C) The foster provider must be in compliance with all certification rules, including training requirements, prior to a return to active status.

(2) DENIAL, SUSPENSION, REVOCATION, REFUSAL TO RENEW.

(a) The Division shall deny, suspend, revoke, or refuse to renew a child foster care certificate where it finds there has been substantial failure to comply with these rules.

(b) Failure to disclose requested information on the application or providing falsified, incomplete, or incorrect information on the application shall constitute grounds for denial or revocation of the certificate.

(c) The Division shall deny, suspend, revoke, or refuse to renew a certificate if the foster provider fails to submit a plan of correction, implement a plan of correction, or comply with a final order of the Division.

(d) Failure to comply with OAR 411-346-0200(5) may constitute grounds for denial, revocation, or refusal to renew.

(e) The Division may deny, suspend, revoke, or refuse to renew the child foster home certificate where imminent danger to health or safety of a child exists, including any founded report or substantiated abuse.

(f) The Division shall deny, suspend, revoke, or refuse to renew a certificate if the foster provider has been convicted of any crime that would have resulted in an unacceptable criminal records check upon certification.

(g) Suspension shall result in the removal of a child placed in the foster home and no placements shall be made during the period of suspension.

(h) The applicant or foster provider whose certificate has been denied or revoked may not reapply for certification for five years after the date of denial or revocation.

(i) The Division shall provide the applicant or the foster provider a written notice of denial, suspension, or revocation that states the reason for such action.

(j) Such revocation, suspension, or denial shall be done in accordance with the rules of the Division and ORS chapter 183 that govern contested cases.

Stat. Auth.: ORS 409.050, 410.070, 430.215, & 443.835

Stats. Implemented: ORS 443.830 & 443.835

Hist.: MHD 15-2000(Temp), f. & cert. ef. 11-30-00 thru 5-28-01; MHD 3-2001, f. 5-25-01, cert. ef. 5-28-01; Renumbered from 309-046-0220, SPD 34-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 10-2007, f. 6-27-07, cert. ef. 7-5-07; 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 7-2010, f. 6-29-10, cert. ef. 7-1-10; SDP 6-2011(Temp), f. & cert. ef. 2-10-11 thru 8-1-11

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.

2.) Copyright 2011 Oregon Secretary of State: Terms and Conditions of Use

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