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Oregon Bulletin

May 1, 2014

Department of Human Services, Aging and People with Disabilities and Developmental Disabilities, Chapter 411

Rule Caption: Nursing Facility Staffing

Adm. Order No.: APD 3-2014

Filed with Sec. of State: 3-19-2014

Certified to be Effective: 3-31-14

Notice Publication Date: 1-1-2014

Rules Amended: 411-086-0100

Rules Repealed: 411-086-0100(T)

Subject: The Department of Human Services (Department) is permanently updating the rules OAR 411-086-0100 to:

   Make permanent temporary rule language that became effective on October 1, 2013 to implement the operational application of the increased nursing assistant staffing to resident ratio for nursing facilities;

   Implement the minimum standard of the increased nursing assistant staffing to residential ratio for nursing facility evening and night shifts to become effective on March 31, 2014;

   Ensure that appropriate forms for public information about the staffing responsibilities of the nursing facility are displayed;

   Reflect current practice and Department terminology; and

   Correct formatting and punctuation.

Rules Coordinator: Kimberly Colkitt-Hallman—(503) 945-6398

411-086-0100

Nursing Services: Staffing

(1) STAFFING PLAN.

(a) The facility must have and implement a written plan that:

(A) Ensures staffing sufficient to meet the minimum staffing requirements described in sections (3), (4), and (5) of this rule;

(B) Ensures staffing sufficient to meet the needs of each resident; and

(C) Identifies procedures to obtain required staff when absences occur.

(b) The facility must maintain a written, weekly staffing schedule showing the number and category of staff assigned to each shift and the person to be called in the event of any absence.

(2) DAILY STAFF PUBLIC POSTING.

(a) The facility must have the number of on-duty nursing staff publicly posted 24 hours each day using form SDS 0717 and the Nursing Assistant (NA) Staff Ratio Chart form SDS 0717A.

(A) The posted forms must be prominently displayed in a public area and readily accessible to residents and visitors as described in OAR 411-085-0030(1)(b).

(B) The posted forms must be at least 8.5 x 14 inches and printed in a minimum font size of 16.

(C) The staffing information must be an accurate reflection of the actual staff working each shift.

(b) The posted staffing forms must include:

(A) Facility name;

(B) Current date;

(C) Current resident census per shift;

(D) The total number and actual hours worked by registered nurses (RNs), licensed practical nurses (LPNs), and nursing assistants (CNAs and NAs) directly responsible for resident services per shift; and

(E) The minimum staffing standard, nursing assistant to resident ratio, referenced in section (5)(c) of this rule.

(c) Upon oral or written request, the facility must make direct care staffing data available to the public for review at a cost not to exceed the community standard.

(d) The facility must maintain the posted nurse staffing data for a minimum of 18 months.

(3) MINIMUM STAFFING, GENERALLY. Resident service needs must be the primary consideration in determining the number and categories of nursing personnel needed. Nursing staff must be sufficient in quantity and quality to provide nursing services for each resident as needed, including restorative services that enable each resident to achieve and maintain the highest practicable degree of function, self-care, and independence, as determined by the resident’s care plan. Such staffing must be provided even though it exceeds other requirements specified by this rule or specified in any waiver.

(4) MINIMUM LICENSED NURSE STAFFING.

(a) Licensed nurse hours must include no less than one RN hour per resident per week.

(b) When an RN serves as the administrator in the temporary absence of the administrator, the RN’s hours must not be used to meet minimum nursing hours.

(c) In facilities with 41 or more beds, the hours of a licensed nurse who serves as facility administrator must not be included in any licensed nurse coverage required by this rule.

(d) The licensed nurse serving as a charge nurse must not be counted toward the minimum staffing requirement under section (5)(c) of this rule.

(e) The facility must have a licensed charge nurse on each shift 24 hours per day.

(A) An RN must serve as the licensed charge nurse for no less than eight consecutive hours between the start of day shift and the end of evening shift, seven days a week.

(B) The Director of Nursing Services may serve as the charge nurse only when the facility has 60 or fewer residents.

(C) Section (4)(e) of this rule may be waived by the Department of Human Services (Department). The request for waiver must comply with OAR 411-085-0040 and must be reviewed annually. The waiver shall be considered by the Department if the facility certifies that:

(i) The facility has been unable to recruit appropriate personnel despite diligent efforts, including offering wages at the community prevailing rate for nursing facilities;

(ii) The waiver does not endanger the health or safety of residents; and

(iii) An RN or physician is available and obligated to immediately respond to telephone calls from the facility.

(5) MINIMUM CERTIFIED NURSING ASSISTANT STAFFING.

(a) The facility must determine the specific time frame for beginning and ending each consecutive eight-hour shift using one of the following options:

(A) Option 1.

(i) Day shift from 5:30 a.m. to 1:30 p.m.

(ii) Evening shift from 1:30 p.m. to 9:30 p.m.

(iii) Night shift from 9:30 p.m. to 5:30 a.m.

(B) Option 2.

(i) Day shift from 6 a.m. to 2 p.m.

(ii) Evening shift from 2 p.m. to 10 p.m.

(iii) Night shift from 10 p.m. to 6 a.m.

(C) Option 3.

(i) Day shift from 6:30 a.m. to 2:30 p.m.

(ii) Evening shift from 2:30 p.m. to 10:30 p.m.

(iii) Night shift from 10:30 p.m. to 6:30 a.m.

(D) Option 4.

(i) Day shift from 7 a.m. to 3 p.m.

(ii) Evening shift from 3 p.m. to 11 p.m.

(iii) Night shift from 11 p.m. to 7 a.m.

(b) Each resident must have assigned and be informed of the nursing assistant responsible for his or her care and services on each shift. The numbers listed in this rule represent the minimum staffing requirement. The numbers do not represent sufficient nursing staff. The number of staff necessary to meet the needs of each resident determines sufficient nursing staff.

(c) The number of residents per nursing assistant must not exceed the following ratios:

(A) Prior to October 1, 2013:

(i) DAY SHIFT: 1 nursing assistant per 7 residents.

(ii) EVENING SHIFT: 1 nursing assistant per 11 residents.

(iii) NIGHT SHIFT: 1 nursing assistant per 18 residents.

(B) Effective October 1, 2013 to March 30, 2014, each facility must, in addition to the nursing assistant staff to resident ratios listed in subsection (A) of this section, increase nursing assistant staffing to the minimum standard of 2.46 hours per resident day in a 24-hour period of time from the start of day shift until the end of night shift seven days a week.

(C) Effective March 31, 2014:

(i) DAY SHIFT: 1 nursing assistant per 7 residents.

(ii) EVENING SHIFT: 1 nursing assistant per 9.5 residents.

(iii) NIGHT SHIFT: 1 nursing assistant per 17 residents.

(d) Each facility must submit a quarterly staffing report to the Department using the Department’s approved method and format. The report must provide an accurate daily account of resident census and nursing assistant staffing levels for each shift.

(A) The facility must submit the report to the Department no later than the end of the month immediately following the end of each calendar quarter. (Example: For the calendar quarter ending March 31, the report must be received no later than April 30.)

(B) The report must specify the shifts in which the minimum staffing standards as set forth in section (5)(c) of this rule were not met.

(C) Upon the Department’s request, the facility must provide documents to support the quarterly staffing report, including payroll records.

(e) This rule does not prohibit nursing assistants from providing services to a resident to whom they are not assigned.

(f) The facility must ensure that nursing assistants only perform those tasks for which they are competent and qualified to perform and that are permitted by ORS chapter 678 and OAR 851-063-0030.

(g) Nursing assistants with a restricted duty status may be counted toward meeting the minimum staffing ratio as set forth in section (5)(c) of this rule if the nursing assistant is able to perform 90 percent of the authorized duties and responsibilities, with or without accommodation, required by a certified nursing assistant as determined by the Oregon State Board of Nursing (OAR 851-063-0030).

(h) The facility must ensure that a nursing assistant is not assigned more residents than the number for which the nursing assistant is able to meet the individual service needs.

(i) The facility must have a minimum of two nursing staff on duty within the facility at all times.

(j) Nursing staff must be present at all times in each detached building, distinct and segregated area including those separated by closed doors, and on each level or floor where residents are housed.

(k) Nursing assistants do not include dining assistants.

(l) Nursing assistants serving as restorative aides must not be counted toward the minimum staffing requirement under section (5)(c) of this rule.

(m) A facility must not employ any person as a nursing assistant for longer than four months from the date of hire without an Oregon State Board of Nursing issued CNA 1 certification.

(n) The facility must ensure no more than 25 percent of the nursing assistants assigned to residents per shift pursuant to section (5)(c) of this rule are uncertified nursing assistants.

(6) CERTIFIED MEDICATION AIDES.

(a) The facility must ensure that all nursing assistants administering non-injectable medications are certified as nursing assistants and as medication aides. Documentation of these two certifications must be maintained in the facility.

(b) The certified medication aide assigned to administer medications must not be counted toward meeting the minimum staffing requirements for direct service of residents referenced at section(5)(c) of this rule.

Stat. Auth.: ORS 410.070, 410.090, 441.055, 441.073 & 441.615

Stats. Implemented: ORS 410.070, 410.090, 441.055, 441.073 & 441.615

Hist.: SSD 19-1990, f. 8-29-90, cert. ef. 10-1-90; SSD 8-1993, f. & cert. ef. 10-1-93; SPD 23-2004, f. 7-30-04, cert, ef, 8-1-04; SPD 1-2008(Temp), f. 2-8-08, cert. ef. 3-1-08 thru 8-28-08; SPD 10-2008, f. & cert. ef. 8-28-08; SPD 36-2013(Temp), f. & cert. ef. 10-1-13 thru 3-30-14; APD 3-2014, f. 3-19-14, cert. ef. 3-31-14


Rule Caption: Payment Limitations in Community-Based Care Settings

Adm. Order No.: APD 4-2014(Temp)

Filed with Sec. of State: 3-20-2014

Certified to be Effective: 3-20-14 thru 9-16-14

Notice Publication Date:

Rules Amended: 411-027-0005, 411-027-0020, 411-027-0025

Subject: The Department of Human Services (Department) is immediately amending OAR 411-027 to allow the Department to pay the room and board costs for Medicaid eligible individuals who do not have sufficient income to meet their responsibilities described in OAR 411-027-0025 (3) and who do not qualify for the special needs payments.

Rules Coordinator: Kimberly Colkitt-Hallman—(503) 945-6398

411-027-0005

Definitions

(1) “AAA” means “Area Agency on Aging” as defined in this rule.

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

(3) “ADL” means “activities of daily living” as defined in this rule.

(4) “Area Agency on Aging (AAA)” means the Department designated agency charged with the responsibility to provide a comprehensive and coordinated system of services to older adults and adults with disabilities in a planning and service area. The term Area Agency on Aging is inclusive of both Type A and Type B Area Agencies on Aging as defined in ORS 410.040 and described in ORS 410.210-300.

(5) “Assessment” means the process of evaluating the functional impairment levels for service eligibility, including an individual’s requirements for assistance or independence in performing activities of daily living and instrumental activities of daily living and determining nursing facility services. The Department requires use of the Client Assessment and Planning System (CA/PS) as the tool used to determine service eligibility and planning.

(6) “Assistive Devices” means any category of durable medical equipment, mechanical apparatus, electrical appliance, or instrument of technology used to assist and enhance an individual’s independence in performing any activity of daily living. Assistive devices include the use of service animals, general household items, or furniture to assist the individual.

(7) “CA/PS” means the “Client Assessment and Planning System” as defined in this rule.

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

(9) “Client Assessment and Planning System (CA/PS)” is the single entry data system used for completing a comprehensive and holistic assessment, surveying an individual’s physical, mental and social functioning, and identifying risk factors, individual choices and preferences, and the status of service needs. The CA/PS documents the level of need and calculates the individual’s service priority level in accordance with the rules in OAR chapter 411, division 015, calculates the service payment rates, and accommodates individual participation in service planning.

(10) “Consumer Choice” means that an individual has been informed of alternatives to nursing facility services and has been given the choice of institutional services, Medicaid home and community-based service options, or the Independent Choices Program.

(11) “Contracted In-Home Care Agency” means an incorporated entity or equivalent, licensed in accordance with OAR chapter 333, division 536, that provides hourly contracted in-home services to individuals served by the Department or Area Agency on Aging.

(12) “Cost Effective” means being responsible and accountable with Department resources. This is accomplished by offering less costly alternatives when providing choices that adequately meet an individual’s service needs. Those choices consist of the available services under the Medicaid home and community-based service options, the utilization of assistive devices, natural supports, architectural modifications, and alternative service resources (defined in OAR 411-015-0005). Less costly alternatives may include resources not paid for by the Department.

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

(14) “Exception” means the approval for payment of a service plan granted to a specific individual in their current residence (or in the proposed residence identified in the exception request) that exceeds the CA/PS assessed service payment levels for individuals residing in community-based care facilities or the maximum hours of service as described in OAR 411-030-0070 for individuals residing in their own homes or the home of a relative. The approval is based on the service needs of the individual and is contingent upon the service plan meeting the requirements in OAR 411-027-0020, 411-027-0025, and 411-027-0050. The term “exception” is synonymous with “exceptional rate” or “exceptional payment.”

(15) “Homecare Worker” means a provider, as described in OAR 411-031-0040, that is directly employed by a consumer to provide either hourly or live-in services to the eligible consumer.

(a) The term homecare worker includes consumer-employed providers in the Spousal Pay and Oregon Project Independence Programs. The term homecare worker also includes consumer-employed providers that provide state plan personal care services to older adults and adults with physical disabilities. Relatives providing Medicaid in-home services to an individual living in the relative’s home are considered homecare workers.

(b) The term homecare worker does not include Independent Choices Program providers or personal care attendants enrolled through the Office of Developmental Disability Services or the Addictions and Mental Health Division.

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

(17) “IADL” means “instrumental activities of daily living” as defined in this rule.

(18) “ICP” means “Independent Choices Program” as defined in this rule.

(19) “Independent Choices Program (ICP)” means the self-directed in-home services program in which a participant is given a cash benefit to purchase goods and services identified in a service plan and prior approved by the Department or Area Agency on Aging.

(20) “Individual” means the person applying for, or eligible for, services. The term “individual” is synonymous” with “client”, “participant”, “consumer”, and “consumer-employer”.

(21) “In-Home Services” mean those activities of daily living and instrumental activities of daily living that assist an individual to stay in his or her own home or the home of a relative.

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

(23) “Live-In Services” mean the in-home services provided when an individual requires activities of daily living, instrumental activities of daily living, and twenty-four hour availability. Time spent by any live-in employee doing instrumental activities of daily living and twenty-four hour availability are exempt from federal and state minimum wage and overtime requirements.

(24) “Natural Supports” or “Natural Support System” means resources and supports (e.g. relatives, friends, significant others, neighbors, roommates, or the community) who are willing to voluntarily provide services to an individual without the expectation of compensation. Natural supports are identified in collaboration with the individual and the potential “natural support”. The natural support is required to have the skills, knowledge and ability to provide the needed services and supports.

(25) “Rate Schedule” means the rate schedule maintained by the Department at http://www.oregon.gov/DHS/spd/provtools/rateschedule.pdf. Printed copies may be obtained by contacting the Department of Human Services, Aging and People with Disabilities, ATTN: Rule Coordinator, 500 Summer Street NE, E-48, Salem, Oregon 97301.

(26) “These Rules” mean the rules in OAR chapter 411, division 027.

(27) “Twenty-Four Hour Availability” means the availability and responsibility of a homecare worker to meet the activities of daily living and instrumental activities of daily living of a consumer as required by the consumer over a 24 hour period. Twenty-four hour availability services are provided by a live-in homecare worker and are exempt from federal and state minimum wage and overtime requirements.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

Hist.: SPD 7-2008, f. 5-29-08, cert. ef. 6-1-08; APD 4-2014(Temp), f. & cert. ef. 3-20-14 thru 9-16-14

411-027-0020

Payment Limitations in Community-Based Care Services

(1) PAYMENT FOR SERVICES.

(a) Service payments under these rules are limited to services provided under Oregon’s Medicaid State Plan K Option for individuals served through the Department’s Aging and People with Disabilities program area.

(b) Community-based services include but are not limited to:

(A) In-home services (client-employed providers and contracted in-home care agencies);

(B) Residential care facility services;

(C) Assisted living facility services;

(D) Adult foster home services;

(E) Specialized living services;

(F) Adult day services; and

(G) Home-delivered meals.

(2) PAYMENT BASIS.

(a) Unless otherwise specified, service payment is based upon an individual’s assessed need for services as documented in CA/PS.

(b) Payments for community-based services are not intended to replace the resources available to an individual from the individual’s natural support system. Payment by the Department is only authorized when an individual’s natural support system is unavailable, insufficient, or inadequate to meet the needs of the individual.

(c) An individual with excess income must contribute to the cost of services pursuant to OAR 461-160-0610 and OAR 461-160-0620.

(d) Service plans are based upon less costly means of providing adequate services consistent with consumer’s assessed need and choice.

(e) An individual’s progress is monitored by Department and AAA local office staff. When a change occurs in the individual’s service needs that may warrant a change in the service payment rate, staff must update the service plan.

(3) SERVICE PAYMENTS. All service payments must be prior authorized by the Department or AAA local office staff.

(a) Department and AAA case managers authorize service payments from the rate schedule based on an individual’s service program and assessed need for services documented in CA/PS.

(b) Any rate that differs from the rate schedule must be pre-authorized by the Department.

(4) RATE SCHEDULE. Services are paid at the rate in the Rate Schedule at the time of the service. The rate schedule will be updated:

(a) When there is an increase in a rate on the schedule and/or

(b) Thirty (30) days prior when any rate change is reduced.

(5) SPOUSAL SERVICES. The Department does not make direct payments to a spouse for providing community-based services except for in-home services as described in OAR chapter 411, division 030.

(6) PAYMENTS FOR ADULT DAY SERVICES.

(a) Payments to any Medicaid-contracted adult day services program, as described in OAR chapter 411, division 066, are authorized by Department or AAA local office staff and made in accordance with the rate schedule.

(b) Adult day services may be authorized as part of an overall plan of services for service-eligible individuals and may be used in combination with other community-based services if adult day services are the appropriate resource to meet a special need.

(c) Department or AAA local office staff may authorize adult day services for payment as a single service or in combination with other community-based services. Adult day services are not authorized or paid for if another provider has been authorized payment for the same service. Payments authorized for adult day services are included in computing the total cost of services.

(d) The Department pays for a half day of adult day services when four or less hours of services are provided, and pays for a full day of adult day services when more than four but less than 24 hours are provided.

(7) PAYMENT FOR HOME DELIVERED MEALS.

(a) Payments to any Medicaid-contracted home delivered meals provider as described in OAR chapter 411, division 040 are authorized by Department or AAA local office staff and made in accordance with the rate schedule.

(b) Medicaid home-delivered meals may be authorized as part of an overall plan of services for service-eligible individuals and may be used in combination with other in-home services if meals are the appropriate resource to meet a special need.

(8) PAYMENTS TO ASSISTED LIVING FACILITIES. Payments to any Medicaid-contracted assisted living facility (ALF) as defined in OAR 411-054-0005 are authorized by Department or AAA local office staff and made in accordance with the rate schedule.

(a) The monthly service payment for an individual receiving services in an ALF is based on the individual’s degree of impairment in each of the six activities of daily living as determined by CA/PS and the payment levels described in paragraph (C) of this subsection. The individual’s initial service plan must be developed prior to admission to the ALF and must be revised if needed within 30 days. The individual’s service plan must be reviewed and updated at least quarterly or more often as needed as described in OAR 411-054-0034.

(b) Activities of daily living are weighted for purposes of determining the monthly service payment as follows:

(A) Critical activities of daily living include elimination, eating, and cognition/behavior.

(B) Less critical activities of daily living include mobility, bathing/personal hygiene, and dressing/grooming.

(C) Other essential factors considered are medical problems, structured living, medical management, and other needs.

(c) Payment (Impairment) Levels.

(A) Level 1 — All Title XIX, service priority level 1-13 eligible individuals are qualified for Level 1 or greater.

(B) Level 2 — Individual requires assistance in cognition/behavior AND elimination or mobility or eating.

(C) Level 3 — Individual requires assistance in four to six activities of daily living OR requires assistance in elimination, eating, and cognition/behavior.

(D) Level 4 — Individual is full assist in one or two activities of daily living OR requires assistance in four to six activities of daily living plus assistance in cognition/behavior.

(E) Level 5 — Individual is full assist in three to six activities of daily living OR full assist in cognition/behavior AND one or two other activities of daily living.

(d) The reimbursement rate for Department individuals receiving Medicaid services shall not be more than the rates charged private paying individuals receiving the same type and quality of services.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

Hist.: SSD 9-1984(Temp), f. & ef. 11-1-84; SSD 3-1985, f. & ef. 4-1-85; SSD 10-1985, f. & ef. 8-1-85; SSD 12-1985(Temp), f. & ef. 9-19-85; SSD 16-1985, f. 12-31-85, ef. 1-1-86; SSD 4-1987(Temp), f. & ef. 7-1-87; SSD 13-1987, f. 12-31-87, cert. ef. 1-1-88; SSD 6-1988, f. & cert. ef. 7-1-88; SSD 9-1989, f. 6-30-89, cert. ef. 7-1-89; SSD 2-1993, f. 3-19-93, cert. ef. 4-1-93; SSD 9-1993, f. & cert. ef. 12-1-93; SDSD 3-1998, f. 2-27-98, cert. ef. 3-1-98; SDSD 1-1999, f. & cert. ef. 3-1-99; SDSD 2-1999, f. 3-1-99, cert. ef. 4-1-99; SDSD 1-2001(Temp) f. & cert. ef. 2-5-01 thru 8-3-01; Suspended by SDSD 5-2001(Temp), f. & cert. ef. 3-8-01 thru 8-3-01; Administrative correction 11-20-01; SDSD 10-2001, f. 12-27-01, cert. ef. 1-1-02; SPD 21-2004(Temp), f. 7-31-04 cert. ef. 8-1-04 thru 1-5-05; SPD 39-2004, f. 12-30-04, cert. ef. 1-5-05; SPD 27-2006(Temp), f. 10-18-06, cert. ef. 10-23-06 thru 4-20-07; SPD 5-2007, f. 4-16-07, cert. ef. 4-17-07; Renumbered from 411-027-0000, SPD 7-2008, f. 5-29-08, cert. ef. 6-1-08; APD 4-2014(Temp), f. & cert. ef. 3-20-14 thru 9-16-14

411-027-0025

Payment for Residential Care Facility and Adult Foster Home Services

The Department reimburses for services provided to individuals residing in a residential care facility or an adult foster home according to the following:

(1) SERVICE PAYMENT. The provider must agree to accept an amount determined pursuant to OAR 461-155-0270 for room and board and a service payment determined by the Department pursuant to 411-027-0020 or 411-027-0050 as payment in full for all services rendered to an individual.

(2) SERVICE RATES. Service rates are based on an individual’s level of impairment and assessed need for services as documented in CA/PS. Service eligibility levels are assigned based on the degree of assistance an individual requires with activities of daily living and certain procedures that must be performed by a provider.

(a) A base rate is paid for all individuals in accordance with the rate schedule.

(b) Additional add-on payments are made for individuals whose assessed needs meet add-on criteria. Add-on payments are paid in accordance with the rate schedule.

(A) If an individual is eligible for one add-on payment, an add-on payment is made in addition to the base payment.

(B) If an individual is eligible for two add-on payments, a total of two add-on payments are made in addition to the base payment.

(C) If an individual is eligible for three add-on payments, a total of three add-on payments are made in addition to the base payment.Jordan40

(c) Eligibility for add-on payments is made based on individual needs as documented in CA/PS. An individual is eligible for an add-on payment if:

(A) The individual is full assist in mobility or eating or elimination;

(B) The individual demonstrates behavior that pose a risk to the individual or to others and the provider must consistently intervene to supervise or redirect; or

(C) The individual’s medical treatments, as selected and documented in CA/PS, require daily observation and monitoring with oversight by a licensed healthcare professional, no less than quarterly, and the facility has trained staff to provide such service and does provide the service.

(3) PAYMENT RESPONSIBILITIES.

(a) An individual is entitled to retain a personal allowance plus any income disregards pursuant to OAR 461-160-0620.

(b) An individual is responsible for payment of the room and board amount pursuant to OAR 461-155-0270.

(A) An individual eligible for Medicaid under OAR chapter 410, division 200 and eligible for long term care services under 411-015-0100 living in community based care facilities may be eligible for room and board assistance if the individual’s gross income is less than the room and board amount defined in 461-155-0270. The Department issues a special needs payment to the facility, on the individual’s behalf, for the difference between the individual’s income and the room and board standard.

(B) An individual eligible for Medicaid under OAR chapter 410, division 200 and receiving room and board assistance must apply for all benefits for which the individual may be eligible, per 410-200-0220, to continue to receive the room and board assistance. Individuals must follow all appeal options if applicable.

(c) An individual must contribute any income in excess of the personal allowance, income disregards, and room and board payments to the provider toward the service payment pursuant to OAR 461-160-0610 and Jordan40461-160-0620.

(d) The Department issues payment to the provider for the difference between the service payment and the available income of the individual.

(4) The provider may not charge the individual, or a relative or representative of the individual, for items included in the room and board or service payments for any items for which the Department makes payment.

(5) The Department is not responsible for damages to the provider’s home, facility or property, or obligations entered into with the individual.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

Hist.: SDSD 3-1998, f. 2-27-98, cert. ef. 3-1-98; SDSD 4-1998, f. 6-25-98, cert. ef. 7-1-98; SDSD 10-2001, f. 12-24-01, cert. ef. 1-1-02, Renumbered from 411-027-0100; SPD 7-2008, f. 5-29-08, cert. ef. 6-1-08; APD 4-2014(Temp), f. & cert. ef. 3-20-14 thru 9-16-14


Rule Caption: Nursing Facility Closure

Adm. Order No.: APD 5-2014

Filed with Sec. of State: 3-31-2014

Certified to be Effective: 4-1-14

Notice Publication Date: 3-1-2014

Rules Amended: 411-085-0005, 411-085-0025, 411-085-0210, 411-088-0020, 411-088-0070, 411-088-0080, 411-089-0030

Rules Repealed: 411-085-0025(T), 411-085-0210(T), 411-088-0070(T)

Subject: The Department of Human Services (Department) is permanently updating the nursing facility rules set forth in OAR chapter 411, divisions 085, 088, and 089 to make permanent temporary rule language that became effective on October 7, 2013 and to align with final rules issued by the Centers for Medicare and Medicaid Services (CMS) that implements Section 6113 of the Patient Protection and Affordable Care Act (PPACA).

   The permanent rules ensure that, in the case of a facility closure, individuals serving as administrators provide written notification of the impending closure to the residents and other required individuals at least 60 days prior to impending closure and create a plan for the relocation of the residents. Administrators who fail to comply with the new closure requirements may be subject to civil monetary penalties and exclusion from Federal health care program participation. Hearing rights apply.

Rules Coordinator: Kimberly Colkitt-Hallman—(503) 945-6398

411-085-0005

Definitions

Unless the context requires otherwise, the following definitions apply to the rules in OAR chapter 411, divisions 70, 85, and 89:

(1) “AAA” means “Area Agency on Aging” as defined in this rule.

(2) “Abuse” means:

(a) Any physical injury to a resident that has been caused by other than accidental means. This includes injuries that a reasonable and prudent individual would have been able to prevent, such as hitting, pinching or striking, or injury resulting from rough handling.

(b) Failure to provide basic care or services to a resident that results in physical harm, unreasonable discomfort, or serious loss of human dignity.

(c) Sexual contact with a resident, including fondling, caused by an employee, agent, or other resident of a long-term care facility by force, threat, duress or coercion, or sexual contact where the resident has no ability to consent.

(d) Illegal or improper use of a resident’s resources for the personal profit or gain of another individual, borrowing resident funds, spending resident funds without the resident’s consent or, if the resident is not capable of consenting, spending resident funds for items or services from which the resident cannot benefit or appreciate, or spending resident funds to acquire items for use in common areas when such purchase is not initiated by the resident.

(e) Verbal abuse as prohibited by federal law, including the use of oral, written, or gestured communication to a resident or visitor that describes a resident in disparaging or derogatory terms.

(f) Mental abuse as prohibited by law including humiliation, harassment, threats of punishment, or deprivation, directed toward the resident.

(g) Corporal punishment.

(h) Involuntary seclusion for convenience or discipline.

(3) “Abuse Complaint” means any oral or written communication to the Department, one of the Department’s agents, or a law enforcement agency alleging abuse.

(4) “Activities Program” means services offered to each resident that encourage the resident to participate in physical and mental exercises that are designed to maintain or improve physical and mental well-being and social skills.

(5) “Acute Sexual Assault” means any non-consensual or unwanted sexual contact that warrants medical treatment or forensic collection.

(6) “Applicant” means the individual required to complete a nursing facility application for a license. Applicant includes a sole proprietor, each partner in a partnership, or the corporation that owns the nursing facility business. Applicant also includes a sole proprietor, each partner in a partnership, or a corporation that operates a nursing facility on behalf of the nursing facility business owner.

(7) “Area Agency on Aging (AAA)” means a Type B Area Agency on Aging that is an established public agency within a planning and service area designated under the Older Americans Act, 42 U.S.C. 3025, that has responsibility for local administration of Department programs.

(8) “Assessment” means a written evaluation of a resident’s abilities, condition, and needs based upon resident interview, observation, clinical and social records, and other available sources of information.

(9) “Care” means services required to maximize resident independence, personal choice, participation, health, self-care, and psychosocial functioning, as well as to provide reasonable safety, all consistent with the preferences of the resident.

(10) “Certified Medication Aide” means “certified medication assistant” as defined in this rule.

(11) “Certified Medication Assistant” means a certified nursing assistant who has been certified as a medication assistant or medication aide pursuant to ORS Chapter 678 and the rules adopted thereunder.

(12) “Certified Nursing Assistant” means an individual who has been certified as a nursing assistant pursuant to ORS Chapter 678 and the rules adopted thereunder.

(13) “Change of Operator” means “change of ownership” as defined in this rule.

(14) “Change of Ownership” means a change in the individual or entity that owns the facility business, a change in the individual or entity responsible for the provision of services at the facility, or both. Events that change ownership include but are not limited to:

(a) A change in the form of legal organization of the licensee;

(b) Transfer of the title to the nursing facility enterprise by the owner to another party;

(c) If the licensee is a corporation, dissolution of the corporation, merger of the corporation with another corporation, or consolidation of one or more corporations to form a new corporation;

(d) If the licensee is a partnership, any event that dissolves the partnership;

(e) Any lease, management agreement, or other contract or agreement that results in a change in the legal entity responsible for the provision of services at the facility; or

(f) Any other event that results in a change of the operating entity.

(15) “Control Interest” means “management” as defined in this rule.

(16) “Day Care Resident” means an individual who is not bedfast who receives services and care in a nursing facility for not more than 16 hours per day.

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

(18) “Division” means the “Department” as defined in this rule.

(19) “Drug” has the same meaning set forth in ORS Chapter 689.005.

(20) “Entity” means “Individual” as defined in this rule.

(21) “Establish a Nursing Facility” means to possess or hold an incident of ownership in a nursing facility business.

(22) “Facility” means an establishment that is licensed and certified by the Department as a nursing facility.

(23) “Facility Fund” means a fund created under ORS 441.303 to meet expenses relating to the appointment of a trustee under 441.277 to 441.323 or the appointment of a temporary manager under 441.333 for a nursing facility or a residential care facility.

(24) “Health Care Facility” means a health care facility as defined in ORS 442.015, a residential care facility as defined in 443.400, and an adult foster home as defined in 443.705.

(25) “Hearing” means a contested case hearing according to the Administrative Procedures Act and the rules of the Department.

(26) “Incident of Ownership” means:

(a) An ownership interest;

(b) An indirect ownership interest; or

(c) A combination of direct and indirect ownership interest.

(27) “Indirect Ownership Interest” means an ownership interest in an entity that has an ownership interest in another entity. Indirect ownership interest includes an ownership interest in an entity that has an indirect ownership interest in another entity.

(28) “Individual” means an entity including an individual, a trust, an estate, a partnership, a corporation, or a state or governmental unit as defined in ORS 442.015 including associations, joint stock companies, insurance companies, the state, or a political subdivision or instrumentality, including a municipal corporation.

(29) “Inpatient Beds” means a bed in a facility available for occupancy by a resident who is cared for and treated on an overnight basis.

(30) “Inspection” means any on-site visit to the facility by anyone designated by the Secretary of the U.S. Department of Health and Human Services, the Department, or a “Type B” Area Agency on Aging and includes but is not limited to a licensing inspection, certification inspection, financial audit, Medicaid Fraud Unit review, monitoring, or complaint investigation.

(31) “Legal Representative” means an attorney at law, the individual holding a general power of attorney or special power of attorney for health care, a guardian, a conservator, any individual appointed by a court to manage the personal or financial affairs of a resident, or an individual or agency legally responsible for the welfare or support of a resident other than the facility.

(32) “Licensed Nurse” means a registered nurse or a licensed practical nurse.

(33) “Licensed Practical Nurse (LPN)” means an individual licensed under ORS Chapter 678 to practice practical nursing.

(34) “Licensee” means the applicant to whom a nursing facility license has been issued.

(35) “Local Designee of the Department” means the local unit of the Department or the Area Agency on Aging.

(36) “Long Term Care Facility” means “nursing facility” as defined in this rule.

(37) “LPN” means “licensed practical nurse” as defined in this rule.

(38) “Maintain a Nursing Facility” means “establish a nursing facility” as defined in this rule.

(39) “Major Alteration” means change other than repair or replacement of building materials or equipment with materials and equipment of a similar type.

(40) “Management” means:

(a) Possessing the right to exercise operational or management control over, or to directly or indirectly conduct the day-to-day operation of, an institution, organization, or agency; or

(b) An interest as an officer or director of an institution, organization, or agency organized as a corporation.

(41) “New Construction” means:

(a) A new building;

(b) An existing building or part of a building that is not currently licensed as a nursing facility;

(c) A part of an existing building that is not currently licensed for the purpose for which such part is proposed to be licensed, such as rooms that are proposed to be licensed as nursing facility resident rooms but are not currently licensed as nursing facility resident rooms;

(d) A major alteration to an existing building;

(e) An addition to an existing building;

(f) A conversion in use; or

(g) Renovation or remodeling of an existing building.

(42) “NFPA” means “National Fire Protection Association”.

(43) “Nurse Aide” means “nursing assistant” as defined in this rule.

(44) “Nurse Practitioner” means an individual certified under ORS Chapter 678 as a nurse practitioner.

(45) “Nursing Assessment” means evaluation of fluids, nutrition, bowel/bladder elimination, respiration, circulation, skin, vision, hearing, musculoskeletal systems, allergies, personal hygiene, mental status, communicative skills, safety needs, rest, sleep, comfort, pain, other appropriate measures of physical status, and medication and treatment regimes. Nursing assessment includes data collection, comparison with previous data, analysis or evaluation of that data, and utilization of available resource information.

(46) “Nursing Assistant” means an individual who assists licensed nurses in the provision of nursing care services. “Nursing Assistant” includes but is not limited to a certified nursing assistant, a certified medication assistant, and individuals who have successfully completed a state approved nurse assistant training course.

(47) “Nursing Care” means direct and indirect care provided by a registered nurse, licensed practical nurse, or nursing assistant.

(48) “Nursing Facility” means an establishment with permanent facilities, including inpatient beds, that provides medical services, including nursing services but excluding surgical procedures, and that provides care and treatment for two or more unrelated residents. In this definition, “treatment” means complex nursing tasks that cannot be delegated to an unlicensed individual. “Nursing Facility” only includes facilities licensed and operated pursuant to ORS 441.020(2).

(49) “Nursing Facility Administrator” means an individual licensed under ORS Chapter 678 who is responsible to the licensee and is responsible for planning, organizing, directing, and controlling the operation of a nursing facility.

(50) “Nursing Facility Law” means ORS Chapter 441 and the rules for nursing facilities adopted thereunder.

(51) “Nursing Home” means “nursing facility” as defined in this rule.

(52) “Nursing Staff” means registered nurses, licensed practical nurses, and nursing assistants providing direct resident care in a facility.

(53) “Owner” means an individual with an ownership interest.

(54) “Ownership Interest” means the possession of equity in the capital, the stock, or the profits of an entity.

(55) “Pharmacist” has the same meaning as set forth in ORS 689.005.

(56) “Pharmacy” has the same meaning as set forth in ORS 689.005.

(57) “Physician” means an individual licensed under ORS Chapter 677 as a physician.

(58) “Physician’s Assistant” means an individual registered under ORS Chapter 677 as a physician’s assistant.

(59) “Podiatrist” means an individual licensed under ORS Chapter 677 to practice podiatry.

(60) “Prescription” has the same meaning as set forth in ORS 689.005.

(61) “Public or Private Official” means:

(a) Physician, naturopathic physician, osteopathic physician, chiropractor, podiatric physician, physician assistant, or surgeon including any intern or resident;

(b) Licensed practical nurse, registered nurse, nurse practitioner, nurse’s aide, home health aide, or employee of an in-home health agency;

(c) Employee of the Department, Area Agency on Aging, county health department, community mental health program, community developmental disability program, or nursing facility;

(d) Individual who contracts to provide services to a nursing facility;

(e) Peace officer;

(f) Clergy;

(g) Licensed clinical social worker, psychologist, licensed professional counselor, or licensed marriage and family therapist;

(h) Physical, speech, or occupational therapist, respiratory therapist, audiologist, or speech language pathologist;

(i) Senior center employee;

(j) Information and referral or outreach worker;

(k) Any public official who comes in contact with elderly individuals in the performance of the official’s official duties;

(l) Firefighter or emergency medical technician;

(m) Legal counsel for a resident; or

(n) Guardian for, or family member of, a resident.

(62) “Registered Nurse (RN)” means an individual licensed under ORS Chapter 678.

(63) “Rehabilitative Services” means specialized services provided by a therapist or a therapist’s assistant to a resident to attain optimal functioning, including but not limited to physical therapy, occupational therapy, speech and language therapy, and audiology.

(64) “Relevant Evidence” means factual information that tends to either prove or disprove the following:

(a) Whether abuse or other rule violation occurred;

(b) How abuse or other rule violation occurred; or

(c) Who was involved in the abuse or other rule violation.

(65) “Resident” means an individual who has been admitted but not discharged from a facility.

(66) “Restorative Aide” means a certified nursing assistant primarily assigned to perform therapeutic exercises and activities to maintain or re-establish a resident’s optimum physical function and abilities according to the resident’s restorative plan of care and pursuant to OAR 411-086-0150.

(67) “Restorative Nursing” means “restorative services” as defined in this rule.

(68) “Restorative Services” mean the measures provided by nursing staff and directed toward re-establishing and maintaining a residents’ fullest potential.

(69) “RN” means “registered nurse” as defined in this rule.

(70) “Safety” means the condition of being protected from environmental hazards without compromise to a resident’s or legal guardian’s choice, or undue sacrifice of a resident’s independence.

(71) “Significant Other” means an individual designated by the resident or by the court to act on behalf of the resident. If the resident is not capable of such designation and there is no court-appointed individual, then a significant other means a family member or friend who has demonstrated consistent concern for the resident. No rule using this term is intended to allow release of, or access to, confidential information to individuals who are not otherwise entitled to such information, or to allow such individuals to make decisions that they are not entitled to make on behalf of a resident.

(72) “Suspected Abuse” means reasonable cause to believe that abuse may have occurred.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 410.070, 441.055, 441.615 & 441.637

Stats. Implemented: ORS 410.070, 441.055, 441.615, 441.630, 441.637, 441.650

Hist.: SSD 19-1990, f. 8-29-90, cert. ef. 10-1-90; SSD 8-1993, f. & cert. ef. 10-1-93; SSD 1-1995, f. 1-30-95, cert. ef. 2-1-95; SPD 26-2004, f. 7-30-04, cert.ef. 8-1-04; SPD 1-2008(Temp), f. 2-8-08, cert. ef. 3-1-08 thru 8-28-08; SPD 10-2008, f. & cert. ef. 8-28-08; SPD 24-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 11-2010, f. 6-30-10, cert. ef. 7-1-10; APD 5-2014, f. 3-31-14, cert. ef. 4-1-14

411-085-0025

Change of Ownership or Operator and Closure

(1) CHANGE OF OWNERSHIP OR OPERATOR.

(a) When a change of ownership or a change of operator is contemplated, a licensee and a prospective licensee must each notify the Department in writing of the contemplated change. The notice of change of ownership or operator must be received by the Department at least 45 days prior to the proposed date of transfer. A shorter timeframe may be allowed at the sole discretion of the Department. The notice of change of ownership or operator must be in writing and must include the following:

(A) Name and signature of the current licensee;

(B) The name of the prospective licensee;

(C) The proposed date of the transfer;

(D) Type of transfer (e.g., sale, lease, rental, etc.); and

(E) A complete, signed nursing facility application from the prospective licensee.

(b) A prospective licensee may not assume possession or control of a facility until after the prospective licensee has been notified by the Department that the prospective licensee’s application has been approved.

(c) The current licensee is responsible for the operation of the facility and resident care provided therein until a new license is issued to a new owner or operator or the facility operation is closed.

(2) FACILITY CLOSURE.

(a) NOTICE OF INTENT TO CLOSE. The licensee must notify the Department of the intent to close a facility 90 days prior to the anticipated date of closure.

(b) SERVICES AND OPERATION DURING CLOSURE. The licensee is responsible for the operation of the facility and resident care provided therein until all residents are transferred and the facility is closed.

(c) RESIDENT RECORDS. The licensee is responsible for the transfer and retention of resident clinical records according to OAR 411-086-0300.

(d) PROPOSED RESIDENT TRANSITION PLAN.

(A) The nursing facility administrator must submit a proposed resident transition plan to the Department for review and approval 75 days prior to the anticipated date of closure. The proposed resident transition plan must:

(i) Include resident-specific transition plans based on current and accurate assessments of each resident’s needs, preferences, and best interests;

(ii) In collaboration with the Department, identify potential transition settings that are available and appropriate in terms of quality, services, and location;

(iii) In collaboration with the Department, include a proposed time table for resident assessments, planning conferences, and transitions;

(iv) Include the resources, policies, and procedures that the facility must provide or arrange in order to plan and implement the transitions; and

(v) Include a list of the residents to be transitioned, including each resident’s current level of care, a brief description of any special needs or conditions, and the name and address of the resident’s guardian (if applicable). The list of residents to be transitioned must include:

(I) Residents that are eligible to return to the facility following hospitalization as described in OAR 411-088-0050; and

(II) Residents that are temporarily absent from the facility and have secured a bedhold as described in OAR 411-070-0110.

(B) Resident transitions must comply with OAR 411-088-0020(1)(f) and 411-088-0070(1)(g), (3)(d), and (4) (Transfers).

(e) PROPOSED FACILITY CLOSURE PLAN. The nursing facility administrator must submit a proposed facility closure plan to the Department for review and approval 75 days prior to the anticipated date of closure. The proposed facility closure plan must include:

(A) A description of operations during the closure period;

(B) The plan to assure adequate staff, supplies, and services necessary to provide resident care during the closure period;

(C) The primary contact responsible for daily facility operations during the closure period;

(D) The primary contact responsible for the oversight of those managing the facility during the closure period;

(E) The Department-approved estimated date of closure; and

(F) The address where the licensee may be reached following facility closure.

(f) ADDITIONAL INFORMATION. Upon request, the administrator must provide the Department with any additional information related to resident transfer or facility operations during the closure period.

(g) DEPARTMENT APPROVAL. The Department shall notify the facility of the Department’s approval within 10 days of receipt of the facility’s proposed resident transition plan and facility closure plan.

(A) If the Department disapproves a proposed plan, the Department shall work with the facility to modify the plan.

(B) No residents may be transitioned until the Department approves the proposed plan or until a modified plan is agreed upon.

(C) If a plan is not approved or agreed upon within 30 days of receipt of the intent to close, the Department may initiate actions for temporary management according to OAR 411-089-0075.

(D) The Department may provide or arrange for resident transitions in order to minimize resident trauma and to ensure the orderly transition of residents.

(h) NOTICE TO RESIDENTS AND OTHER REQUIRED PARTIES. The administrator must provide written notice in accordance with OAR 411-088-0070(1)(g), (3)(d), and (4).

(3) ADMISSIONS.

(a) The administrator must assure that the facility does not admit new residents on or after the date the 60-day notice is issued to the resident and required parties according to OAR 411-088-0020(1)(f) and 411-088-0070(1)(g), (3)(d), and (4).

(b) A resident who is eligible to return to a facility following hospitalization per OAR 411-088-0050 may return to a facility that is in the process of closing.

(c) A resident who is eligible to readmit to a facility following discharge per OAR 411-088-0060 may readmit to a facility that is in the process of closing.

(d) A resident who is temporarily absent from a facility per OAR 411-070-0110 may return to a facility that is in the process of closing.

Stat. Auth.: ORS 410.070, 441.055, & 441.615

Stats. Implemented: ORS 441.055 & 441.615

Hist.: SSD 19-1990, f. 8-29-90, cert. ef. 10-1-90; SSD 8-1993, f. & cert. ef. 10-1-93; SPD 26-2004, f. 7-30-04, cert. ef. 8-1-04; SPD 38-2013(Temp), f. 10-4-13, cert. ef. 10-7-13 thru 4-4-14; APD 5-2014, f. 3-31-14, cert. ef. 4-1-14

411-085-0210

Facility Policies

(1) A Quality Assessment and Assurance Committee must develop and adopt facility policies. The policies must be followed by the facility staff and evaluated annually by the Quality Assessment and Assurance Committee and rewritten as needed. Policies must be adopted regarding:

(a) Admission, fees, and services;

(b) Transfer and discharge, including discharge planning;

(c) Physician services;

(d) Nursing services;

(e) Dietary services;

(f) Rehabilitative services and restorative services;

(g) Pharmaceutical services, including self administration;

(h) Care of residents in an emergency;

(i) The referral of residents who may be victims of acute sexual assault to the nearest trained sexual assault examiner. The policy must include information regarding the collection of medical and forensic evidence that must be obtained within 86 hours of the incident;

(j) Activities;

(k) Social services;

(l) Clinical records;

(m) Infection control;

(n) Diagnostic services;

(o) Oral care and dental services;

(p) Accident prevention and reporting of incidents;

(q) Housekeeping services and preventive maintenance;

(r) Employee orientation and in-service;

(s) Laundry services;

(t) Possession of firearms and ammunition;

(u) Consultant services;

(v) Resident grievances; and

(w) Facility closure. The policy must identify an administrator’s responsibility to assure compliance with OAR 411-085-0025, 411-088-0020(1)(f), and 411-088-0070(1)(g), (3)(d), and (4).

(2) Each policy must be in writing and must specify the date the policy was last reviewed by the Quality Assessment and Assurance Committee.

Stat. Auth.: ORS 410.070, 441.055, & 441.615

Stats. Implemented: ORS 441.055 & 441.615

Hist.: SSD 19-1990, f. 8-29-90, cert. ef. 10-1-90; SPD 26-2004, f. 7-30-04, cert. ef. 8-1-04; SPD 38-2013(Temp), f. 10-4-13, cert. ef. 10-7-13 thru 4-4-14; APD 5-2014, f. 3-31-14, cert. ef. 4-1-14

411-088-0020

Basis for Involuntary Transfer

Upon compliance with these transfer rules (OAR 411-088), an involuntary transfer of a resident may be made when one of the reasons specified in this rule exists.

(1) MEDICAL AND WELFARE REASONS.

(a) A resident may be transferred when the resident’s physician states in writing that:

(A) The resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility; or

(B) The facility is unable to meet the resident’s needs and the facility has identified another environment available to the resident that may better meet the resident’s needs. The Department shall assist the facility in the facility’s effort to identify another environment for the resident.

(b) A resident may be transferred when the Department Administrator or the State Fire Marshal states in writing the safety of the resident (or other people in the facility) is endangered and justifies the transfer;

(c) A resident may be transferred when the behavior of the resident creates a serious and immediate threat to the resident or to other residents or people in the facility and all reasonable alternatives to transfer (consistent with the attending physician’s orders) have been attempted and documented in the resident’s medical record. Such alternatives may include but are not limited to chemical or physical restraints and medication;

(d) A resident may be transferred when the resident has a medical emergency;

(e) A resident may be transferred when governmental action results in a facility’s certification or license being revoked or not renewed;

(f) A resident may be transferred when a facility intends to terminate operation as a nursing facility. The facility must:

(A) Certify in writing to the Department the license is to be irrevocably terminated as described in OAR 411-085-0025; and

(B) Establish to the satisfaction of the Department that arrangements to accomplish all necessary transfers are made in a safe manner with adequate resident involvement and follow-up for each resident to minimize negative effects of the transfer;

(g) A resident receiving post-hospital extended care services or specialized services from a facility under a physician’s order may be transferred from the facility when, according to the physician’s written opinion, the resident has improved sufficiently and no longer needs the post-hospital extended care services or specialized services provided by the facility.

(A) The purpose of the admission, including the projected course of treatment and the expected length of stay, must be agreed to in writing by the resident (or the resident’s legal representative who is so authorized to make such an agreement) at or prior to admission.

(B) The facility must identify another environment available to the resident that is appropriate to meet the resident’s needs.

(C) The notice of transfer may be issued at the time of admission or later and must be based upon the projected course of treatment.

(2) NON-PAYMENT REASONS. A resident may be transferred when there is a non-payment of facility charges for the resident and payment for the stay is not available through Medicaid, Medicare, or other third party reimbursement.

(a) A resident may not be transferred if, prior to actual transfer, delinquent charges are paid.

(b) A resident may not be transferred for delinquent charges if payment for current charges is available through Medicaid, Medicare, or other third party reimbursement.

(3) CONVICTION OF A SEX CRIME.

(a) A resident who was admitted January 1, 2006 or later may be moved without advance notice if all of the following are met:

(A) The facility was not notified prior to admission that the resident is on probation, parole, or post-prison supervision after being convicted of a sex crime;

(B) The facility learns that the resident is on probation, parole, or post-prison supervision after being convicted of a sex crime; and

(C) The resident presents a current risk of harm to another resident, staff, or visitor in the facility as evidenced by:

(i) Current or recent sexual inappropriateness, aggressive behavior of a sexual nature, or verbal threats of a sexual nature; and

(ii) Current communication from the State Board of Parole and Post-Prison Supervision, Department of Corrections, or community corrections agency parole or probation officer that the individual’s Static 99 score or other assessment indicates a probable sexual re-offense risk to others in the facility.

(b) Prior to the move, the facility must contact the Department by telephone and review the criteria in subsection (a) of this section. The Department shall respond within one working day of contact by the facility. The Department of Correction’s parole or probation officer must be included in the review, if available. The Department shall advise the facility if rule criteria for immediate move out are not met. The Department shall assist in locating placement options.

(c) The facility must issue written notice on the Department approved form. The form must be filled out in its entirety and a copy of the notice delivered in person to the resident or the resident’s legal representative, if applicable. Where a resident lacks capacity and there is no legal representative, a copy of the written notice must be immediately faxed to the State Long-Term Care Ombudsman.

(d) Prior to the move, the facility must orally review the notice and right to object with the resident or if applicable, the resident’s legal representative and determine if a hearing is requested. A request for hearing does not delay the involuntary transfer. The facility must immediately telephone the Department when a hearing is requested. The hearing must be held within five business days of the resident’s move. An informal conference may not be held prior to the hearing.

Stat. Auth.: ORS 441.055, 441.615 & 443.410

Stats. Implemented: ORS 441.055, 441.600, 441.605, 441.615, 443.410 & 181.586

Hist.: SSD 19-1990, f. 8-29-90, cert. ef. 10-1-90; SSD 8-1993, f. & cert. ef. 10-1-93; SSD 2-1995, f. & cert. ef. 2-15-95; SPD 6-2006(Temp), f. & cert. ef. 1-18-06 thru 7-1-06; SPD 21-2006, f. 6-27-06 cert. ef. 7-1-06; APD 5-2014, f. 3-31-14, cert. ef. 4-1-14

411-088-0070

Notice Requirements

(1) NOTICE LENGTH:

(a) A facility must provide a resident transferred from the facility a minimum of 30 days prior written notice unless otherwise provided under this section.

(b) A resident may be involuntarily transferred under OAR 411-088-0020(1)(b) (Life or Safety Threat) or 411-088-0020(1)(c) (Behavior Problem) with fewer than 30 days prior written notice if the reason for the transfer constitutes an emergency. However, the facility must give as much prior written notice as the emergency permits.

(c) A resident may be involuntarily transferred under OAR 411-088-0020(1)(d) (Medical Emergency) with no prior notice. However, the facility must give written notice before giving the resident’s bed to another person.

(d) A resident involuntarily transferred under OAR 411-088-0020(1)(g) (Post-Hospital Extended Care Services or Specialized Services) and cared for in the facility for less than 30 days may be transferred with fewer than 30 days prior written notice.

(A) In such cases, the resident must be provided with written notice no shorter than the length of the resident’s current stay in the nursing facility.

(B) The notice may be issued at the time of the resident’s admission or as soon as the length of time for projected course of treatment is estimated.

(C) Section (1)(d) of this rule does not apply if the resident had a right of readmission to the same facility as described in OAR 411-088-0060 prior to the hospital, surgical, or emergency department services.

(e) A facility must provide a resident involuntarily transferred under OAR 411-088-0020(1)(b) or (e) (Governmental Action) a minimum of 14 days prior written notice.

(f) A facility must immediately notify a resident denied the right of return or the right of readmission. The facility must also provide the resident written notice that is mailed (registered or certified) or delivered in person within five days from the date of request for return or readmission. A denial of right of return or readmission is allowable only if there is good cause to believe the resident lacks such right (see OAR 411-088-0050, 411-088-0060, and 411-088-0080).

(g) A facility must provide written notice to a resident involuntarily transferred under OAR 411-088-0020(1)(f) (Termination of Operations as a Nursing Facility).

(A) In the case of voluntary closure, written notice must be provided 60 days prior to facility closure.

(B) In the case of involuntary closure, written notice must be provided as determined by the Department.

(h) A facility must provide written notice to a resident voluntarily transferring from a facility pursuant to this rule and must maintain the signed consent form in the resident’s medical record.

(2) NOTIFICATION LIST. The facility must maintain and keep current in the resident’s record the name, address, and telephone number of the resident’s legal representative, if any, and of any person designated by the resident or the resident’s legal representative to receive notice of a transfer. The facility must also record the name, address, and telephone number of any person who has demonstrated consistent concern for the resident if the resident has no one who is currently involved and who has been designated by the resident.

(3) NOTICE DISTRIBUTION. Notice must be provided to:

(a) The resident or former resident, as appropriate;

(b) All persons required to be listed in the resident’s medical record under section (2) of this rule;

(c) The local unit of the Aging and People with Disabilities Division or Type B Area Agency on Aging. The notice does not need to be provided to the local unit of the Aging and People with Disabilities Division or Type B Area Agency on Aging if the resident is private pay and the resident’s stay in the facility totals 30 days or less; and

(d) The Long-Term Care Ombudsman if there is no one currently involved and designated by the resident. Written notice must be provided to the Long-Term Care Ombudsman In the case of an involuntary transfer under OAR 411-088-0020(1)(f) (Termination of Nursing Facility Operations).

(4) STANDARD NOTICE REQUIRED. Written notice must be provided using Form # 0509 (Notice of Transfer), Form # 0510 (Denial of Readmission/Return), or Form #0509L (Resident Letter Nursing Facility Closure), as appropriate. Forms may be accessed electronically from the Department’s Forms Server (https://aix-xweb1p.state.or.us/es_xweb/FORMS/) or from the Department by request.

(a) The notice provided to a resident and the people required to be listed in the resident’s medical record under section (2) of this rule must be accompanied by a copy of the Aging and People with Disabilities Division’s brochure, “Leaving the Nursing Facility” (Form #9847).

(b) In the case of involuntary transfer under OAR 411-088-0020(1)(f) (Termination of Nursing Facility Operations), Form #0509L (Resident Letter Nursing Facility Closure) must be distributed with Form #0509 (Notice of Transfer).

(5) NOTICE SERVICE. If the person receiving notice as described in section (3) of this rule is a resident at a facility, the facility must personally serve the written notice to the resident. All other notices required by this rule, including notices to former residents, must be either served personally or delivered by registered or certified mail.

Stat. Auth.: ORS 441.055 & 441.615

Stats. Implemented: ORS 441.055, 441.600, 441.605, & 441.615

Hist.: SSD 19-1990, f. 8-29-90, cert. ef. 10-1-90; SSD 8-1993, f. & cert. ef. 10-1-93; SSD 2-1995, f. & cert. ef. 2-15-95; SPD 3-2008, f. & cert. ef. 3-6-08; SPD 38-2013(Temp), f. 10-4-13, cert. ef. 10-7-13 thru 4-4-14; APD 5-2014, f. 3-31-14, cert. ef. 4-1-14

411-088-0080

Informal Conference and Hearing

(1) A resident who is to be involuntarily transferred or refused the right of return or readmission is entitled to an informal conference and hearing as provided in this rule.

(2) CONFERENCE REQUEST.

(a) Upon receipt of a notice, a resident, any designated agency, or person acting on the resident’s or former resident’s behalf, may request an informal conference on the form provided on the brochure, “Leaving the Nursing Facility”.

(A) The request for informal conference must be mailed to the Department within 10 business days of the service or delivery of the notice. The Department shall immediately notify the licensee of the request.

(B) The Department may extend the time allowed for requesting an informal conference if the Department determines that good cause exists for failure to make a timely request.

(C) Any facility management personnel or employee involved in providing nursing or other direct care who receives any oral or written indication of a desire for an informal conference from a resident must immediately notify the facility administrator. The administrator must immediately thereupon provide notification to the Department.

(b) A resident may not be transferred after having requested an informal conference or after facility staff or the licensee has knowledge of any indication of a resident’s desire for an informal conference until:

(A) Disposition of the request has been completed to the satisfaction of all parties; or

(B) Authorization for transfer is provided by a Hearings Officer pursuant to this rule.

(3) INFORMAL CONFERENCE.

(a) The Department shall hold an informal conference as promptly as reasonably possible but in no event later than 10 days after the request is received unless a later date is agreed upon by both the facility and the person or agency requesting the conference. The Department shall give telephone notice (where a telephone number is available) and send written notice of the time and place of the informal conference to the facility and all persons entitled to the notice. The purpose of the informal conference is to resolve the matter without a formal hearing. If a resolution is reached at the informal conference, the resolution shall be reduced to writing and no formal hearing shall be held.

(b) The proceedings shall be conducted at the facility where the resident is located unless an alternate site is agreed upon by both the licensee and the person or agency requesting the informal conference.

(c) If at the end of an informal conference the licensee wishes to proceed with the transfer, the Department shall ask if the resident or any person or agency representing the resident wishes to request a hearing.

(4) HEARING.

(a) A hearing is conducted as a contested case in accordance with the Administrative Procedures Act, ORS Chapter 183, and the rules of the Department adopted there under. Parties to the hearing must be the resident (or former resident) and the licensee. The Hearings Officer is delegated the authority to issue the final order and shall do so.

(b) If, pursuant to section (3) of this rule, the Department receives (orally or in writing) a request for a hearing, the Department shall set the date, time, and place of the hearing as promptly as possible. Unless a later date is agreed upon by both the licensee and the person requesting the hearing, the hearing must be held no later than 30 days after the informal conference.

(c) An expedited hearing must be conducted In the case of an involuntary transfer under OAR 411-088-0020(1)(f) (Termination of Nursing Facility Operations).

(A) To request an expedited hearing, the resident or any agency or person designated to act on the resident’s behalf must verbally request or submit a completed and signed Hearing Request form. The request for an expedited hearing must be received by the Department within 10 business days after an informal conference.

(B) The Department may extend the time allowed for requesting an expedited hearing if the Department determines that good cause exists for failure to make a timely request.

(C) An expedited hearing shall be conducted within 5 business days of request. The final order shall be issued within 48 hours following the hearing.

(d) Nothing herein shall be construed to prohibit, at the election of the Department and with the consent of all interested parties, a hearing immediately following an informal conference.

(e) The Department shall provide all persons and entities listed in OAR 411-088-0070(3) and the licensee with notification of a hearing. The hearing notification shall be served on the parties personally or by registered or certified mail.

(f) At the hearing, the facility must proceed first by presentation of evidence in support of the transfer of the resident or of refusal to provide right of return or readmission of the former resident. The person requesting the hearing must follow the facility by presentation of evidence in support of their objection to the transfer or of the request of right of return or readmission.

(A) In a hearing concerning right of readmission, the only questions raised shall be whether the application was timely, whether the former resident is eligible by means of payment, and whether another person was or is entitled to the bed.

(B) In a hearing concerning right of return, the only questions raised shall be whether full payment is or was available for the period of hospital stay and whether there was authority under OAR 411-088-0050(2) for another person to be given the bed.

(C) In a hearing concerning involuntary transfer under OAR 411-088-0020(1)(f) as a result of termination of nursing facility operations, the only question raised shall be whether the proposed transition plan meets the requirements described in OAR 411-085-0025(2)(d).

(g) The licensee has the burden of establishing that the transfer or denial of return or readmission is permitted by law.

(h) The Hearings Officer shall, in determining the appropriateness and timeliness of an involuntary transfer or a refusal of return or readmission, consider factors including but not limited to the factors listed in OAR 411-088-0030. The Hearings Officer may not approve a transfer:

(A) For medical or welfare reasons (under OAR 411-088-0020(1)(a) through (d)) if the risks of physical or emotional trauma significantly outweighs the risk to the resident or to other residents if no transfer were to occur; or

(B) For any other reason if the transfer presents a substantial risk of morbidity or mortality to the resident.

(i) CONCLUSION OF HEARING. The hearing is concluded by the issuance of findings and an order:

(A) Affirming the transfer of the refusal to provide right of return or readmission;

(B) Granting conditional approval of a transfer when necessary or appropriate for the welfare of the resident. Conditions may include without limitation the occurrence of any or all of the following incidents in preparation for a transfer:

(i) Selecting a location for the resident to be placed consistent with the resident’s need for care and as consistent as possible with the resident’s ties with friends and family, if any;

(ii) Soliciting and encouraging participation of the resident’s friends and family in preparing the resident for transfer;

(iii) Visits by the resident to the proposed site of relocation prior to the actual transfer, accompanied by a person with whom the resident is familiar and comfortable, unless the resident is already familiar with the proposed site;

(iv) Arranging at the proposed site of relocation for continuation (as much as possible) of activities and routines with which the resident has become familiar; and

(v) Ensuring that the resident is afforded continuity in the arrangement of an access to personal items significant to the resident.

(C) Ordering the licensee to retain the resident, readmit the former resident if the resident has been transferred, or provide the former resident with the right of return or readmission;

(D) Ordering the licensee to retain the resident and establishing standards of behavior for family members or other visitors necessary for the welfare of residents; or

(E) Making such further provisions as are reasonably necessary to give full force and effect to any order that a licensee retain or readmit the resident or provide the resident the right of return or readmission.

(j) If the Department approves a transfer subject to one or more conditions pursuant to this rule, the transfer may not occur until the licensee has notified the person requesting the hearing and certified to the Department in writing that all of such conditions have been complied with and the Department has acknowledged to the licensee in writing the receipt and sufficiency of such certification. The Department may, upon request, allow verbal certification and give verbal acknowledgement subject to subsequent certification and acknowledgement in writing.

(5) EXCEPTIONS.

(a) A resident who is to be involuntarily transferred or refused the right of return or readmission as a result of governmental action pursuant to OAR 411-088-0020(1)(b) or (e) is not entitled to a hearing prior to transfer.

(b) A resident who is to be involuntarily transferred as a result of termination of nursing facility operations pursuant to OAR 411-088-0020(1)(f) is entitled to an informal conference and hearing regarding the resident’s proposed transition plan but not regarding transfer from the facility that is terminating operations.

Stat. Auth.: ORS 410.070 & 441.055

Stats. Implemented: ORS 441.055, 441.600 & 441.615

Hist.: SSD 19-1990, f. 8-29-90, cert. ef. 10-1-90; SSD 8-1993, f. & cert. ef. 10-1-93; APD 5-2014, f. 3-31-14, cert. ef. 4-1-14

411-089-0030

Civil Penalties

(1) CONSIDERATIONS. In determining the amount of a civil penalty the Department shall consider:

(a) Any prior violations of statute or rule by the facility or licensee that relates to operation of a nursing facility;

(b) The financial benefits, if any, realized by the facility as a result of the violation, such as costs avoided as a result of not having obtained sufficient staffing, equipment, or supplies;

(c) The gravity of the violation, including the actual and potential threat to health, safety, and well-being of residents, the duration of the threat or number or times the threat occurred, and the number of residents threatened;

(d) The severity of the actual or potential harm caused by the violation, including whether the actual or potential harm included loss of life or serious physical or emotional injury;

(e) The facility’s history of correcting violations and preventing recurrence of violations; and

(f) Exhibit 89-1, Civil Penalty Chart, which is incorporated by reference and is a part of this rule.

(2) SINGLE VIOLATION CIVIL PENALTIES. Violations of any requirement within any part of the following statutes, rules, or sections of the following rules are a violation that may result in a civil penalty after a single occurrence.

(a) Violations involving direct resident care, feeding, or sanitation involving direct resident care, including any violation of:

(A) OAR 411-085-0060 (Specialty Nursing Facilities);

(B) OAR 411-085-0200(2) (Facility Employees);

(C) OAR 411-085-0210 to 411-085-0220 (Facility Policies, Quality Assurance);

(D) OAR 411-085-0360 (Abuse);

(E) OAR 411-086-0010 to 411-086-0020 (Administrator, Director of Nursing Services);

(F) OAR 411-086-0040 (except section (3)) (Admission of Residents);

(G) OAR 411-086-0050 to 411-086-0060 (Day Care, Assessment, and Care Plan);

(H) OAR 411-086-0110 to 411-086-0150 (Nursing Services);

(I) OAR 411-086-0200 to 411-086-0260 (Physician, Dental, Rehabilitative, Activity, Social, Dietary, and Pharmaceutical Services);

(J) OAR 411-086-0300 (except section (6)) (Clinical Records);

(K) OAR 411-086-0310 to 411-086-0360 (Employee Orientation and Training, Disaster Preparation, Infection Control, Smoking, Furnishings, and Equipment);

(L) OAR 411-087-0100(1)(a) & (c) (Repair and Cleanliness); or

(M) OAR 411-087-0440 (Alarm and Nurse Call Systems).

(b) Violation involving failure to provide staff-to-resident ratio, including any violation of:

(A) OAR 411-086-0030 (except section (1)) (RN Care Manager); or

(B) OAR 411-086-0100 (Nursing Staffing).

(c) Violation of any rule adopted pursuant to ORS 441.610, including:

(A) OAR 411-085-0300 to 411-085-0350 (Resident Rights);

(B) OAR 411-086-0040(3) (Advance Directives);

(C) OAR 411-086-0300(6) (Record Retention); or

(D) OAR chapter 411, division 088 (Rights Regarding Transfers).

(d) Violation of ORS 441.605 (Resident Rights) or any general or final order of the Department.

(3) CIVIL PENALTIES REQUIRING REPEAT VIOLATIONS. Violation of any Department rule not listed in section (2) of this rule is subject to a civil penalty under the following circumstances:

(a) Such violation is determined to exist on two consecutive surveys, inspections, or visits; and

(b) The Department prescribed a reasonable time for elimination of the violation at the time of, or subsequent to, the first citation.

(4) AMOUNT OF CIVIL PENALTY.

(a) Violation of any requirement or order listed in section (2) of this rule is subject to a civil penalty of not more than $500 for each day the violation occurs, unless otherwise provided by this section;

(b) Violation of any requirement listed in section (3) of this rule is subject to a civil penalty of not more than $500 per violation, unless otherwise provided by this section;

(c) Violation involving resident abuse that resulted in serious injury or death is subject to a civil penalty of not less than $500 nor more than $1,000, or as otherwise required by federal law (ORS 441.995(3) and 441.715(1)(c));

(d) The Department shall impose a civil penalty of not less than $2,500 for each occurrence of substantiated abuse that resulted in the death, serious injury, rape, or sexual abuse of a resident. The civil penalty may not exceed $15,000 in any 90-day period.

(A) To impose this civil penalty, the Department shall establish that:

(i) The abuse arose from deliberate or other than accidental action or inaction;

(ii) The conduct resulting in the abuse was likely to cause death, serious injury, rape, or sexual abuse of a resident; and

(iii) The person substantiated for the abuse had a duty of care toward the resident.

(B) For the purposes of this civil penalty, the following definitions apply:

(i) “Serious injury” means a physical injury that creates a substantial risk of death or that causes serious disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.

(ii) “Rape” means rape in the first, second, or third degree as described in ORS 163.355, 163.365, and 163.375.

(iii) “Sexual abuse” means any form of nonconsensual sexual contact, including but not limited to unwanted or inappropriate touching, sodomy, sexual coercion, sexually explicit photographing, or sexual harassment. The sexual contact must be in the form of any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party.

(iv) “Other than accidental” means failure on the part of the licensee, or licensee’s employees, agents, or volunteers for whose conduct licensee is responsible, to comply with applicable Oregon Administrative Rules.

(5) ADMINISTRATOR SANCTIONS — NURSING FACILITY CLOSURES. Any individual who is or was the administrator of a facility and fails or failed to comply with the requirements at OAR 411-085-0025(2)(d)(e)(f)(h), 411-085-0025(3)(a) or 411-088-0070(1)(g), (3)(d) or (4):

(a) Are subject to a civil monetary penalty as follows:

(A) A minimum of $500 for the first offense;

(B) A minimum of $1,500 for the second offense; and

(C) A minimum of $3,000 for the third and subsequent offenses;

(b) May be subject to exclusion from participation in any Federal health care program as defined in section 1128B(f) of the Patient Protection and Affordable Care Act; and

(c) Are subject to any other penalties that may be prescribed by law.

(6) PAYMENT TO BE CONSIDERED ADMISSION OF VIOLATION. Unless the Department agrees otherwise, for purposes of history of the facility, any payment of a civil penalty is treated by the Department as a violation of the statutes or rules alleged in the civil penalty notice for which the civil penalty was paid for.

(7) All penalties recovered are deposited in the Quality Care Fund.

(8) NOTICE. The Department’s notice of its intent to impose a civil penalty shall include the statements set out in OAR 411-089-0040(3)(a)–(f) and shall also include a statement that if the licensee fails to request a hearing within 10 days of the date the notice was mailed, the licensee shall have waived the right to a hearing.

(9) HEARING REQUEST.

(a) If the Department issues a notice of intent to impose a civil penalty, the licensee is entitled to a hearing in accordance with ORS chapter 183.

(b) A request for a hearing must be in writing and must be received by the Department within 10 days of the date the notice of intent to impose a civil penalty was mailed to the licensee. The hearing request must include an admission or denial of each factual matter alleged in the notice and must affirmatively allege a short plain statement of each relevant affirmative defense the licensee may have. The Department may extend the time allowed for submission of the admission or denial and affirmative defenses for up to 30 calendar days.

(10) DEFAULT ORDER. If a hearing is not timely requested or if the licensee withdraws a hearing request or fails to appear at a scheduled hearing, the Department may enter a final order by default imposing the civil penalty. In the event of a default, the Department’s file on the subject of the civil penalty automatically becomes a part of the record for purposes of proving the Department’s prima facie case.

EXHIBIT 89-1 Civil Penalty Chart

I. RANGE OF CIVIL PENALTIES.

A. Abuse: ORS 441.715(1)(c) — $2,500–$15,000.

B. Abuse: ORS 441.995(3) — $500–$1,000.

C. Injury, Serious1 — $500–$1,000.

D. Injury, Moderate2 — $300–$500.

E. Injury, Minor3 — $100–$300.

F. Injury, Potential — $100–$300.

G. Other — $100–$500.

a. Involuntary seclusion.

b. Corporal punishment.

c. Verbal abuse.

d. Financial abuse (consider amount taken/expended).

e. Emotional abuse.

f. Loss of dignity.

II. MODIFIERS (The history for the 24 months prior to the incident is used to determine whether penalty is assessed at the upper or lower penalty ranges listed above).

A. Citation of “related problem”4 through survey, complaint investigation, or letter (increases penalty).

B. Civil penalty issues for “related problem” (increases penalty).

C. Facility history of preventing, correcting other violations. If the Department determines the licensee took significant action to correct “related problem,” the Department may waive part or all of the modifier (IIA & IIB).

D. Facility history relating to current violation. The Department may increase the penalty if the facility fails to correct the situation or eliminate the threat after being made aware of the situation or incident. Decrease or suspend penalty after evaluating facility response to incident and efforts to eliminate recurrence.

E. Extended duration. If the Department determines the licensee or facility staff had opportunity to correct the deficiency after it first occurred but action was delayed, the Department may either increase the civil penalty by up to 100% or issue the civil penalty on a “per day” basis.

F. Facility Financial Benefit. The Department may increase the base civil penalty or the modifier based upon the Department’s estimate of the cost savings to the facility.

G. Complaint is self-reported (reduces penalty).

H. Multiple residents: Potential or actual injury (increases penalty).

1 Serious injury means permanent physical injury that creates a substantial risk of death or that causes serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ.

2 Moderate Injury means an injury, which would ordinarily be temporary loss of functioning in a typical person or illness or pain lasting more than 24 hours, even if controlled by medication.

3 Minor injury means an injury resulting in temporary discomfort or pain, treated in-house, including medication or treatment or bed rest for short duration, ordinarily not more than 24-48 hours.

4 Related problem means the same staff or resident involved or the same rule, same harm, or same underlying cause.

Stat. Auth.: ORS 441.615, 441.637, 441.710, 441.715 & 441.990

Stats. Implemented: ORS 410.070, 441.055, 441.615, 441.637, 441.715 & 441.990

Hist.: SSD 19-1990, f. 8-29-90, cert. ef. 10-1-90; SSD 8-1993, f. & cert. ef. 10-1-93; SSD 1-1995, f. 1-30-95, cert. ef. 2-1-95; SPD 24-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 11-2010, f. 6-30-10, cert. ef. 7-1-10; APD 5-2014, f. 3-31-14, cert. ef. 4-1-14


Rule Caption: Licensure of Adult Foster Homes for Adults who are Older or Adults with Physical Disabilities

Adm. Order No.: APD 6-2014

Filed with Sec. of State: 3-31-2014

Certified to be Effective: 4-1-14

Notice Publication Date: 3-1-2014

Rules Amended: 411-050-0602, 411-050-0610, 411-050-0625, 411-050-0630, 411-050-0640, 411-050-0642, 411-050-0645, 411-050-0650, 411-050-0660, 411-050-0685

Rules Repealed: 411-050-0640(T)

Subject: The Department of Human Services (Department) is permanently amending the following rules in OAR chapter 411, division 050 for the licensure of adult foster homes for adults who are older or adults with physical disabilities:

   OAR 411-050-0602: Creates a new tool for adult foster home licensees called “floating resident manager.”

   OAR 411-050-0610:

   - Deletes a number of requirements that allowed the Department to routinely request financial information.

   - Limits the financial information required at the time of the initial application.

   - Provides a new method (Verification of Financial Resources form) for the Department to obtain additional financial information at the time of the initial license application.

   OAR 411-050-0625:

   - Requires the Department to request additional financial information, but only the minimum necessary, to verify compliance with these rules and describes circumstances that may warrant the need for additional financial information.

   - Enables a floating resident manager to work in more than one non-exempt jurisdiction without having to complete more than one local licensing authority’s adult foster home orientation.

   OAR 411-050-0630: Requires a floating resident manager to meet the classification requirements of the home as a licensee or resident manager.

   OAR 411-050-0640: Limits the financial information required at the time of license renewal.

   OAR 411-050-0642: Clarifies that a variance may not be granted for the minimum age or training requirements of a floating resident manager.

   OAR 411-050-0645:

   - Enables a licensee to employ a floating resident manager to work in an adult foster home on a temporary basis when the regular caregiver is no longer employed. Also enables the licensee to change the status of an approved floating resident manager to a regular, live-in resident manager when there is a change in primary caregiver.

   - Adds the requirement for weekly menus to be posted per ORS 443.738(5) and documentation of any meal substitutions.

   - Requires retention of the menus for the most recent 12 months of the adult foster home’s operation, rather than three years as before.

   ORS 411-050-0650

   - Clarifies a floating resident manager may not sleep in a living area or share a resident’s bedroom.

   ORS 411-050-0660

   - Enables licensees to employ floating resident managers in homes that are licensed to provide ventilator-assisted care.

   ORS 411-050-0685

   - Incorporates floating resident manager by referring to qualified caregiver rather than listing all specific caregivers.

   The permanent rules also make permanent temporary rule language that became effective October 16, 2013 and reflect general housekeeping such as correcting spelling errors and mistyped references and removing repetitious text.

Rules Coordinator: Kimberly Colkitt-Hallman—(503) 945-6398

411-050-0602

Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 050:

(1) “AAA” means an Area Agency on Aging, which is an established public agency within a planning and service area designated under Section 305 of the Older Americans Act that has responsibility for local administration of programs within the Department of Human Services. For the purpose of these rules, Type B AAAs contract with the Department to perform specific activities in relation to licensing adult foster homes including processing applications, conducting inspections and investigations, issuing licenses, and making recommendations to the Department regarding adult foster home license denial, revocation, suspension, non-renewal, and civil penalties.

(2) “Abuse” means abuse as defined in OAR 411-020-0002 (Adult Protective Services).

(3) “Activities of Daily Living (ADL)” mean the personal, functional activities defined in OAR 411-015-0006 (Long-term Care Service Priorities for Individuals Served) required by an individual for continued well-being, which are essential for health and safety.

(4) “Adult Foster Home (AFH)” means any family home or other facility in which residential care is provided in a home-like environment for compensation to five or fewer adults who are not related to the licensee, resident manager, or floating resident manager, by blood, marriage, or adoption and who are 65 years of age or older or an adult with a physical disability. For the purpose of these rules, adult foster home does not include any house, institution, hotel, or other similar living situation that supplies room or board only, if no resident thereof requires any element of care. “Facility” and “Home” are synonymous with “Adult Foster Home”.

(5) “Advance Directive” or “Advance Directive for Health Care” means the legal document signed by a resident that provides health care instructions in the event the resident is no longer able to give directions regarding his or her wishes. The directive gives the resident the means to control his or her own health care in any circumstance. “Advance Directive for Health Care” does not include Physician Orders for Life-Sustaining Treatment (POLST).

(6) “Applicant” means a person who completes an application for an adult foster home license or who completes an application to become a resident manager, floating resident manager, or shift caregiver. “Applicant” is synonymous with “Co-applicant”.

(7) “Background Check” means a criminal records check and abuse check as defined in OAR 407-007-0210 (Criminal Records and Abuse Check for Providers).

(8) “Back-Up Provider” means a licensee, approved resident manager, or approved floating resident manager who does not live in the home, who has agreed to oversee the operation of an adult foster home, of the same license classification or level, in the event of an emergency.

(9) “Behavioral Interventions” mean those interventions that modify a resident’s behavior or a resident’s environment.

(10) “Board of Nursing Rules” means the standards for Registered Nurse Teaching and Delegation to Unlicensed Persons according to the statutes and rules of the Oregon State Board of Nursing, ORS 678.010 to 678.445 and OAR chapter 851, division 047.

(11) “Care” means the provision of assistance with activities of daily living to promote a resident’s maximum independence and enhance the resident’s quality of life. Care includes, but is not limited to, assistance with bathing, dressing, grooming, eating, money management, recreation, and medication management excluding assistance with self-medication.

(12) “Caregiver” means any person responsible for providing care and services to residents, including the licensee, resident manager, floating resident manager, shift caregivers, and any temporary, substitute, or supplemental staff or other person designated to provide care and services to residents.

(13) “Care Plan” means a licensee’s written description of a resident’s needs, preferences, and capabilities, including by whom, when, and how often care and services are to be provided.

(14) “Centers for Medicare and Medicaid Services (CMS)” means the federal agency within the United States Department of Health and Human Services responsible for the administration of Medicaid and the Health Insurance Portability and Accountability Act (HIPAA).

(15) “Classification” means a designation of license assigned to a licensee based on the qualifications of the licensee, resident manager, floating resident manager, and shift caregivers, as applicable.

(16) “Co-Applicant” is synonymous with “Applicant” as defined in this rule.

(17) “Co-Licensee” is synonymous with “Licensee” as defined in this rule.

(18) “Compensation” means monetary or in-kind payments by or on behalf of a resident to a licensee in exchange for room, board, care, and services. Compensation does not include the voluntary sharing of expenses between or among roommates.

(19) “Complaint” means an allegation of abuse, a violation of these rules, or an expression of dissatisfaction relating to a resident or the condition of an adult foster home.

(20) “Condition” means a provision attached to a new or existing license that limits or restricts the scope of the license or imposes additional requirements on the licensee.

(21) “Consumer” means an individual eligible for Medicaid services for whom case management services are provided by the Department.

(22) “Criminal Records and Abuse Check Rules” refers to OAR 407-007-0200 to 407-007-0370.

(23) “Day Care” means care, assistance, and supervision of an individual who does not stay overnight.

(24) “Delegation” means the process by which a registered nurse teaches and supervises a skilled nursing task.

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

(26) “Director” means the Director of the Department of Human Services or that person’s designee.

(27) “Disability” means a physical, cognitive, or emotional impairment which, for an individual, constitutes or results in a functional limitation in one or more activities of daily living.

(28) “Disaster” means a sudden emergency occurrence beyond the control of the licensee, whether natural, technological, or man-made that renders the licensee unable to operate the facility or renders the facility uninhabitable on a temporary, extended, or permanent basis.

(29) “Emergency Preparedness Plan” means a written procedure that identifies a facility’s response to an emergency or disaster for the purpose of minimizing loss of life, mitigating trauma, and to the extent possible, maintaining services for residents and preventing or reducing property loss.

(30) “Entity” means an individual, a trust or estate, a partnership, a corporation (including associations, joint stock companies, and insurance companies), a state, or a political subdivision or instrumentality, including a municipal corporation.

(31) “Exempt Area” means a county where there is a county agency that provides similar programs for licensing and inspection of adult foster homes that the Director finds are equal to or superior to the requirements of ORS 443.705 to 443.825 and that the Director has exempted from the license, inspection, and fee provisions of 443.705 to 443.825. Exempt area county licensing rules require review and approval by the Director prior to implementation.

(32) “Facility” is synonymous with “Adult Foster Home” as defined in this rule.

(33) “Family Member” means husband or wife, natural parent, child, sibling, adopted child, adoptive parent, adoptive sibling, stepparent, stepchild, stepbrother, stepsister, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild, aunt, uncle, niece, nephew, or first cousin.

(34) “Final Point of Safety” means a designated assembly area located on a public sidewalk or street not less than 50 feet away from an adult foster home where occupants of the home evacuate to in the event of an emergency.

(35) “Floating Resident Manager” means an employee of the licensee approved by the local licensing authority, who under the direction of the licensee, is directly responsible for the care of residents in one or more adult foster homes owned by that licensee. A floating resident manager is not required to live in any one adult foster home owned by his or her employer except on a temporary basis, as directed by the licensee, when the regularly scheduled caregiver is unavailable.

(36) “Home” means the physical structure in which residents live. “Home” is synonymous with “Adult Foster Home” as defined in this rule.

(37) “Home-like” means an environment that promotes the dignity, security, and comfort of residents through the provision of personalized care and services, and encourages independence, choice, and decision-making by the residents.

(38) “House Policies” means the written and posted statements addressing house activities in an adult foster home.

(39) “Indirect Ownership Interest” means an ownership interest in an entity that has an ownership interest in the disclosing entity. Indirect ownership interest includes an ownership interest in any entity that has an indirect ownership interest in the disclosing entity.

(40) “Initial Point of Safety” means a designated area that has unobstructed direct access to a public sidewalk or street located not less than 25 feet away from an adult foster home where occupants of the home evacuate to in the event of an emergency and for the purpose of conducting evacuation drills.

(41) “Investigative Authority” means the Office of Adult Abuse Prevention and Investigation, local Department offices, and Area Agencies on Aging that contract with the Department to provide adult protective services to adults who are older or adults with physical, mental, or developmental disabilities.

(42) “Legal Representative” means a person who has the legal authority to act for a resident.

(a) For health care decisions, the legal representative is a court-appointed guardian, a health care representative under an Advance Directive for Health Care, or a power of attorney for health care.

(b) For financial decisions, the legal representative is a legal conservator, an agent under a power of attorney, or a representative payee.

(43) “Level” means the designation of ventilator-assisted care assigned to an adult foster home license based on the qualifications of the licensee, resident manager, floating resident manager, and shift caregivers, as applicable.

(44) “Licensed Health Care Professional” means a person who possesses a professional medical license that is valid in Oregon. Examples include but are not limited to a registered nurse (RN), nurse practitioner (NP), licensed practical nurse (LPN), medical doctor (MD), osteopathic physician (DO), respiratory therapist (RT), physical therapist (PT), physician assistant (PA), or occupational therapist (OT).

(45) “Licensee” means the person who was issued a license, whose name is on the license, and who is responsible for the operation of an adult foster home. The licensee of the adult foster home does not include the owner or lessor of the building in which the adult foster home is situated unless the owner or lessor of the building is also the operator.

(46) “Limited Adult Foster Home” means a home that provides care and services for compensation to a specific individual who is unrelated to the licensee but with whom the licensee has an established relationship of no less than one year.

(47) “Liquid Resource” means cash or those assets that may readily be converted to cash such as a life insurance policy that has a cash value, stock certificates, or a guaranteed line of credit from a financial institution.

(48) “Local Licensing Authority” means the local Department offices and Area Agencies on Aging that contract with the Department to perform specific functions of the adult foster home licensing process.

(49) “Nursing Care” means the practice of nursing by a licensed nurse, including tasks and functions relating to the provision of nursing care that are taught or delegated under specified conditions by a registered nurse to a person other than licensed nursing personnel, as governed by ORS chapter 678 and rules adopted by the Oregon State Board of Nursing in OAR chapter 851.

(50) “Occupant” means any person residing in or using the facilities of an adult foster home including residents, licensees, resident manager, friends or family members, day care individuals, and room and board tenants. A floating resident manager who resides in an adult foster home on a temporary basis is considered an occupant.

(51) “Older” means any person at least 65 years of age.

(52) “Ombudsman” means the Oregon Long-Term Care Ombudsman or a designee appointed by the Long-Term Care Ombudsman to serve as a representative of the Ombudsman Program in order to investigate and resolve complaints on behalf of adult foster home residents.

(53) “Operator” is synonymous with “Licensee” as defined in this rule.

(54) “Ownership Interest” means the possession of equity in the capital, stock, or profits of an adult foster home. Persons with an ownership or control interest mean a person or corporation that:

(a) Has an ownership interest totaling 5 percent or more in a disclosing entity;

(b) Has an indirect ownership interest equal to 5 percent or more in a disclosing entity;

(c) Has a combination of direct and indirect ownership interests equal to 5 percent or more in a disclosing entity;

(d) Owns an interest of 5 percent or more in any mortgage, deed of trust, note, or other obligation secured by the disclosing entity if that interest equals at least 5 percent of the value of the property or assets of the disclosing entity;

(e) Is an officer or director of a disclosing entity that is organized as a corporation; or

(f) Is a partner in a disclosing entity that is organized as a partnership.

(55) “Physical Restraint” means any manual method or physical or mechanical device, material, or equipment attached to, or adjacent to, a resident’s body that the resident may not easily remove and that restricts freedom of movement or normal access to his or her body. Physical restraints include but are not limited to wrist or leg restraints, soft ties or vests, hand mitts, wheelchair safety bars, lap trays, and any chair that prevents rising (such as a Geri-chair). Side rails (bed rails) are considered restraints when they are used to prevent a resident from getting out of a bed. The side rail is not considered a restraint when a resident requests a side rail for the purpose of assistance with turning.

(56) “Prescribing Practitioner” means a physician, nurse practitioner, physician assistant, chiropractor, dentist, ophthalmologist, or other healthcare practitioner with prescribing authority.

(57) “Primary Caregiver” means a qualified licensee or resident manager, who lives in the home, personally provides care and services, and ensures the health and safety of residents a minimum of five consecutive days per week. More than one person who meets this criteria may be considered a primary caregiver as specified below:

(a) Co-licensees working three and four consecutive days and nights per week;

(b) Two approved resident managers working three and four consecutive days and nights per week; or

(c) A licensee and an approved resident manager working three and four consecutive days and nights per week.

(58) “P.R.N. (pro re nata)” means those medications and treatments that have been ordered by a qualified practitioner to be administered as needed.

(59) “Provider” means any person operating an adult foster home (i.e., licensee, resident manager, floating resident manager, or shift caregiver). “Provider” does not include substitute caregivers or the owner or lessor of the building in which the adult foster home is situated unless the owner or lessor is also the operator of the adult foster home.

(60) “Provisional License” means a 60-day license issued in an emergency situation when a licensed provider is no longer overseeing the operation of an adult foster home. A provisional license is issued to a qualified person who meets the standards of OAR 411-050-0625 and 411-050-0630 except for completing the training and testing requirements. (See 411-050-0635)

(61) “Psychoactive Medications” mean various medications used to alter mood, anxiety, behavior, or cognitive processes. For the purpose of these rules, psychoactive medications include but are not limited to antipsychotics, sedatives, hypnotics, and antianxiety medications.

(62) “Qualified Entity Initiator (QEI)” has the meaning set forth in OAR 407-007-0210 (Criminal Records and Abuse Checks for Providers).

(63) “Relative” means those persons identified as family members as defined in this rule.

(64) “Reside” means for a person to live in an adult foster home for a permanent or extended period of time. For the purpose of a background check, a person is considered to reside in a home if the person’s visit is four weeks or greater.

(65) “Resident” means an adult who is older or an adult with a physical disability who is receiving room and board and care and services for compensation in an adult foster home on a 24-hour day basis.

(66) “Resident Manager” means an employee of the licensee, approved by the local licensing authority, who lives in the adult foster home and is directly responsible for the care of the residents.

(67) “Resident Rights” or “Rights” means civil, legal, or human rights including but not limited to those rights listed in the Adult Foster Home Residents’ Bill of Rights. (See ORS 443.739 and OAR 411-050-0655)

(68) “Residential Care” means the provision of care on a 24-hour day basis.

(69) “Room and Board” means receiving compensation for the provision of meals, a place to sleep, laundry, and housekeeping to adults who are older or adults with physical disabilities and who do not need assistance with activities of daily living. Room and board facilities for two or more persons are required to register with the Department under the rules in OAR chapter 411, division 068, unless registered with the local authority having jurisdiction. Adult foster homes with room and board tenants are not subject to OAR chapter 411, division 068.

(70) “Screening” means the evaluation process used to identify an individual’s ability to perform activities of daily living and address health and safety concerns.

(71) “Self-Administration of Medication” means the act of a resident placing a medication in or on his or her own body. The resident identifies the medication, the time and manner of administration, and places the medication internally or externally on his or her own body without assistance.

(72) “Self-Preservation” in relation to fire and life safety means the ability of a resident to respond to an alarm without additional cues and reach a point of safety without assistance.

(73) “Services” mean activities that help the residents develop skills to increase or maintain their level of functioning or assist the residents to perform personal care, activities of daily living, or individual social activities.

(74) “Shift Caregivers” mean caregivers who, by written variance of the local licensing authority, are responsible for providing care for regularly scheduled periods of time, such as 8 or 12 hours per day, in homes where there is no licensee or resident manager living in the home.

(75) “Subject Individual” means:

(a) Any person 16 years of age or older including:

(A) All licensed adult foster home providers and provider applicants;

(B) All persons intending to work in or currently working in an adult foster home including but not limited to direct caregivers and individuals in training;

(C) Volunteers if allowed unsupervised access to residents; and

(D) Occupants, excluding residents, residing in or on the premises of the proposed or currently licensed adult foster home including:

(i) Household members;

(ii) Room and board tenants; and

(iii) Persons visiting for four weeks or greater.

(b) “Subject Individual” does not apply to:

(A) Residents of the adult foster home or the residents’ visitors;

(B) A person who lives or works on the adult foster home premises who does not:

(i) Have regular access to the home for meals;

(ii) Have regular use of the adult foster home’s appliances or facilities; or

(iii) Have unsupervised access to the residents or the residents’ personal property.

(C) A person providing services to the residents that is employed by a private business not regulated by the Department.

(76) “Substantial Compliance” means a level of compliance with these rules where any deficiencies pose no greater risk to resident health or safety than the potential for causing minor harm.

(77) “Substitute Caregiver” means any person other than the licensee, resident manager, floating resident manager, or shift caregiver who provides care and services in an adult foster home under the jurisdiction of the Department.

(78) “Tenant” means any individual who is residing in an adult foster home who receives services such as meal preparation, laundry, and housekeeping.

(79) “These Rules” mean the rules in OAR chapter 411, division 050.

(80) “Variance” means an exception from a regulation or provision of these rules in accordance with OAR 411-050-0642.

(81) “Ventilator Assisted Care” means the provision of mechanical assistance to replace spontaneous breathing. Devices used include but are not limited to, mechanical ventilators, manual ventilators, and positive airway pressure ventilators.

Stat. Auth.: ORS 410.070, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, & 443.790

Stats. Implemented: ORS 443.001 to 443.004, 443.705 to 443.825, 443.875, & 443.991

Hist.: SSD 14-1985, f. 12-31-85, ef. 1-1-86; SSD 11-1988, f. 10-18-88, cert. ef. 11-1-88; SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1996, f. 3-29-96, cert. ef. 4-1-96; SDSD 4-2001, f. & cert. ef. 3-1-01; SPD 31-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 22-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 9-2010, f. 6-30-10, cert. ef. 7-1-10; Renumbered from 411-050-0400, SPD 33-2013, f. 8-30-13, cert. ef. 9-1-13; APD 6-2014, f. 3-31-14, cert. ef. 4-1-14

411-050-0610

Initial License Application and Fees

(1) The applicant must complete the Department’s application form for the specific type of license requested and submit the application form to the local licensing authority with the non-refundable fee.

(a) The application is not complete until all of the required information is submitted to the local licensing authority. Incomplete applications are void after 60 calendar days from the date the local licensing authority receives the application form and non-refundable fee and the Department shall deny the application if not withdrawn.

(b) Failure to provide accurate information may result in the denial of the application.

(2) A separate application is required for each location where an adult foster home is to be operated.

(3) The license application must include:

(a) Complete contact information for the applicant including:

(A) A mailing address if different from the proposed adult foster home; and

(B) A business address for electronic mail.

(b) Verification of attendance at a Department-approved orientation program conducted by the local licensing authority responsible for the licensing of the proposed adult foster home and successful completion of the Department’s Ensuring Quality Care Course and examination. (See OAR 411-050-0625);

(c) The maximum resident capacity requested;

(d) Identification of:

(A) Any relatives needing care;

(B) The maximum number of any room and board tenants;

(C) The maximum number of day care individuals; and

(D) The names of any other occupants in the home.

(e) The classification being requested with information and supporting documentation regarding qualifications, relevant work experience, and training of staff as required by the Department. To request a Class 3 license, the license application must include:

(A) Proof of at least three years of full time experience providing direct care to adults who are older or adults with physical disabilities and who required full assistance in four or more of activities of daily living; and

(B) Current contact information from at least two licensed health care professionals who have direct knowledge of the applicant’s abilities and past experience as a caregiver; or

(C) A copy of the applicant’s current license as a health care professional in Oregon, if applicable.

(f) A Health History and Physician or Nurse Practitioner’s Statement (form SDS 903) regarding the applicant’s ability to provide care;

(g) FINANCIAL INFORMATION. A completed Financial Information Sheet (form SDS 448A).

(A) An applicant must have the financial ability and maintain sufficient liquid resources to pay the operating costs of an adult foster home for at least two months without solely relying on potential resident income.

(B) Documentation of two months of liquid resources must include:

(i) The Department’s current Verification of Financial Resources form (SDS 0448F) completed and stamped or notarized by the applicant’s financial institution; or

(ii) Documentation on letterhead of the applicant’s financial institution, which includes:

(I) The last four digits of the applicant’s account number;

(II) The name of the account holder and, if the account is not in the applicant’s name, verification the applicant has access to the account’s funds;

(III) The highest and lowest balances for each of the most recent three full months; and

(IV) The number of any non-sufficient fund (NSF) payments in each of the last three full months, if any; or

(iii) Demonstration of cash on hand equal to a minimum of two months of operating expenses.

(C) If an applicant uses income from another adult foster home to document possession of at least two months of operating expenses, the applicant must demonstrate the financial ability and maintain sufficient liquid resources to pay the operating costs of each home for at least two months without solely relying on potential resident income.

(h) If the home is leased or rented, a copy of the completed lease or rental agreement. The agreement must be a standard lease or rental agreement for residential use and include the following:

(A) The owner and landlord’s name;

(B) Verification that the rent is a flat rate; and

(C) The signatures of the landlord and applicant and the date signed;

(i) If the applicant is purchasing or owns the home, verification of purchase or ownership;

(j) Documentation of the initiation of a background check or a copy of an approved background check for each subject individual as defined in OAR 411-050-0602;

(k) A current and accurate floor plan that indicates:

(A) The size of rooms;

(B) Which bedrooms are to be used by residents, the licensee, caregivers, for day care, and room and board tenants, as applicable;

(C) The location of all the exits on each level of the home, including emergency exits such as windows;

(D) The location of any wheelchair ramps;

(E) The location of all fire extinguishers, smoke alarms, and carbon monoxide alarms;

(F) The planned evacuation routes, initial point of safety, and final point of safety; and

(G) Any designated smoking areas in or on the adult foster home premises.

(l) If requesting a license to operate more than one home, a plan covering administrative responsibilities and staffing qualifications for each home;

(m) A $20 per bed non-refundable fee for each non-relative resident;

(n) Three personal references for the applicant who are not family members as defined in OAR 411-050-0602. Current or potential licensees and co-workers of current or potential licensees are not eligible as personal references;

(o) If the applicant intends to use a resident manager, floating resident manager, or shift caregivers, the Department’s supplemental application (form SDS 448B) completed by the applicant, as appropriate; and

(p) Written information describing the operational plan for the adult foster home including:

(A) The use of substitute caregivers and other staff;

(B) A plan of coverage for the absence of the primary caregiver; and

(C) The name of a qualified back-up provider, approved resident manager, or approved floating resident manager who does not live in the home but has been oriented to the home. The applicant must also submit a signed agreement with the listed back-up provider and maintain a copy in the facility records.

(4) After receipt of the completed application materials including the non-refundable fee, the local licensing authority must investigate the information submitted including pertinent information received from outside sources, inspect the home, and conduct a personal interview with the applicant.

(5) The Department shall deny the issuance of a license if cited violations from the home inspection are not corrected within the time frames specified by the local licensing authority.

(6) The applicant may withdraw his or her application at any time during the application process by written notification to the local licensing authority.

(7) An applicant whose license has been revoked, non-renewed, voluntarily surrendered during a revocation or non-renewal process, or whose application for licensure has been denied, shall not be granted a new license by the local licensing authority for a period of not less than one year from the date the action was final, or for a longer period if specified in the final order.

(8) All moneys collected under ORS 443.725 to 443.825 are paid to the Quality Care Fund.

Stat. Auth.: ORS 410.070, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, & 443.790

Stats. Implemented: ORS 443.001 to 443.004, 443.705 to 443.825, 443.875, & 443.991

Hist.: SSD 14-1985, f. 12-31-85, ef. 1-1-86; SSD 11-1988, f. 10-18-88, cert. ef. 11-1-88; SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1996, f. 3-29-96, cert. ef. 4-1-96; SDSD 4-2001, f. & cert. ef. 3-1-01; SPD 31-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 22-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 9-2010, f. 6-30-10, cert. ef. 7-1-10; Renumbered from 411-050-0410, SPD 33-2013, f. 8-30-13, cert. ef. 9-1-13; APD 6-2014, f. 3-31-14, cert. ef. 4-1-14

411-050-0625

Qualification and Training Requirements

(1) APPLICANT AND LICENSEE QUALIFICATIONS. An adult foster home applicant and licensee must meet and maintain the requirements specified in this section. An adult foster home applicant and licensee must:

(a) Live in the home that is to be licensed at least five days and nights per week and function as the primary caregiver as defined in OAR 411-050-0602 unless:

(A) There is, or shall be upon licensure, an approved resident manager who lives in the home and works five consecutive days and nights per week as the primary caregiver; or

(B) There is, or shall be upon licensure, two approved primary caregivers who live in the home and work three and four consecutive days and nights per week respectively; or

(C) A variance for shift caregivers has been granted according to section (5) of this rule.

(b) Subsections (a)(A), (B), and (C) of this section are not intended to prohibit the occasional and temporary absence of the primary caregiver from the adult foster home;

(c) Be at least 21 years of age;

(d) Possess physical health, mental health, good judgment, and good personal character, including truthfulness, determined necessary by the Department to provide 24-hour care for adults who are older or adults with physical disabilities. An applicant and licensee must have a statement from a physician, nurse practitioner, or physician assistant indicating that the applicant or licensee is physically, cognitively, and emotionally capable of providing care to residents. An applicant or licensee with documented history or substantiated complaints of substance abuse or mental illness must provide evidence satisfactory to the Department of successful treatment, rehabilitation, or references regarding current condition;

(e) Have an approved background check annually in accordance with OAR 411-050-0620 and maintain that approval as required;

(f) Be literate in the English language and demonstrate the ability to comprehend and communicate in English orally and in writing with the residents and the residents’ family members or representatives, emergency personnel (e.g., emergency operator, law enforcement, paramedics, and fire fighters), licensed health care professionals, case managers, Department and local licensing authority staff, and others involved in the care of the residents;

(g) Be able to respond appropriately to emergency situations at all times;

(h) Have a clear understanding of his or her responsibilities, knowledge of the residents’ care plans, and the ability to provide the care specified for each resident; and

(i) Not be listed on the Office of Inspector General’s or General Services Administration’s Exclusion Lists.

(2) APPLICANT AND LICENSEE TRAINING REQUIREMENTS.

(a) Applicants and licensees must have the education, experience, and training to meet the requirements of the requested classification of the home (See OAR 411-050-0630).

(b) A potential applicant or applicant must complete the following training requirements prior to obtaining a license:

(A) Attend a Department-approved orientation program conducted by the local licensing authority responsible for the licensing of the proposed adult foster home;

(B) Attend the Department’s Ensuring Quality Care Course and pass the examination to meet application requirements for licensure;

(i) Potential applicants and applicants who fail the first examination may take the examination a second time, however successful completion of the examination must take place within 90 calendar days of the end of the Department’s Ensuring Quality Care Course.

(ii) Potential applicants and applicants who fail a second examination must retake the Department’s Ensuring Quality Care Course prior to repeating the examination.

(C) Comply with the Department’s September 6, 2012 student policies for the Department’s Ensuring Quality Care Course; and

(D) Have current CPR and First Aid certification.

(i) Accepted CPR and First Aid courses must be provided or endorsed by the American Heart Association, the American Red Cross, the American Safety and Health Institute, or MEDIC First Aid.

(ii) CPR or First Aid courses conducted online are only accepted by the Department when an in-person skills competency check is conducted by a qualified instructor endorsed by the American Heart Association, the American Red Cross, the American Safety and Health Institute, or MEDIC First Aid.

(3) FINANCIAL REQUIREMENTS. A licensee applicant and licensee must have the financial ability and maintain sufficient liquid resources to pay the operating costs of the adult foster home for at least two months without solely relying on potential resident income.

(a) If an initial license applicant is unable to demonstrate the financial ability and resources required by this section, the Department may require the applicant to furnish a financial guarantee such as a line of credit or guaranteed loan to fulfill the requirements of this rule.

(b) If at any time there is reason to believe an applicant or licensee may not have sufficient financial resources to operate the home in compliance with these rules, the local licensing authority may request additional documentation, which may include verification of the applicant’s or licensee’s ability to readily access the requested funds. Circumstances that may prompt the request of additional financial information include but are not limited to reports of insufficient food, inadequate heat, or failure to pay employees, utilities, rent, or mortgage. Additional documentation of financial resources may include but is not limited to:

(A) The Department’s Verification of Financial Resources form (SDS 0448F) completed and stamped or notarized by the applicant’s or licensee’s financial institution; or

(B) Documentation on letterhead of the applicant’s or licensee’s financial institution that includes:

(i) The last four digits of the applicant’s or licensee’s account number;

(ii) The name of the account holder, and if the account is not in the applicant’s or licensee’s name, verification the applicant or licensee has access to the account’s funds;

(iii) The highest and lowest balances for each of the most recent three full months;

(iv) The number of any non-sufficient fund (NSF) payments in each of the last three full months, if any; and

(v) Signature of the banking institution’s representative completing the form and date; or

(C) Demonstration of cash on hand equal to a minimum of two months of operating expenses.

(c) The local licensing authority must request the least information necessary to verify compliance with this section.

(4) RESIDENT MANAGER REQUIREMENTS. A resident manager must live in the home as specified in section (1)(a) of this rule and function as the primary caregiver under the licensee’s supervision. A resident manager must meet and maintain the qualification and training requirements specified in sections (1)(a) through (2)(b)(D) of this rule. The local licensing authority shall verify that all the requirements of these rules have been satisfied prior to approval of a resident manager.

(5) FLOATING RESIDENT MANAGER REQUIREMENTS.

(a) A floating resident manager must meet and maintain the qualification and training requirements specified in sections (1)(a) through (2)(b)(D) of this rule except as indicated in (5)(b) of this rule.

(b) If the licensee has one or more homes within the jurisdiction of more than one local licensing authority, a currently approved floating resident manager is not required to complete the Department-approved orientation in more than one licensing authority’s jurisdiction. This exception does not prohibit the local licensing authority within an exempt area from requiring the floating resident manager applicant to attend the local licensing authority’s orientation.

(c) The floating resident manager must be oriented to each home prior to providing resident care in each home. Documentation of orientation to every home the floating resident manager works in must be available within each home as stated in section (7)(a)-(j) of this rule.

(d) Facility records in each of the homes in which a floating resident manager is assigned to work must maintain proof that the floating resident manager has a current and approved background check.

(e) A floating resident manager may not be used in lieu of a shift caregiver except on temporary basis when the regular shift caregiver is unavailable due to circumstances such as illness, vacation, or termination of employment.

(6) SHIFT CAREGIVER REQUIREMENTS.

(a) Shift caregivers may be used in lieu of a resident manager if granted a written variance by the local licensing authority. Use of shift caregivers detracts from the intent of a home-like environment but may be allowed for specific resident populations. The type of residents served must be a specialized population with intense care needs such as those with Alzheimer’s Disease, AIDS, or head injuries. If shift caregivers are used, each shift caregiver must meet or exceed the experience and training qualifications for the license classification requested.

(b) Shift caregivers must meet and maintain the qualification and training requirements specified in sections (1)(b) through (2)(b)(D) of this rule. The local licensing authority shall verify that all the requirements of these rules have been satisfied prior to approval of a shift caregiver.

(7) CAREGIVER ORIENTATION. Prior to providing care to any resident, a resident manager, floating resident manager, and shift caregiver must be oriented to the home and to the residents by the licensee. Orientation must be clearly documented in the facility records. Orientation includes but is not limited to:

(a) Location of any fire extinguishers;

(b) Demonstration of evacuation procedures;

(c) Instruction of the emergency preparedness plan;

(d) Location of resident records;

(e) Location of telephone numbers for the residents’ physicians, the licensee, and other emergency contacts;

(f) Location of medications and key for medication cabinet;

(g) Introduction to residents;

(h) Instructions for caring for each resident;

(i) Delegation by a registered nurse for nursing tasks if applicable; and

(j) Policies and procedures related to Advance Directives. (See OAR 411-050-0645)

(8) EMPLOYMENT APPLICATION. An application for employment in any capacity in an adult foster home must include a question asking whether the person applying for employment has been found to have committed abuse. Employment applications must be retained for at least three years. (See OAR 411-050-0645)

(9) EXCLUSION VERIFICATION. A licensee must verify that the resident manager and shift caregivers are not listed on either the Office of Inspector General’s (http://oig.hhs.gov) or the General Services Administration’s (https://www.sam.gov) Exclusion Lists prior to the resident manager or shift caregivers working or training in the home. Verification must be clearly documented in the facility records. (See also 411-050-0625(11)(h))

(10) TRAINING WITHIN FIRST YEAR OF INITIAL LICENSING OR APPROVAL. Within the first year of obtaining an initial license or approval, the licensee, resident manager, floating resident manager, and shift caregivers must complete the Six Rights of Safe Medication Administration and a Fire and Life Safety training as available. The Department or local licensing authority and the Office of the State Fire Marshal or the local fire prevention authority may coordinate the Fire and Life Safety training program.

(11) ANNUAL TRAINING REQUIREMENTS.

(a) Each year after initial licensure, the licensee, resident manager, floating resident manager, and shift caregivers must complete at least 12 hours of Department-approved training related to the care of adults who are older or adults with physical disabilities in an adult foster home setting. Up to four of those hours may be related to the business operation of the adult foster home.

(b) A licensee, resident manager, floating resident manager, and shift caregivers, as applicable, must maintain CPR certification.

(c) Registered nurse delegation or consultation, CPR certification and First Aid training, Ensuring Quality Care Course (not including EQC refresher courses), adult foster home orientation, Ventilator Assisted Care Course and skills competency checks, or consultation with an accountant do not count toward the required 12 hours of annual training.

(12) SUBSTITUTE CAREGIVER REQUIREMENTS. A substitute caregiver left in charge of the residents for any period of time, may not be a resident, and must at a minimum, meet the following qualifications prior to working or training in the home:

(a) Be at least 18 years of age;

(b) Have an approved background check annually in accordance with OAR 411-050-0620 and maintain that approval as required;

(c) Be literate in the English language and demonstrate the ability to comprehend and communicate in English orally and in writing with the residents and the residents’ family members and representatives, emergency personnel (e.g., emergency operator, law enforcement, paramedics, and fire fighters), licensed health care professionals, case managers, Department and local licensing authority staff, and others involved in the care of the residents;

(d) Be able to respond appropriately to emergency situations at all times;

(e) Have a clear understanding of his or her responsibilities, have knowledge of the residents’ care plans, and be able to provide the care specified for each resident including appropriate delegation or consultation by a registered nurse;

(f) Possess physical health, mental health, good judgment, and good personal character, including truthfulness, determined necessary by the Department to provide care for adults who are older or adults with physical disabilities, as determined by reference checks and other sources of information;

(g) Have current CPR and First Aid certification within 30 calendar days of the start of employment.

(A) Accepted CPR and First Aid courses must be provided by or endorsed by the American Heart Association, the American Red Cross, the American Safety and Health Institute, or MEDIC First Aid.

(B) CPR or First Aid courses conducted online are only accepted by the Department when an in-person skills competency check is conducted by a qualified instructor endorsed by the American Heart Association, the American Red Cross, the American Safety and Health Institute, or MEDIC First Aid.

(h) Not be listed on the Office of Inspector General’s or General Services Administration’s Exclusion Lists. Licensees must verify the substitute caregiver is not listed on either the Office of Inspector General’s (oig.hhs.gov) or the General Services Administration’s (www.sam.gov) Exclusion Lists prior to the substitute caregiver working or training in the home. Verification must be clearly documented in the facility records.

(13) TRAINING REQUIREMENTS FOR SUBSTITUTE CAREGIVERS.

(a) A substitute caregiver must be oriented to the home and to the residents by the licensee or resident manager prior to the provision of care to any residents. Orientation includes, but is not limited to:

(A) Location of any fire extinguishers;

(B) Demonstration of evacuation procedures;

(C) Instruction of the emergency preparedness plan;

(D) Location of resident records;

(E) Location of telephone numbers for the residents’ physicians, the licensee, and other emergency contacts;

(F) Location of medications and key for medication cabinet;

(G) Introduction to residents;

(H) Instructions for caring for each resident;

(I) Delegation by a registered nurse for nursing tasks if applicable; and

(J) Education on the policies and procedures related to Advance Directives. (See OAR 411-050-0645)

(b) A substitute caregiver must complete the Department’s Caregiver Preparatory Training Study Guide (DHS 9030) and Workbook (DHS 9030-W) and receive instruction in specific care responsibilities from the licensee, resident manager, or floating resident manager prior to working or training in the home. The Workbook must be completed by the substitute caregiver without the help of any others. The Workbook is considered part of the required orientation to the home and residents.

(A) The local licensing authority may grant a variance to the Caregiver Preparatory Training Study Guide and Workbook requirement for a substitute caregiver who:

(i) Holds a current Oregon license as a health care professional such as a physician, nurse practitioner, physician assistant, registered nurse, or licensed practical nurse; and

(ii) Who demonstrates the ability to provide adequate care to residents based on similar training or at least one year of experience providing direct care to adults who are older or adults with physical disabilities.

(B) A certified nursing assistant (CNA) or certified medical assistant (CMA) must complete the Caregiver Preparatory Training Study Guide and Workbook and have a certificate of completion signed by the licensee.

(c) A substitute caregiver routinely left in charge of an adult foster home for any period that exceeds 48 continuous hours is required to meet the education, experience, and training requirements of a resident manager as specified in this rule. A licensee may not leave a substitute caregiver or concurrent substitute caregivers routinely in charge of the home for any period that exceeds 48 continuous hours within one calendar week. This requirement is not intended to prevent a qualified substitute caregiver from providing relief care in the absence of the primary caregiver, such as for a one or two week vacation. In such an event, the licensee must arrange for the qualified back-up provider to be available as needed.

(14) If a licensee has demonstrated non-compliance with one or more of these rules, the Department may require by condition additional training in the deficient area.

Stat. Auth.: ORS 410.070, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, & 443.790

Stats. Implemented: ORS 443.001 to 443.004, 443.705 to 443.825, 443.875, & 443.991

Hist.: SSD 14-1985, f. 12-31-85, ef. 1-1-86; SSD 11-1988, f. 10-18-88, cert. ef. 11-1-88; SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1995, f. & cert. ef. 3-15-95; SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1996, f. 3-29-96, cert. ef. 4-1-96; SDSD 4-2001, f. & cert. ef. 3-1-01; SPD 31-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 22-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 9-2010, f. 6-30-10, cert. ef. 7-1-10; Renumbered from 411-050-0440, SPD 33-2013, f. 8-30-13, cert. ef. 9-1-13; APD 6-2014, f. 3-31-14, cert. ef. 4-1-14

411-050-0630

Classification of Adult Foster Homes

(1) The local licensing authority shall issue a Class 1, Class 2, or Class 3 adult foster home license only if the qualifications of the applicant, resident manager, floating resident manager, and shift caregivers, as applicable, fulfill the classification requirements of these rules.

(a) After receipt of the completed application materials, including the non-refundable fee, the local licensing authority must investigate the information submitted including any pertinent information received from outside sources.

(b) The local licensing authority shall not issue a license if unsatisfactory references or a history of substantial non-compliance of the applicant within the last 24 months is verified.

(c) The local licensing authority may issue a Class 1 license if the applicant and resident manager, as applicable, complete the training requirements outlined in OAR 411-050-0625;

(d) The local licensing authority may issue a Class 2 license if the applicant, resident manager, and floating resident manager, as applicable, complete the requirements outlined in OAR 411-050-0625. In addition, these caregivers must each have the equivalent of two years of full time experience providing direct care to adults who are older or adults with physical disabilities;

(e) The local licensing authority may issue a Class 3 license if the applicant, resident manager, floating resident manager, and shift caregivers, as applicable, complete the training requirements outlined in OAR 411-050-0625 and have a current license as a health care professional in Oregon or possess the following qualifications:

(A) Have the equivalent of three years of full time experience providing direct care to adults who are older or adults with physical disabilities and who require full assistance in four or more activities of daily living; and

(B) Have references satisfactory to the Department. The applicant must submit current contact information from at least two licensed health care professionals who have direct knowledge of the applicant’s ability and past experience as a caregiver.

(2) The Department may approve a licensee to care for residents requiring ventilator-assisted care. The licensee, resident manager, floating resident manager, or shift caregivers, as applicable, must meet the criteria for a Class 3 home according to section (1)(e) of this rule and comply with the additional requirements for adult foster homes serving residents requiring ventilator assisted care outlined in OAR 411-050-0660.

(3) To change the classification of a licensed home, the licensee must complete a new initial application and submit the application form to the local licensing authority as outlined in OAR 411-050-0610.

(4) A licensee may only admit or continue to care for residents whose impairment levels are within the classification of the licensed home.

(a) A licensee with a Class 1 license may only admit residents who require assistance in no more than four activities of daily living.

(b) A licensee with a Class 2 license may provide care for residents who require assistance in all activities of daily living, but require full assistance in no more than three activities of daily living.

(c) A licensee with a Class 3 license may provide care for residents who require full assistance in four or more activities of daily living, but only one resident who requires bed-care or full assistance with all activities of daily living.

(5) A licensee must request, in writing, a variance from the local licensing authority if:

(a) A new resident wishes to be admitted whose impairment level exceeds the license classification;

(b) A current resident becomes more impaired, exceeding the license classification; or

(c) There is more than one resident in the home who requires full bed-care or full assistance with all activities of daily living not including cognition or behavior.

(6) The local licensing authority may grant a variance that allows the resident to be admitted or remain in the adult foster home. The local licensing authority must respond in writing within 30 calendar days after receipt of the licensee’s written variance request. The licensee must prove the following criteria are met by clear and convincing evidence that:

(a) It is the choice of the resident to reside in the home;

(b) The licensee is able to provide appropriate care and service to the resident in addition to meeting the care and service needs of the other residents;

(c) Additional staff is hired to meet the additional care requirements of all residents in the home as necessary;

(d) Outside resources are available and obtained to meet the resident’s care needs;

(e) The variance shall not jeopardize the care, health, safety, or welfare of the residents; and

(f) The licensee is able to demonstrate how all occupants shall be safely evacuated in three minutes or less.

Stat. Auth.: ORS 410.070, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, & 443.790

Stats. Implemented: ORS 443.001 to 443.004, 443.705 to 443.825, 443.875, & 443.991

Hist.: SSD 14-1985, f. 12-31-85, ef. 1-1-86; SSD 11-1988, f. 10-18-88, cert. ef. 11-1-88; SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1995, f. & cert. ef. 3-15-95; SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1996, f. 3-29-96, cert. ef. 4-1-96; SDSD 4-2001, f. & cert. ef. 3-1-01; SPD 31-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 22-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 9-2010, f. 6-30-10, cert. ef. 7-1-10; Renumbered from 411-050-0443, SPD 33-2013, f. 8-30-13, cert. ef. 9-1-13; APD 6-2014, f. 3-31-14, cert. ef. 4-1-14

411-050-0640

Renewal Application and Fees

(1) At least 60 calendar days prior to the expiration of a license, the local licensing authority must send a reminder notice and renewal application to the licensed provider. The local licensing authority must investigate any information in the renewal application and conduct an unannounced inspection of the adult foster home prior to the license renewal.

(2) A separate application is required for each location where an adult foster home is to be operated.

(3) RENEWAL APPLICATION REQUIREMENTS. To renew an adult foster home license, the licensee must complete the Department’s Renewal Application form (SDS 448C) and submit the form to the local licensing authority with the non-refundable fee prior to the expiration date of the current license. Timely submission of the renewal application and non-refundable fee shall keep the license in effect until the local licensing authority or the Department takes action.

(a) The renewal application is not complete until all of the required application information is submitted to the local licensing authority.

(b) A renewal application remaining incomplete at the time of license expiration or failure to provide accurate information on the renewal application shall result in the denial of the application.

(4) The license renewal application must include:

(a) Complete contact information for the licensee including:

(A) A mailing address if different from the adult foster home; and

(B) A business address for electronic mail, if applicable.

(b) The maximum resident capacity;

(c) Identification of:

(A) Any relatives needing care;

(B) The maximum number of any room and board tenants;

(C) The maximum number of day care individuals; and

(D) The names of any other occupants in the home.

(d) A Health History and Physician or Nurse Practitioners’ Statement (form SDS 0903). The Health History and Physician or Nurse Practitioners’ Statement must be updated every third year or sooner if there is reasonable cause for health concerns;

(e) FINANCIAL INFORMATION FOR THE HOME’S FIRST LICENSE RENEWAL. A completed Financial Information Worksheet (form SDS 0448A) demonstrating the financial ability to maintain sufficient liquid resources to pay the home’s operating costs for at least two months;

(f) If the home is leased or rented, a copy of the current signed and dated lease or rental agreement. The agreement must be a standard lease or rental agreement for residential use and include the following:

(A) The owner and landlord’s name;

(B) Verification that the rent is a flat rate; and

(C) Signatures and date signed by the landlord and applicant, as applicable;

(g) Documentation of a current approved background check for each subject individual as described in OAR 411-050-0620;

(h) Identification of any structural changes to the home that have occurred since the last approved application was submitted to the local licensing authority. If there has been a structural change to the home, the licensee must submit copies of all required permits and a current and accurate floor plan that indicates:

(A) The size of rooms;

(B) Which bedrooms are to be used by residents, the licensee, caregivers, for day care, and room and board tenants, as applicable;

(C) The location of all the exits on each level of the home, including emergency exits such as windows;

(D) The location of any wheelchair ramps;

(E) The location of all fire extinguishers, smoke alarms, and carbon monoxide alarms;

(F) The planned evacuation routes, initial point of safety, and final point of safety; and

(G) Any designated smoking areas in or on the adult foster home’s premises.

(i) A $20 per bed non-refundable fee for each non-relative resident;

(j) If the licensee intends to use a resident manager, floating resident manager, or shift caregivers, the Department’s supplemental application (form SDS 448B) completed by the applicant or applicants, as appropriate;

(k) Written information describing the operational plan for the adult foster home including:

(A) The use of substitute caregivers and other staff;

(B) A plan of coverage for the absence of the resident manager or the shift caregivers, if applicable; and

(C) The name of a qualified back-up licensee, approved resident manager, or floating resident manager who does not live in the home but has been oriented to the home. The licensee must submit a signed agreement with the listed back-up provider annually and maintain a copy in the facility records.

(l) Proof of required continuing education credits as specified in OAR 411-050-0625.

(5) LATE RENEWAL REQUIREMENTS (UNLICENSED ADULT FOSTER HOME). The home shall be treated as an unlicensed facility, subject to civil penalties, if the required renewal information and fee are not submitted to the local licensing authority prior to the license expiration date and residents remain in the home. (See OAR 411-050-0685)

(6) The local licensing authority shall provide the licensee a copy of the Department’s inspection report, (form SDS 517A and, if applicable, form SDS 517B) citing any violations and specifying a time frame for correction. The time frame for correction of violations may not exceed 30 calendar days from the date of inspection.

(7) The Department shall deny a renewal application if cited violations are not corrected within the time frame specified by the local licensing authority.

(8) The local licensing authority shall not renew a license unless the following requirements are met:

(a) The applicant and the adult foster home are in compliance with ORS 443.705 to 443.825 and these rules, including any applicable conditions and other final orders of the Department;

(b) The local licensing authority has completed an inspection of the adult foster home;

(c) The Department has completed a background check in accordance with OAR 411-050-0620;

(d) The local licensing authority has reviewed the record of sanctions available from the local licensing authority’s files;

(e) The local licensing authority has determined that the nursing assistant registry maintained under 42 CFR 483.156 contains no finding that the licensee or any nursing assistant employed by the licensee has been responsible for abuse; and

(f) The local licensing authority has determined the licensee is not listed on the Office of Inspector General’s and General Services Administration’s Exclusion Lists.

(9) In seeking the renewal of a license when an adult foster home has been licensed for less than 24 months, the burden of proof to establish compliance with ORS 443.705 to 443.825 and these rules is upon the licensee.

(10) In seeking the renewal of a license when an adult foster home has been licensed for 24 or more continuous months, the burden of proof to establish noncompliance with ORS 443.705 to 443.825 and these rules is upon the Department.

Stat. Auth.: ORS 410.070, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, & 443.790

Stats. Implemented: ORS 443..001 to 443.004, 443.705 to 443.825, 443.875, & 443.991

Hist.: SSD 14-1985, f. 12-31-85, ef. 1-1-86; SSD 11-1988, f. 10-18-88, cert. ef. 11-1-88; SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1996, f. 3-29-96, cert. ef. 4-1-96; SDSD 4-2001, f. & cert. ef. 3-1-01; SPD 31-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 9-2007, f. 6-27-07, cert. ef. 7-1-07; SPD 22-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 9-2010, f. 6-30-10, cert. ef. 7-1-10; Renumbered from 411-050-0420, SPD 33-2013, f. 8-30-13, cert. ef. 9-1-13; SPD 42-2013(Temp), f. & cert. ef. 10-16-13 thru 4-13-14; APD 6-2014, f. 3-31-14, cert. ef. 4-1-14

411-050-0642

Variances

(1) An applicant or licensee may request a variance to the provisions of these rules. The variance request must be in writing and must include clear and convincing evidence that:

(a) The requested variance does not jeopardize the care, health, welfare, or safety of the residents and all of the residents’ needs shall be met; and

(b) All residents, in addition to other occupants in the home, may be evacuated in three minutes or less.

(2) VARIANCES NOT ALLOWED. Notwithstanding section (1) of this rule, no variance shall be granted by the local licensing authority from a regulation or provision of these rules pertaining to:

(a) Resident capacity as described in OAR 411-050-0632;

(b) Minimum age of licensee and any caregivers as described in OAR 411-050-0625;

(c) The training requirements of a licensee and all other caregivers except as allowed for provisional licenses as described in OAR 411-050-0635, or when a substitute caregiver holds an Oregon health care professional license as described in 411-050-0625;

(d) Standards and practices for care and services as described in OAR 411-050-0655);

(e) Inspections of the facility as described in OAR 411-050-0670; or

(f) Background checks as described in OAR 411-050-0620.

(3) The local licensing authority shall not grant a variance request to any rule that is inconsistent with Oregon Revised Statutes.

(4) The local licensing authority shall not grant a variance request related to fire and life safety without prior consultation with the Department.

(5) In making a determination to grant a variance, the local licensing authority must consider the licensee’s history of compliance with rules governing adult foster homes or other long-term care facilities for adults who are older or adults with physical disabilities in Oregon and any other jurisdiction, if appropriate. The local licensing authority must determine that the variance is consistent with the intent and purpose of these rules prior to granting the variance. (See OAR 411-050-0600) The local licensing authority must respond in writing within 30 days of receiving a request for a variance. The written response must include the frequency of renewal.

(6) A variance is not effective until granted in writing by the local licensing authority. Variances are reviewed pursuant to these rules. If applicable, the licensee must re-apply for a variance at the time of license renewal or more often if determined necessary by the local licensing authority.

(7) In seeking a variance, the burden of proof that the requirements of these rules have been met is upon the applicant or licensee.

(8) If a variance to any provision of these rules is denied, the applicant or licensee may request a meeting with the local licensing authority.

Stat. Auth.: ORS 410.070, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, & 443.790

Stats. Implemented: ORS 443.001 to 443.004, 443.705 to 443.825, 443.875, & 443.991

Hist.: SSD 14-1985, f. 12-31-85, ef. 1-1-86; SSD 11-1988, f. 10-18-88, cert. ef. 11-1-88; SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1996, f. 3-29-96, cert. ef. 4-1-96; SDSD 4-2001, f. & cert. ef. 3-1-01; SPD 31-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 9-2010, f. 6-30-10, cert. ef. 7-1-10; Renumbered from 411-050-0442, SPD 33-2013, f. 8-30-13, cert. ef. 9-1-13; APD 6-2014, f. 3-31-14, cert. ef. 4-1-14

411-050-0645

Operational Standards

(1) GENERAL PRACTICES.

(a) A licensee must own, rent, or lease the home to be licensed, however the local licensing authority may grant a variance to churches, hospitals, non-profit associations, or similar organizations. If a licensee rents or leases the premises where the adult foster home is located, the licensee may not enter into a contract that requires anything other than a flat rate for the lease or rental. A licensed provider of a building in which an adult foster home is located may not allow the owner, landlord, or lessor to interfere with the admission, transfer, or voluntary or involuntary move of any resident in the adult foster home unless the owner, landlord, or lessor is named on the license.

(b) Each adult foster home must meet:

(A) All applicable local business license, zoning, building, and housing codes;

(B) The Fair Housing Act; and

(C) State and local fire and safety regulations for a single-family residence.

(c) ZONING. Adult foster homes are subject to applicable sections of ORS 197.660 to 197.670.

(d) COOPERATION AND ACCESS. The licensee must cooperate with the Department, Centers for Medicare and Medicaid Services (CMS), and local licensing and investigative personnel in inspections, complaint investigations, planning for resident care, application procedures, and other necessary activities.

(A) Department, CMS, local licensing, and investigative personnel must be provided access to all resident and facility records and may conduct private interviews with residents.

(B) The State Long-Term Care Ombudsman must be provided access to all resident and facility records. Deputy Ombudsman and Certified Ombudsman Volunteers must be provided access to facility records and, with written permission from the resident or the resident’s legal representative, may have access to resident records. (See OAR 114-005-0030)

(e) CONFIDENTIALITY. Information related to residents must be kept confidential, except as may be necessary in the planning or provision of care or medical treatment, or related to an inspection, investigation, or sanction action under these rules.

(f) TRANSPORTATION. A licensee must arrange for or provide appropriate transportation for residents when needed.

(g) STAFFING STANDARDS. The licensee must have qualified caregivers, including awake caregivers as necessary, sufficient in number to meet the 24-hour needs of each resident in addition to caring for any children or relatives beyond the license capacity of the adult foster home.

(A) A licensee may not employ a resident manager, floating resident manager, or shift caregiver who does not meet or exceed the qualifications, training, and classification standards for the adult foster home as described in OAR 411-050-0625 and 411-050-0630; and

(B) A licensee may not employ or allow any caregiver to train or work in the home who is on the Office of Inspector General’s or General Services Administration’s Exclusion Lists.

(h) ABSENCE OF A PRIMARY CAREGIVER. If a primary caregiver is absent from the home for 10 days or more, the licensee must notify the local licensing authority in writing at least seven days prior to the primary caregiver’s absence or immediately upon knowing. Notification must state the reason for and anticipated length of the absence. The licensee must also submit a staffing plan to the local licensing authority, signed by the back-up provider, demonstrating coverage that meets the needs of the residents during the primary caregiver’s absence.

(i) CHANGE OF PRIMARY CAREGIVER. If a primary caregiver changes during the period the license covers, the licensee must notify the local licensing authority within 24 hours and identify who is providing care.

(A) If a licensee assumes the role as the primary caregiver or shift caregiver when there has been a change in primary caregiver, the licensee must submit an updated plan of 24-hour coverage to the local licensing authority within seven days.

(B) If a resident manager, floating resident manager, or shift caregiver changes, the licensee must submit a request for a change of resident manager, floating resident manager, or shift caregiver as applicable, to the local licensing authority along with:

(i) The Department’s supplemental application form (SDS 448B) completed by the resident manager applicant, floating resident manager applicant, or shift caregiver applicant;

(ii) A completed Health History and Physician or Nurse Practitioner’s Statement (form SDS 903) for the new applicant;

(iii) Documentation of the initiation of or a copy of an approved background check; and

(iv) A $10 non-refundable fee.

(C) When there is a change in primary caregiver, an approved floating resident manager may assume the responsibilities of the live-in, primary caregiver until a new primary caregiver is employed. If a new primary caregiver is not employed within 60 calendar days, the floating resident manager must be designated as the home’s resident manager and the licensee must notify the local licensing authority of the change in status.

(D) The local licensing authority shall issue a revised license when there is a change in a primary caregiver who is identified on the license.

(j) UNEXPECTED AND URGENT STAFFING NEED. If the local licensing authority determines an unexpected and urgent staffing need exists, the local licensing authority may authorize a person who has not completed the Department’s current Ensuring Quality Care Course and passed the current examination to act as a resident manager or shift caregiver until training and testing are completed, or for 60 calendar days, whichever period is shorter. The licensee must notify the local licensing authority of the unexpected and urgent staffing need in writing and satisfactorily demonstrate:

(A) The licensee’s inability to live in the home and act as the primary caregiver;

(B) The licensee’s inability to find a qualified resident manager or shift caregiver as applicable; and

(C) The proposed staff person is 21 years of age and meets the requirements of a substitute caregiver for the adult foster home as described in OAR 411-050-0625 and 411-050-0630.

(k) RESPONSIBILITY. A licensee is responsible for the supervision, training, and overall conduct of all caregivers, family members, and friends when acting within the scope of their employment, duties, or when present in the home.

(l) SEXUAL RELATIONS. Sexual relations between residents and any employee of the adult foster home, licensee, or any member of the licensee’s household or family is prohibited unless a pre-existing relationship existed.

(m) COMMUNICATION.

(A) Applicants for an initial license must obtain and provide to the local licensing authority a current, active business address for electronic mail prior to obtaining a license.

(B) A licensee must notify the local licensing authority within 24 hours upon a change in the home’s business address for electronic mail;

(C) A licensee must notify the local licensing authority, the residents and the resident’s family members, legal representatives, and case managers, as applicable, of any change in the telephone number for the licensee or the adult foster home within 24 hours of the change.

(D) A licensee must notify the local licensing authority in writing prior to any change of the licensee’s residence or mailing address.

(2) SALE OR LEASE OF EXISTING ADULT FOSTER HOMES AND TRANSFER OF LICENSES.

(a) A license is not transferable and does not apply to any location or person other than the location and the person indicated on the license obtained from the local licensing authority.

(b) The licensee must inform real estate agents, prospective buyers, lessees, and transferees in all written communication including advertising and disclosure statements that the license to operate the adult foster home is not transferable and the licensee must refer them to the local licensing authority for information about licensing.

(c) When a home is to be sold or otherwise transferred or conveyed to another person who intends to operate the home as an adult foster home, that person must apply for and obtain a license from the local licensing authority prior to the transfer of operation of the home.

(d) The licensee must promptly notify the local licensing authority in writing about the licensee’s intent to close or intent to convey the adult foster home to another person. The licensee must provide written notice to the residents and the residents’ representatives and case managers as applicable, according to section (13)(a) of this rule.

(e) The licensee must inform a person intending to assume operation of an existing adult foster home that the residents currently residing in the home must be given at least 30 calendar days’ written notice of the licensee’s intent to close the adult foster home for the purpose of conveying the home to another person.

(f) The licensee must remain licensed and responsible for the operation of the home and care of the residents in accordance with these rules until the home is closed and the residents have been relocated, or the home is conveyed to a new licensee who is licensed by the local licensing authority at a level appropriate to the care needs of the residents in the home.

(3) FORECLOSURE.

(a) A licensee must provide written notification to the local licensing authority within 10 calendar days after receipt of any notice of default, or any notice of potential default, with respect to a real estate contract, trust deed, mortgage, or other security interest affecting any property occupied or used by the licensee.

(b) The licensee must provide a copy of the notice of default or warning of potential default to the local licensing authority.

(c) The licensee must provide written updates to the local licensing authority at least every 30 days until the default or warning of potential default has been resolved and no additional defaults or potential defaults have been declared and no additional warnings have been issued. Written updates must include:

(A) The current status on what action has been or is about to be taken by the licensee with respect to the notice received;

(B) The action demanded or threatened by the holder of the security interest; and

(C) Any other information reasonably requested by the local licensing authority.

(d) The licensee must provide written notification within 24 hours to the local licensing authority upon final resolution of the matters leading up to or encompassed by the notice of default or the notice warning of potential default.

(e) If the subject default property is licensed as an adult foster home, the licensee must provide written notification of the following within 24 hours to the local licensing authority, and all the residents and the residents’ representatives, if applicable, regarding:

(A) The filing of any litigation regarding such security interest, including the filing of a bankruptcy petition by or against the licensee or an entity owning any property occupied or used by the licensee;

(B) The entry of any judgment with respect to such litigation;

(C) The passing of the date 40 days prior to any sale scheduled pursuant to the exercise of legal rights under a security interest, or a settlement or compromise related thereto, of the licensee’s property or property occupied or used by the licensee; and

(D) The sale, pursuant to the exercise of legal rights under a security interest, or a settlement or compromise related thereto, of the licensee’s property or property occupied or used by the licensee.

(4) MEALS.

(a) Three nutritious meals must be served daily at times consistent with those in the community. Each meal must include food from the basic food groups according to the United States Department of Agriculture (USDA’s) My Plate and include fresh fruit and vegetables when in season.

(b) Meals must reflect consideration of a resident’s preferences and cultural and ethnic background. This does not mean that the licensee must prepare multiple, unique meals for the residents at the same time.

(c) A schedule of meal times and menus for the coming week must be prepared and posted weekly in a location accessible to residents and families.

(A) Meal substitutions for scheduled menu items in compliance with section (4)(a) of this rule are acceptable and must be documented on, or attached to, the weekly menu.

(B) The licensee must maintain the weekly menus for a minimum of the 12 most recent months during which the home has conducted business.

(d) There must be no more than a 14-hour span between the evening and morning meals. (Snacks do not substitute for a meal determining the 14-hour span.) Nutritious snacks and liquids must be offered to fulfill each resident’s nutritional requirements.

(e) Food may not be used as an inducement to control the behavior of a resident.

(f) Home-canned foods must be processed according to the guidelines of the Oregon State University Extension Service. Freezing is the most acceptable method of food preservation. Milk must be pasteurized.

(g) Special consideration must be given to a resident with chewing difficulties and other eating limitations. Special diets must be followed as prescribed in writing by the resident’s physician, nurse practitioner, or physician assistant.

(h) Adequate storage must be available to maintain food at a proper temperature, including a properly working refrigerator. Storage areas and food preparation areas must be free from food that is spoiled or expired.

(i) The household utensils, dishes, glassware, and household food may not be stored in bedrooms, bathrooms, or living areas.

(j) Meals must be prepared and served in the home where the residents live. Payment for meals eaten away from the home for the convenience of the licensee (e.g., restaurants, senior meal sites) is the responsibility of the licensee. Meals and snacks, as part of an individual recreational outing by choice, are the responsibility of the resident.

(k) Utensils, dishes, and glassware must be washed in hot soapy water, rinsed, and stored to prevent contamination. A dishwasher with a sani-cycle is recommended.

(l) Food preparation areas and equipment, including utensils and appliances, must be clean, free of offensive odors, and in good repair.

(5) TELEPHONE.

(a) The home must have a working landline and corded telephone with a listed number that is separate from any other number the home has, such as but not limited to internet or fax lines, unless the system includes features that notify the caregiver of an incoming call, or automatically switches to the appropriate mode. If a licensee has a caller identification service on the home number, the blocking feature must be disabled to allow incoming calls to be received unhindered. A licensee may have only one phone line as long as the phone line complies with the requirements of these rules. Voice over internet protocol (VoIP), voice over broadband (VoBB), or cellular telephone service may not be used in place of a landline.

(b) The licensee must make a telephone that is in good working order available and accessible for the residents use with reasonable accommodation for privacy during telephone conversations. A resident with a hearing impairment, to the extent the resident may not hear a normal telephone conversation, must be provided with a telephone that is amplified with a volume control or a telephone that is hearing aid compatible.

(c) Restrictions on the use of the telephone by the residents must be specified in the written house policies and may not violate the residents’ rights. Individual restrictions must be well documented in the resident’s care plan.

(6) FACILITY RECORDS.

(a) Facility records must be kept current, maintained in the adult foster home, and made available for review upon request. Facility records include but are not limited to:

(A) Proof that the licensee and all subject individuals have a background check approved by the Department as required by OAR 411-050-0620;

(B) Proof that the licensee and all other caregivers have met and maintained the minimum qualifications as required by OAR 411-050-0625 including:

(i) Proof of required continuing education. Documentation must include the date of each training, subject matter, name of agency or organization providing the training, and number of Department-approved classroom hours;

(ii) Completed certificates to document the substitute caregivers’ completion of the Department’s Caregiver Preparatory Training Study Guide and Workbook and to document the resident manager, floating resident manager, and shift caregivers, as applicable, completion and passing of the Department’s Ensuring Quality Care Course and examination;

(iii) Documentation of orientation to the adult foster home for the resident manager, floating resident manager, shift caregivers, and substitute caregivers as applicable;

(iv) Employment applications and the names, addresses, and telephone numbers of all caregivers employed or used by the licensee; and

(v) Verification that all caregivers are not listed on the Office of Inspector General’s or General Services Administration’s Exclusion Lists.

(C) Copies of notices sent to the local licensing authority pertaining to changes in the resident manager, floating resident manager, shift caregiver, or other primary caregiver;

(D) Proof of required vaccinations for animals on the premises;

(E) Well water tests, if required, according to OAR 411-050-0650. Test records must be retained for a minimum of three years;

(F) Agreements and specialized contracts with the Department, copies of the adult foster home’s private-pay contracts, any contracts with residents eligible for Medicaid services such as an agreement pertaining to storage fees after leaving the home, and any other contracts such as contracts with room and board tenants or individuals receiving day care services; and

(G) Records of evacuation drills according to OAR 411-050-0650, including the date, time of day, evacuation route, length of time for evacuation of all occupants, names of all residents and occupants, and which residents and occupants required assistance. The records must be kept at least three years.

(b) REQUIRED POSTED ITEMS. The following items must be posted in one location in the entryway or other equally prominent place in the home where residents, visitors, and others may easily read them:

(A) The adult foster home license;

(B) Conditions attached to the license, if any;

(C) A copy of a current floor plan meeting the requirements of OAR 411-050-0650;

(D) The Residents’ Bill of Rights;

(E) The home’s current house policies that have been reviewed and approved by the local licensing authority;

(F) The Department’s procedure for making complaints;

(G) The Long-Term Care Ombudsman poster;

(H) The Department’s inspection forms (form SDS 517A and if applicable, form SDS 517B) including how corrections were made since the last annual inspection;

(I) The Department’s notice pertaining to the use of any intercoms, monitoring devices, and video cameras that may be used in the adult foster home; and

(J) A weekly menu according to section (4) of this rule.

(c) POST BY PHONE. Emergency telephone numbers including the contact number for at least one back-up provider who has agreed to respond in person in the event of an emergency and an emergency contact number for the licensee must be readily visible and posted by a central telephone in the adult foster home.

(7) RESIDENT RECORDS.

(a) An individual resident record must be developed, kept current, and readily accessible on the premises of the home for each individual admitted to the adult foster home. The record must be legible and kept in an organized manner so as to be utilized by staff. The record must contain the following information:

(A) A complete initial screening assessment and general information form (SDS 902) as described in OAR 411-050-0655;

(B) Documentation on form SDS 913 that the licensee has informed private-pay residents of the availability of a long-term care assessment;

(C) Documentation that the licensee has informed all residents of the right to formulate an Advance Directive;

(D) FINANCIAL INFORMATION:

(i) Detailed records and receipts if the licensee manages or handles a resident’s money. The Resident Account Record (form SDS 713) or other expenditure forms may be used if the licensee manages or handles a resident’s money. The record must show amounts and sources of funds received and issued to, or on behalf of, the resident and be initialed by the person making the entry. Receipts must document all deposits and purchases of $5 or more made on behalf of a resident.

(ii) Contracts signed by residents or the residents’ representatives may be kept in a separate file but must be made available for inspection by the local licensing authority.

(E) Medical and legal information including but not limited to:

(i) Medical history, if available;

(ii) Current prescribing practitioner orders;

(iii) Nursing instructions, delegations, and assessments as applicable;

(iv) Completed medication administration records retained for at least the last six months or from the date of admission, whichever is less. (Older records may be stored separately); and

(v) Copies of Guardianship, Conservatorship, Advance Directive for Health Care, Health Care Power of Attorney, and Physician’s Order for Life Sustaining Treatment (POLST) documents, as applicable.

(F) A complete, accurate, and current care plan;

(G) A copy of the current house policies and the current Residents’ Bill of Rights, signed and dated by the resident or the resident’s representative;

(H) SIGNIFICANT EVENTS. A written report (using form SDS 344 or its equivalent) of all significant incidents relating to the health or safety of the resident including how and when the incident occurred, who was involved, what action was taken by the licensee and staff, as applicable, and the outcome to the resident;

(I) NARRATIVE OF RESIDENT’S PROGRESS. Narrative entries describing each resident’s progress must be documented at least weekly and maintained in each resident’s individual record. All entries must be signed and dated by the person writing them; and

(J) Non-confidential information or correspondence pertaining to the care needs of the resident.

(b) ACCESS TO RESIDENT RECORDS.

(A) Resident records must be readily available at the adult foster home to residents, the residents’ authorized representatives or other legally authorized persons, all caregivers working in the home, and the Department, the local licensing authority, the investigative authority, case managers, and the Centers for Medicare and Medicaid Services (CMS) for the purpose of conducting inspections or investigations.

(B) The State Long-Term Care Ombudsman must be provided access to all resident and facility records. A Deputy Ombudsman and Certified Ombudsman Volunteers must be provided access to facility records relevant to caregiving and resident records with written permission from the resident or the resident’s legal representative. (See OAR 114-005-0030)

(c) RECORD RETENTION. Records, including any financial records for residents, must be kept for a period of three years from the date the resident left the home.

(d) CONFIDENTIALITY. In all other matters pertaining to confidential records and release of information, licensees must be guided by the principles and definitions described in OAR chapter 411, division 005 (Privacy of Protected Information).

(8) HOUSE POLICIES. House policies must be in writing and a copy given to the resident and the resident’s family or representative at the time of admission and at the time the screening and assessment is conducted. A signed copy of the house policies must be obtained at the time of admission and placed in the resident’s record. House policies must be consistent with the practices of the licensee, staff, occupants, and visitors of the home. House policies established by the licensee must:

(a) Include any restrictions the adult foster home may have on the use of alcohol, tobacco, pets, visiting hours, dietary restrictions, or religious preferences;

(b) Indicate the home’s policy regarding the presence and use of legal marijuana on the premises;

(c) Include a schedule of meal times;

(d) Include the home’s policy regarding refunds for residents eligible for Medicaid services including pro-rating partial months and if the room and board is refundable;

(e) Include a clear and precise statement of any limitation to the implementation of Advance Directives on the basis of conscience. This rule does not apply to medical professional or hospice orders for administration of medications. The statement must include:

(A) A description of conscientious objections as they apply to all occupants of the adult foster home;

(B) The legal authority permitting such objections under ORS 127.505 to 127.660; and

(C) Description of the range of medical conditions or procedures affected by the conscientious objection. (See OAR 411-050-0655)

(f) Not be in conflict with the Residents’ Bill of Rights, the family atmosphere of the home, or any of these rules;

(g) Be reviewed and approved by the local licensing authority prior to the issuance of a license and prior to implementing any changes; and

(h) Be posted with the required posted items, in a location where they are easily seen and read by residents and visitors as described in section (7) of this rule.

(9) RESIDENT MOVES AND TRANSFERS. The Department encourages licensees to support a resident’s choice to remain in his or her living environment while recognizing that some residents may no longer be appropriate for the adult foster care setting due to safety and medical limitations.

(a) If a resident moves out of an adult foster home for any reason, the licensee must submit copies of pertinent information from the resident’s record to the resident’s new place of residence at the time of move. Pertinent information must include at a minimum:

(A) Copies of current prescribing medical practitioner’s orders for medications, current medication sheets, and an updated care plan; and

(B) Documentation of actions taken by the adult foster home staff, resident, or the resident’s representative pertaining to the move or transfer.

(b) A licensee must immediately document voluntary and involuntary moves or transfers from the adult foster home in the resident’s record as events take place. (See sections (11) and (12) of this rule)

(10) VOLUNTARY MOVES AND TRANSFERS.

(a) If a resident eligible for Medicaid services or the resident’s representative gives notice of the resident’s intent to leave the adult foster home, or the resident leaves the home abruptly, the licensee must promptly notify the resident’s case manager.

(b) A licensee must obtain prior authorization from the resident, the resident’s legal representative, and case manager, as applicable, prior to the resident’s:

(A) Voluntary move from one bedroom to another in the adult foster home;

(B) Voluntary transfer from one adult foster home to another home that has a license issued to the same person; or

(C) Voluntary move to any other location.

(c) Notifications and authorizations of voluntary moves and transfers must be documented and available in the resident’s record.

(d) The licensee remains responsible for the provision of care and services until the resident has moved from the home.

(11) INVOLUNTARY MOVES AND TRANSFERS.

(a) A resident may only be moved involuntarily to another room within the adult foster home, transferred to another adult foster home operated by the same licensee for a temporary or permanent stay, or moved from the adult foster home for the following reasons:

(A) Medical reasons. The resident has a medical or nursing condition that is complex, unstable, or unpredictable that exceeds the level of care and services the facility provides;

(B) The adult foster home is unable to accomplish evacuation of the adult foster home in accordance with OAR 411-050-0650;

(C) Welfare of the resident or other residents;

(i) The resident exhibits behavior that poses an imminent danger to self or others including acts that result in the resident’s arrest or detention;

(ii) The resident engages in behavior or action that repeatedly and substantially interfere with the rights, health, or safety of the residents or others; or

(iii) The resident engages in illegal drug use or commits a criminal act that causes potential harm to the resident or others.

(D) Failure to make payment for care or failure to make payment for room and board;

(E) The adult foster home has had its license revoked, not renewed, or the license was voluntarily surrendered by the licensee;

(F) The licensee’s Medicaid Provider Enrollment Agreement or specialized contract is terminated (pertains only to residents eligible for Medicaid); or

(G) The resident engages in the use of medical marijuana in violation of the home’s written policies or contrary to Oregon Law under the Oregon Medical Marijuana Act, ORS 475.300 to 475.346.

(b) MANDATORY WRITTEN NOTICE. A resident may not be moved involuntarily from the adult foster home, or to another room within the adult foster home, or transferred to another adult foster home for a temporary or permanent stay without a minimum of 30 calendar days’ written notice. The notice must be delivered in person to the resident and must be delivered in person or sent by registered or certified mail to the resident’s legal representative, guardian, or conservator, and a copy must be immediately submitted to the resident’s case manager, as applicable. Where a resident lacks capacity and there is no legal representative, a copy of the notice must be immediately submitted to the State Long Term Care Ombudsman. The written notice must:

(A) Be on the Department’s Notice of Involuntary Move or Transfer of Resident form (SDS 901);

(B) Be completed by the licensee; and

(C) Include the following information:

(i) The resident’s name;

(ii) The reason for the proposed move or transfer including the specific reasons the facility is unable to meet the resident’s needs;

(iii) The date of the proposed change;

(iv) The location to which the resident is going, if known;

(v) A notice of the right to hold an informal conference and hearing;

(vi) The name, address, and telephone number of the person giving the notice; and

(vii) The date the notice is issued.

(c) LESS THAN 30 DAYS’ WRITTEN NOTICE. A licensee may give less than 30 calendar days’ written notice in specific circumstances as identified in paragraphs (A) or (B) below, but must do so as soon as possible using the Department’s Notice of Involuntary Move or Transfer of Resident form (SDS 901). The notice must be given in person to the resident, the resident’s representative, guardian, conservator, and a copy must be immediately submitted to the resident’s case manager, as applicable. The reasons for the notice must be fully documented in the resident’s record. The licensee remains responsible for the provision of care and services until the resident has moved from the home. A licensee may give less than 30 calendar days’ notice ONLY if:

(A) Undue delay in moving the resident would jeopardize the health, safety, or well-being of the resident.

(i) The resident has a medical emergency that requires the immediate care of a level or type that the adult foster home is unable to provide.

(ii) The resident exhibits behavior that poses an immediate danger to self or others.

(B) The resident is hospitalized or is temporarily out of the home and the licensee determines that he or she is no longer able to meet the needs of the resident.

(12) RESIDENT HEARING RIGHTS. A resident, who has been given formal notice of an involuntary move or refused the right of return or re-admission, is entitled to an informal conference and hearing prior to the involuntary move or transfer as follows:

(a) INFORMAL CONFERENCE. The local licensing authority must hold an informal conference as promptly as possible after the request is received. The local licensing authority must send written notice of the time and place of the conference to the licensee and all persons entitled to the notice. Participants may include the resident and at the resident’s request a family member, case manager, Ombudsman, legal representative of the resident, the licensee, and a representative from an adult foster home association or SEIU if requested by the licensee. The purpose of the informal conference is to resolve the matter without an administrative hearing. If a resolution is reached at the informal conference, the local licensing authority must document the outcome in writing and no administrative hearing is needed.

(b) ADMINISTRATIVE HEARING. If a resolution is not reached as a result of the informal conference, the resident or the resident’s representative may request an administrative hearing. If the resident is being moved or transferred with less than 30 calendar days’ notice according to section (11)(c) of this rule, the hearing must be held within seven business days of the move or transfer. The licensee must hold a space available for the resident pending receipt of an administrative order. These administrative rules and ORS 441.605(4) governing transfer notices and hearings for residents of long-term care facilities apply to adult foster homes.

(13) CLOSURE OF ADULT FOSTER HOMES.

(a) A licensee must notify the local licensing authority prior to the voluntary closure, proposed sale, or transfer of ownership of the home, and give the residents and the residents’ families, representatives, and case managers, as appropriate, a minimum of 30 calendar days’ written notice on the Department’s form (SDS 901) according to section (11) of this rule.

(b) In circumstances where undue delay might jeopardize the health, safety, or well-being of residents, licensees, or staff, written notice must be given as soon as possible, according to section (11)(c).

(c) A licensee must surrender the physical license to operate an adult foster home to the local licensing authority at the time of the adult foster home’s closure.

Stat. Auth.: ORS 410.070, 443.001, 443.004, 443.705 to 443.795, & 443.880

Stats. Implemented: ORS 197.660 to 197.670, 443.001 to 443.004, 443.705 to 443.825, 443.875, & 443.991

Hist.: SPD 31-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 22-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 9-2010, f. 6-30-10, cert. ef. 7-1-10; Renumbered from 411-050-0644, SPD 33-2013, f. 8-30-13, cert. ef. 9-1-13; APD 6-2014, f. 3-31-14, cert. ef. 4-1-14

411-050-0650

Facility and Safety Standards

In order to qualify for or maintain a license, an adult foster home must comply with the following provisions:

(1) GENERAL CONDITIONS.

(a) INTERIOR AND EXTERIOR PREMISES. The building and furnishings, patios, decks, and walkways, as applicable, must be clean and in good repair. The interior and exterior premises must be well maintained and accessible according to the individual needs of the residents. There must be no accumulation of garbage, debris, rubbish, or offensive odors. Walls, ceilings, and floors must be of such character to permit washing, cleaning, or painting, as appropriate.

(b) ADDRESS. The address numbers of the adult foster home must be placed on the home in a position that is legible and clearly visible from the street or road fronting the property. Address numbers must be a minimum of 4 inches in height, made of reflective material, and contrast with their background.

(c) LIGHTING. Adequate lighting, based on the needs of the occupants, must be provided in each room, stairway, and exit way. Incandescent light bulbs and florescent tubes must be protected with appropriate covers.

(d) TEMPERATURE. The heating system must be in working order. Areas of the home used by the residents must be maintained at a comfortable temperature. Minimum temperatures during the day must be not less than 68 degrees, no greater than 85 degrees, and not less than 60 degrees during sleeping hours. Variations from the requirements of this rule must be based on resident care needs or preferences and must be addressed in each resident’s care plan.

(A) During times of extreme summer heat, the licensee must make reasonable effort to keep the residents comfortable using ventilation, fans, or air conditioning. Precautions must be taken to prevent resident exposure to stale, non-circulating air.

(B) If the facility is air-conditioned, the system must be functional and the filters must be cleaned or changed as needed to ensure proper maintenance.

(C) If the licensee is unable to maintain a comfortable temperature for the residents during times of extreme summer heat, air conditioning or another cooling system may be required.

(e) COMMON USE AREAS. Common use areas for the residents must be accessible to all residents. There must be at least 150 square feet of common living space and sufficient furniture in the home to accommodate the recreational and socialization needs of all the occupants at one time. Common space may not be located in an unfinished basement or garage unless such space was constructed for that purpose or has otherwise been legalized under permit. There may be additional space required if wheelchairs are to be accommodated. An additional 40 square feet of common living space is required for each day care individual, room and board tenant, or relative receiving care for remuneration that exceeds the limit of five.

(f) VIDEO MONITORS. Use of video monitors detracts from a home-like environment and the licensee may not use video monitors in any area of the home that would violate a resident’s privacy unless requested by the resident or the resident’s legal representative. The licensee may not ask the resident or the resident’s legal representative to waive the resident’s right to privacy as a condition of admission to the home.

(2) SANITATION AND PRECAUTIONS.

(a) NON-MUNICIPAL WATER SOURCE. A public water supply must be utilized if available. If a non-municipal water source is used, the licensor, a sanitarian, or a technician from a certified water-testing laboratory must collect a sample annually or as required by the Department. The water sample must be tested for coliform bacteria. Water testing and any necessary corrective action to ensure water is suitable for drinking must be completed at the licensee’s expense. Water testing records must be retained for three years.

(b) Septic tanks or other non-municipal sewage disposal systems must be in good working order.

(c) COMMODES AND INCONTINENCE GARMENTS. Commodes used by residents must be emptied frequently and cleaned daily, or more frequently if necessary. Incontinence garments must be disposed of in closed containers.

(d) WATER TEMPERATURE. A resident who is unable to safely regulate the water temperature must be supervised.

(e) LAUNDRY. Prior to laundering, soiled linens and clothing must be stored in closed containers in an area that is separate from food storage, kitchen, and dining areas. Pre-wash attention must be given to soiled and wet bed linens. Sheets and pillowcases must be laundered at least weekly and more often if soiled.

(f) Garbage and refuse must be suitably stored in readily cleanable, rodent-proof, covered containers, pending weekly removal.

(g) VENTILATION. All doors and windows that are used for ventilation must have screens in good condition.

(h) INFECTION CONTROL. Standard precautions for infection control must be followed in resident care. Hands and other skin surfaces must be washed immediately and thoroughly if contaminated with blood or other body fluids.

(i) DISPOSAL OF SHARPS. Precautions must be taken to prevent injuries caused by needles, scalpels, and other sharp instruments or devices during procedures. After use, disposable syringes and needles, scalpel blades, and other sharp items must be placed in a puncture-resistant, red container for disposal. The puncture-resistant container must be located as close as practical to the use area. Disposal must be made according to local regulations and resources (ORS 459.386 to 459.405).

(j) FIRST AID. Current, basic first-aid supplies and a first-aid manual must be readily available in the home.

(k) PESTS. Reasonable precautions must be taken to prevent pests (e.g., ants, cockroaches, other insects, and rodents).

(l) PETS OR OTHER ANIMALS. Sanitation for household pets and other domestic animals on the premises must be adequate to prevent health hazards. Proof of rabies vaccinations and any other vaccinations that are required for the pet by a licensed veterinarian must be maintained on the premises. Pets not confined in enclosures must be under control and not present a danger to the residents or guests.

(m) SAFETY BARRIERS. Patios, decks, walkways, swimming pools, hot tubs, spas, saunas, water features, and stairways, as appropriate, must be equipped with safety barriers designed to prevent injury. Resident access to or use of swimming or other pools, hot tubs, spas, or saunas on the premises must be supervised.

(3) BATHROOMS. Bathrooms must:

(a) Provide individual privacy and have a finished interior with a door that opens to a hall or common-use room. If a bedroom includes a private bathroom, the door for the private bathroom must open to the bedroom. No person must have to walk through another person’s bedroom to access a bathroom;

(b) Be large enough to accommodate the individual needs of the residents and any equipment that may be necessary;

(c) Have a mirror, a window that opens or other means of ventilation, and a window covering for privacy;

(d) Be clean and free of objectionable odors;

(e) Have bathtubs, showers, toilets, and sinks in good repair. A sink must be located near each toilet and a toilet and sink must be available for the resident’s use on each floor with resident rooms. There must be at least one toilet, one sink, and one bathtub or shower for each six household occupants (including residents, day care individuals, room and board tenants, the licensee, and the licensee’s family);

(f) Have hot and cold water at each bathtub, shower, and sink in sufficient supply to meet the needs of the residents;

(g) Have nonporous surfaces for shower enclosures. Glass shower doors, if applicable, must be tempered safety glass, otherwise, shower curtains must be clean and in good condition;

(h) Have non-slip floor surfaces in bathtubs and showers;

(i) Have grab bars for each toilet, bathtub, and shower to be used by the residents for safety;

(j) Have barrier-free access to toilet and bathing facilities; and

(k) Have adequate supplies of toilet paper and soap supplied by the licensee. Residents must be provided with individual towels and washcloths that are laundered in hot water at least weekly or more often if necessary. Residents must have appropriate racks or hooks for drying bath linens. If individual hand towels are not provided, roller-dispensed hand towels or paper towels in a dispenser must be provided for the residents’ use.

(4) BEDROOMS.

(a) Bedrooms for all household occupants must:

(A) Have been constructed as a bedroom when the home was built, or remodeled under permit;

(B) Be finished with walls or partitions of standard construction that go from floor to ceiling;

(C) Have a door that opens directly to a hallway or common use room without passage through another bedroom or common bathroom. The bedroom door must be large enough to accommodate the occupant of the room and any mobility equipment that may be needed by the resident;

(D) Be adequately ventilated, heated, and lighted with at least one window that opens and meets the requirements in section (5)(e) of this rule;

(E) Be at least 70 square feet of usable floor space for one resident or 120 square feet for two residents excluding any area where a sloped ceiling does not allow a person to stand upright; and

(F) Have no more than two occupants per room. (See also OAR 411-050-0632 pertaining to a child’s bedroom.) This rule is not intended to prohibit a child five years of age or younger from occupying their parent’s bedroom.

(b) The licensee, any other caregivers, and family members may not sleep in areas designated as living areas or share a bedroom with a resident. This rule is not intended to prohibit a caregiver or other person of the resident’s choosing from temporarily staying in the resident’s room when required by the resident’s condition.

(c) There must be a bed at least 36 inches wide for each resident consisting of a mattress and springs, or equivalent, in good condition. Cots, rollaways, bunks, trundles, daybeds with restricted access, couches, and folding beds may not be used for residents. Each bed must have clean bedding in good condition consisting of a bedspread, mattress pad, two sheets, a pillow, a pillowcase, and blankets adequate for the weather. Waterproof mattress covers must be used for incontinent residents. Day care individuals may use a cot or rollaway bed if bedroom space is available that meets the requirements of section (4)(a) of this rule. A resident’s bed may not be used by a day care individual.

(d) Each resident’s bedroom must have separate, private dresser and closet space sufficient for the resident’s clothing and personal effects including hygiene and grooming supplies. A resident must be provided private, secure storage space to keep and use reasonable amounts of personal belongings. A licensee may not use a resident’s bedroom for storage of items, supplies, devices, or appliances that do not belong to the resident.

(e) Drapes or shades for bedroom windows must be in good condition and allow privacy for the residents.

(f) A resident who is non-ambulatory, has impaired mobility, or is cognitively impaired must have a bedroom with a safe, second exit at ground level. A resident with a bedroom above or below the ground floor must demonstrate their capability for self-preservation.

(g) Resident bedrooms must be in close enough proximity to the licensee or caregiver in charge to alert the licensee or caregiver in charge to resident nighttime needs or emergencies, or the bedrooms must be equipped with a functional call bell or intercom within the residents’ abilities to operate. Intercoms may not violate the resident’s right to privacy and must have the capability of being turned off by the resident or at the resident’s request.

(h) Bedrooms used by the licensee, resident manager, shift caregiver, and substitute caregiver, as applicable, must be located in the adult foster home and must have direct access to the residents through an interior hallway or common use room.

(5) SAFETY.

(a) FIRE AND LIFE SAFETY. Buildings must meet all applicable state and local building, mechanical, and housing codes for fire and life safety. The home may be inspected for fire safety by the State Fire Marshal’s Office, or the State Fire Marshal’s designee, at the request of the local licensing authority or the Department using the standards in these rules, as appropriate.

(b) HEAT SOURCES. All heating equipment, including but not limited to wood stoves, pellet stoves, and fireplaces must be installed in accordance with all applicable state and local building and mechanical codes. Heating equipment must be in good repair, used properly, and maintained according to the manufacturer’s or a qualified inspector’s recommendations.

(A) A licensee who does not have a permit verifying proper installation of an existing woodstove, pellet stove, or gas fireplace must have it inspected by a qualified inspector, Certified Oregon Chimney Sweep Association member, or Oregon Hearth, Patio, and Barbeque Association member and follow their recommended maintenance schedule.

(B) Fireplaces must have approved and listed protective glass screens or metal mesh screens anchored to the top and bottom of the fireplace opening.

(C) The local licensing authority may require the installation of a non-combustible, heat-resistant, safety barrier 36 inches around a woodstove to prevent residents with ambulation or confusion problems from coming in contact with the stove.

(D) Unvented, portable oil, gas, or kerosene heaters are prohibited. Sealed electric transfer heaters or electric space heaters with tip-over, shut-off capability may be used when approved by the State Fire Marshal or the State Fire Marshal’s designee. A heater must be directly connected to an electrical outlet and may not be connected to an extension cord.

(c) EXTENSION CORDS AND ADAPTORS. Extension cord wiring and multi-plug adaptors may not be used in place of permanent wiring. UL-approved, re-locatable power taps (RPTs) with circuit breaker protection and no more than six electrical sockets are permitted for indoor use only and must be installed and used in accordance with the manufacturer’s instructions. If RPTs are used, the RPT must be directly connected to an electrical outlet, never connected to another RPT (known as daisy-chaining or piggy-backing), and never connected to an extension cord.

(d) LOCKS AND ALARMS. Hardware for all exit doors and interior doors must be readily visible, have simple hardware that may not be locked against exit, and have an obvious method of operation. Hasps, sliding bolts, hooks and eyes, slide chain locks, and double key deadbolts are not permitted. If a home has a resident with impaired judgment who is known to wander away, the home must have an activated alarm system to alert a caregiver of the resident’s unsupervised exit.

(e) WINDOWS. Bedrooms must have at least one window or exterior door that leads directly outside, readily opens from the inside without special tools, and provides a clear opening of not less than 821 square inches (5.7 sq. ft.), with the least dimensions not less than 24 inches in height or 20 inches in width. If the interior sill height of the window is more than 44 inches from the floor level, approved steps or other aids to the window exit that the occupants are capable of using must be provided. Windows with a clear opening of not less than 5.0 square feet or 720 square inches with interior sill heights of no more than 48 inches above the floor may be accepted when approved by the State Fire Marshal or the State Fire Marshal’s designee.

(f) CONSTRUCTION. Interior and exterior doorways must be wide enough to accommodate the mobility equipment used by the residents such as wheelchairs and walkers. All interior and exterior stairways must be unobstructed, equipped with handrails on both sides, and appropriate to the condition of the residents. (See also section (5)(q) of this rule)

(A) Buildings must be of sound construction with wall and ceiling flame spread rates at least substantially comparable to wood lath and plaster or better. The maximum flame spread index of finished materials may not exceed 200 and the smoke developed index may not be greater than 450. If more than 10 percent of combined wall and ceiling areas in a sleeping room or exit way is composed of readily combustible material such as acoustical tile or wood paneling, such material must be treated with an approved flame retardant coating. Exception: Buildings supplied with an approved automatic sprinkler system.

(i) MANUFACTURED HOMES. A manufactured home (formerly mobile homes) must have been built since 1976 and designed for use as a home rather than a travel trailer. The manufactured home must have a manufacturer’s label permanently affixed on the unit itself that states the manufactured home meets the requirements of the Department of Housing and Urban Development (HUD). The required label must read as follows: “As evidenced by this label No. ABC000001, the manufacturer certifies to the best of the manufacturer’s knowledge and belief that this mobile home has been inspected in accordance with the requirements of the Department of Housing and Urban Development and is constructed in conformance with the Federal Mobile Home Construction and Safety Standards in effect on the date of manufacture. See date plate.”

(ii) If such a label is not evident and the licensee believes the manufactured home meets the required specifications, the licensee must take the necessary steps to secure and provide verification of compliance from the home’s manufacturer.

(iii) Manufactured homes built since 1976 meet the flame spread rate requirements and do not have to have paneling treated with a flame retardant coating.

(B) STRUCTURAL CHANGES. The licensee must notify the local licensing authority in writing at least 15 calendar days prior to any remodeling, renovations, or structural changes in the home that require a building permit. Such activity must comply with local building, sanitation, utility, and fire code requirements applicable to a single-family dwelling (see ORS 443.760(1)). The licensee must forward all required permits and inspections, an evacuation plan as described in section (5)(k) of this rule, and a revised floor plan as described in section (5)(o) of this rule to the local licensing authority within 30 calendar days of completion.

(g) FIRE EXTINGUISHERS. At least one fire extinguisher with a minimum classification of 2-A:10-B:C must be mounted in a location visible and readily accessible to any occupant of the home on each floor, including basements. Fire extinguishers must be checked at least once a year by a qualified person who is well versed in fire extinguisher maintenance. All recharging and hydrostatic testing must be completed by a qualified agency properly trained and equipped for this purpose.

(h) CARBON MONOXIDE AND SMOKE ALARMS.

(A) CARBON MONOXIDE ALARMS. Carbon monoxide alarms must be listed as complying with ANSI/UL 2034 and must be installed and maintained in accordance with the manufacturer’s instructions. Carbon monoxide alarms must be installed within 15 feet of each bedroom at the height recommended by the manufacturer.

(i) If bedrooms are located in multi-level homes, carbon monoxide alarms must be installed on each level including the basement.

(ii) Carbon monoxide alarms may be hard-wired, plug-in, or battery operated. Hard wired and plug-in alarms must be equipped with a battery back-up. Battery operated carbon monoxide alarms must be equipped with a device that warns of a low battery.

(iii) A bedroom used by a hearing-impaired occupant who may not hear the sound of a regular carbon monoxide alarm must be equipped with an additional carbon monoxide alarm that has visual or vibrating capacity.

(B) SMOKE ALARMS. Smoke alarms must be installed in accordance with the manufacturer’s instructions in each bedroom, in hallways or access areas that adjoin bedrooms, the family room or main living area where occupants congregate, any interior designated smoking area, and in basements. In addition, smoke alarms must be installed at the top of all stairways in multi-level homes.

(i) Ceiling placement of smoke alarms is recommended.

(ii) Battery operated smoke alarms or hard-wired smoke alarms with a battery backup must be equipped with a device that warns of a low battery.

(iii) A bedroom used by a hearing-impaired occupant who may not hear the sound of a regular smoke alarm must be equipped with an additional smoke alarm that has visual or vibrating capacity.

(C) All carbon monoxide alarms and smoke alarms must contain a sounding device or be interconnected to other alarms to provide, when actuated, an alarm that is audible in all sleeping rooms. The alarms must be loud enough to wake occupants when all bedroom doors are closed. Intercoms and room monitors may not be used to amplify alarms.

(D) The licensee must test all carbon monoxide alarms and smoke alarms in accordance with the manufacturer’s instructions at least monthly (per NFPA 72). Testing must be documented in the facility records. The licensee must maintain carbon monoxide alarms, smoke alarms, and fire extinguishers in functional condition. If there are more than two violations in maintaining battery operated alarms in working condition, the Department may require the licensee to hard wire the alarms into the electrical system.

(i) COMBUSTIBLES AND FIREARMS. Flammables, combustible liquids, and other combustible materials must be safely and properly stored in their original, properly labeled containers or safety containers and secured in areas to prevent tampering by residents or vandals.

(A) Oxygen and other gas cylinders in service or in storage must be adequately secured to prevent the cylinders from falling or being knocked over;

(B) No smoking signs must be visibly posted where oxygen cylinders are present;

(C) Firearms must be stored, unloaded, in a locked cabinet. The firearms cabinet must be located in an area of the home that is not accessible to the residents; and

(D) Ammunition must be secured in a locked area separate from the firearms.

(j) HAZARDOUS MATERIALS. Cleaning supplies, medical sharps containers, poisons, insecticides, and other hazardous materials must be properly stored in their original, properly labeled containers in a safe area that is not accessible to residents or near food preparation or food storage areas, dining areas, or medications.

(k) EVACUATION PLAN. An emergency evacuation plan must be developed and revised as necessary to reflect the current condition of the residents in the home. The evacuation plan must be rehearsed with all occupants.

(l) ORIENTATION TO EMERGENCY PROCEDURES. Within 24 hours of arrival, any new resident or caregiver must be shown how to respond to a smoke alarm, shown how to participate in an emergency evacuation drill, and receive an orientation to basic fire safety. New caregivers must also be oriented in how to conduct an evacuation.

(m) EVACUATION DRILL. An evacuation drill must be held at least once every 90 calendar days, with at least one evacuation drill per year conducted during sleeping hours. The evacuation drill must be clearly documented, signed by the caregiver conducting the drill, and maintained according to OAR 411-050-0645.

(A) The licensee and all other caregivers must:

(i) Be able to demonstrate the ability to evacuate all occupants from the facility to the initial point of safety within three minutes or less. The initial point of safety must:

(I) Be exterior to and a minimum of 25 feet away from the structure;

(II) Have direct access to a public sidewalk or street; and

(III) Not be in the backyard of a home unless the backyard directly accesses a public street or sidewalk.

(ii) Be able to demonstrate the ability to further evacuate all occupants from the initial point of safety to the final point of safety within two minutes or less. The final point of safety must:

(I) Be a minimum of 50 feet away from the structure; and

(II) Located on a public sidewalk or street;

(B) Conditions may be applied to a license if the licensee or caregivers demonstrate the inability to meet the evacuation times described in this section. Conditions may include but are not limited to reduced capacity of residents, additional staffing, or increased fire protection. Continued problems are grounds for revocation or non-renewal of the license.

(n) FLOOR PLAN. The licensee must develop a current and accurate floor plan that indicates:

(A) The size of rooms;

(B) Which bedrooms are to be used by residents, the licensee, caregivers, for day care, and room and board tenants, as applicable;

(C) The location of all the exits on each level of the home, including emergency exits such as windows;

(D) The location of wheelchair ramps;

(E) The location of all fire extinguishers, smoke alarms, and carbon monoxide alarms;

(F) The planned evacuation routes, initial point of safety, and final point of safety; and

(G) Any designated smoking areas in or on the adult foster home’s premises.

(o) RESIDENT PLACEMENT. A resident, who is unable to walk without assistance or not capable of self-preservation, may not be placed in a bedroom on a floor without a second ground level exit. (See also section (4)(f) of this rule)

(p) STAIRS. Stairs must have a riser height of between 6 to 8 inches and tread width of between 8 to 10.5 inches. Lifts or elevators are not an acceptable substitute for a resident’s capability to ambulate stairs. (See also section (5)(f) of this rule)

(q) EXIT WAYS. All exit ways must be barrier free and the corridors and hallways must be a minimum of 36 inches wide or as approved by the State Fire Marshal or the State Fire Marshal’s designee. Interior doorways used by the residents must be wide enough to accommodate wheelchairs and walkers if used by residents and beds if used for evacuation purposes. Any bedroom window or door identified as an exit must remain free of obstacles that would interfere with evacuation.

(r) RAMPS. There must be at least one wheelchair ramp from a minimum of one exterior door if an occupant of the home is non-ambulatory. A licensee may be required to bring existing ramps into revised compliance if necessary to meet the needs of new residents or current residents with increased care needs. Wheelchair ramps must comply with the Americans with Disabilities Act (ADA) and must:

(A) Have the least possible slope with a maximum slope of 1 inch rise in each 12 inches of distance;

(B) Have a maximum rise for any run of 30 inches;

(C) Have a minimum clear width of 36 inches;

(D) Have landings with a minimum clear length of 60 inches at the top and bottom of each ramp and each ramp run;

(E) Have handrails on both sides of the ramp if the ramp has a rise of 6 inches or more or a run of 72 inches or more. Handrails must:

(i) Be continuous or must extend 12 inches beyond the top and bottom of the ramp segment;

(ii) Have a clear space of 1 1/2 inches between the handrail and the wall;

(iii) Mounted between 34 and 38 inches above the ramp surface; and

(iv) Rounded at the ends or returned smoothly to the floor, wall, or post.

(F) Have curbs, walls, railings, or projecting surfaces that prevent people from slipping off the ramp if the ramp or landing has a drop off. Curbs must be a minimum of 2 inches high;

(G) Be designed so water does not accumulate on walking surfaces; and

(H) Have non-skid surfaces.

(s) EMERGENCY EXITS. There must be a second safe means of exit from all sleeping rooms. A provider whose sleeping room is above the first floor may be required to demonstrate at the time of licensure, renewal, or inspection, an evacuation drill from the provider’s sleeping room using the secondary exit.

(t) FLASHLIGHT. There must be at least one plug-in, rechargeable flashlight in good functional condition available on each floor of the home for emergency lighting.

(u) SMOKING. If smoking is allowed in a home, the licensee must adopt house policies that restrict smoking to designated areas.

(A) Smoking is prohibited in:

(i) Any bedroom including that of the residents, licensee, resident manager, any other caregiver, occupant, or visitor;

(ii) Any room where oxygen is used; and

(iii) Anywhere flammable materials are stored.

(B) Ashtrays of noncombustible material and safe design must be provided in areas where smoking is permitted.

(v) EMERGENCY PREPAREDNESS PLAN. A licensee must develop and maintain a written emergency preparedness plan for the protection of all occupants in the home in the event of an emergency or disaster.

(A) The written emergency plan must:

(i) Include an evaluation of potential emergency hazards including but not limited to:

(I) Prolonged power failure or water or sewer loss;

(II) Fire, smoke, or explosion;

(III) Structural damage;

(IV) Hurricane, tornado, tsunami, volcanic eruption, flood, or earthquake;

(V) Chemical spill or leak; and

(VI) Pandemic.

(ii) Include an outline of the caregiver’s duties during an evacuation;

(iii) Consider the needs of all occupants of the home including but not limited to:

(I) Access to medical records necessary to provide services and treatment;

(II) Access to pharmaceuticals, medical supplies, and equipment during and after an evacuation; and

(III) Behavioral support needs.

(iv) Include provisions and supplies sufficient to shelter in place for a minimum of three days without electricity, running water, or replacement staff; and

(v) Planned relocation sites.

(B) The licensee must notify the Department or the local licensing authority of the homes status in the event of an emergency that requires evacuation and during any emergent situation when requested.

(C) The licensee must re-evaluate the emergency preparedness plan at least annually and whenever there is a significant change in the home.

Stat. Auth.: ORS 410.070, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, & 443.790

Stats. Implemented: ORS 443443.001 to 443.004, 443.705 to 443.825, 443.875, & 443.991

Hist.: SSD 14-1985, f. 12-31-85 ef. 1-1-86; SSD 11-1988, f. 10-18-88, cert. ef. 11-1-88, Sections (8) thru (10) renumbered to 411-050-0447; SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1996, f. 3-29-96, cert. ef. 4-1-96; SDSD 2-1998(Temp), f. & cert. ef. 2-6-98 thru 8-1-98; SDSD 6-1998, f. 7-31-98, cert. ef. 8-1-98; SDSD 4-2001, f. & cert. ef. 3-1-01; SPD 31-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 9-2007, f. 6-27-07, cert. ef. 7-1-07; SPD 9-2010, f. 6-30-10, cert. ef. 7-1-10; Renumbered from 411-050-0445, SPD 33-2013, f. 8-30-13, cert. ef. 9-1-13; APD 6-2014, f. 3-31-14, cert. ef. 4-1-14

411-050-0660

Qualifications and Requirements for Ventilator-Assisted Care

Adult foster homes that provide ventilator-assisted care for residents must meet the following requirements in addition to the other requirements set forth in these rules:

(1) LICENSE REQUIRED. A person or entity may not represent themselves as operating an adult foster home that provides ventilator-assisted care or accept placement of an individual requiring ventilator-assisted care without being licensed as a ventilator-assisted care adult foster home.

(2) APPLICATION. An applicant or licensee must meet and maintain compliance with OAR 411-050-0610.

(a) To apply for a license to provide ventilator-assisted care, an applicant or licensee must complete the Department’s ventilator-assisted care application form (SDS 448V) and submit the application with the required information and nonrefundable fee as outlined in OAR 411-050-0610(3) and (4) to the local licensing authority.

(b) To renew a license to provide ventilator-assisted care, a licensee must complete the Department’s ventilator-assisted care application form (SDS 448V) and submit the application with the required information and nonrefundable fee as outlined in OAR 411-050-0640(3) to the local licensing authority.

(c) Applications are processed according to OAR 411-050-0610 and 411-050-0640.

(d) Applications must be approved by the Department prior to the issuance of a ventilator-assisted care license.

(3) QUALIFICATIONS AND TRAINING. An applicant, licensee, and all other caregivers must meet and maintain compliance with OAR 411-050-0625. In addition:

(a) The applicant, licensee, resident manager, floating resident manager, or shift caregivers, as applicable, must demonstrate one year of full-time experience in providing ventilator-assisted care.

(b) The applicant or licensee, as applicable, must have experience operating a Class 3 adult foster home in substantial compliance with these rules for at least one year.

(c) An applicant for an adult foster home providing ventilator-assisted care must be the primary caregiver and live in the home where ventilator-assisted care is to be provided for a minimum of one year from the date the initial ventilator-assisted care license is issued. The licensee may employ a resident manager to be the primary live-in caregiver after providing ventilator-assisted care for the one year period. The resident manager must be approved by the local licensing authority and the Department.

(d) The applicant, licensee, and all other caregivers must successfully complete the Department’s approved training pertaining to ventilator-assisted care and other training as required. Training is required on an annual basis and must be completed by the licensee, resident manager, floating resident manager, shift caregivers, and substitute caregivers, as applicable, prior to approval of a renewed ventilator-assisted care license.

(4) CLASSIFICATION. An applicant for a ventilator-assisted care license must possess the minimum qualifications outlined in section (3) of this rule. The applicant and licensee must meet and maintain compliance with OAR 411-050-0630. The local licensing authority shall issue a Level A, Level B, or Level C ventilator-assisted care adult foster home license to qualified applicants.

(a) A licensee with a Level C ventilator-assisted care license may admit a maximum of one resident who requires ventilator-assisted care. The local licensing authority may issue a Level C license if the applicant has:

(A) Satisfied the requirements described in section (3) above; and

(B) Successfully operated a Class 3 home in substantial compliance with these rules for a period of not less than one year.

(b) A licensee with a Level B ventilator-assisted care license may admit a maximum of three residents who require ventilator-assisted care. The local licensing authority may issue a Level B license if the licensee has:

(A) Satisfied the requirements described in section (3) above; and

(B) Successfully operated and provided ventilator-assisted care in their Level C home in substantial compliance with these rules for a period of not less than one year; or

(C) The applicant or licensee, as applicable, has a current license as a health care professional in Oregon.

(c) A licensee with a Level A ventilator-assisted care license may admit a maximum of five residents who require ventilator-assisted care. The local licensing authority may issue a Level A license if the licensee has:

(A) Satisfied the requirements described in section (3) above; and

(B) Successfully operated and provided ventilator-assisted care in their Level B home in substantial compliance with these rules for a period of not less than one year.

(5) CAPACITY. An applicant and licensee must meet and maintain compliance with OAR 411-050-0632. The number of residents permitted to reside in a ventilator-assisted care adult foster home is determined by the level of the home, the ability of the staff to meet the care needs of the residents, the fire and life safety standards, and compliance with these rules. A licensee may only admit or continue to provide ventilator-assisted care for residents according to the level of the home’s license. A licensee may admit other residents who do not require ventilator-assisted care within the approved license capacity listed on the home’s license.

(6) OPERATIONAL STANDARDS. A licensee must meet and maintain compliance with OAR 411-050-0645. In addition:

(a) A minimum of two qualified and approved caregivers must be on site and available to meet the routine and emergency care and service needs of the residents 24 hours a day. A minimum of one of the two qualified and approved caregivers must be awake during nighttime hours.

(b) All caregivers must demonstrate competency in providing ventilator-assisted care.

(c) All caregivers must be able to evacuate the residents and any other occupants of the home within three minutes or less.

(d) The applicant and licensee must have a satisfactory system in place to ensure the caregivers are alert to the 24-hour needs of residents who may be unable to independently call for assistance.

(e) All caregivers must know how to operate the back-up generator without assistance and be able to demonstrate how to operate the back-up generator upon request by the Department or local licensing authority.

(7) FACILITY STANDARDS. An applicant and licensee must meet and maintain compliance with OAR 411-050-0650. In addition:

(a) The residents’ bedrooms must be a minimum of 100 square feet, or larger if necessary, to accommodate the standard requirements of OAR 411-050-0650, the needs of the resident, and the equipment and supplies necessary for the care and services needed by individuals requiring ventilator-assisted care.

(b) Homes that provide ventilator-assisted care for residents must have a functional, emergency back-up generator. The generator must be adequate to maintain electrical service for resident needs until regular service is restored. Hard wired, back-up generators must be installed by a licensed electrician. Back-up generators must be tested monthly and the test must be documented in the facility records.

(c) The home must have a functional, interconnected carbon monoxide and smoke alarm system with back-up batteries.

(d) The home must have a functional sprinkler system and maintenance of the sprinkler system must be completed as recommended by the manufacturer. A home that does not have a functional sprinkler system but was approved to provide ventilator-assisted care prior to September 1, 2013, must install a functional whole-home sprinkler system no later than July 31, 2015.

(e) Each resident’s bedroom must have a mechanism in place that enables the resident to summon a caregiver’s assistance when needed. The mechanism must be within the abilities of the resident to use. The summons must be audible in all areas of the adult foster home.

(8) STANDARDS AND PRACTICES FOR CARE AND SERVICES. Licensees must meet and maintain compliance with OAR 411-050-0655. In addition:

(a) The licensee must conduct and document a thorough screening of a prospective resident on the Department’s form (SDS 902).

(b) Prior to admitting a resident requiring ventilator care to the adult foster home, the licensee must obtain preauthorization from the Department.

(c) The licensee must have a primary care physician identified for each resident being considered for admission.

(d) The licensee must retain the services of a registered nurse (RN) consultant to work in the home who is licensed by the State of Oregon and trained in the care of individuals requiring ventilator-assisted care. RN services include but are not limited to the provision of medical consultation and supervision of resident care, skilled nursing care as needed, and delegation of nursing care to caregivers. When the licensee is an RN, a back-up RN licensed by the State of Oregon and trained in the care of individuals requiring ventilator-assisted care must be identified and available to provide nursing services in the absence of the licensee.

(e) The licensee must develop individual care plans for each resident with the RN consultant addressing the expected frequency of nursing supervision, consultation, and direct service intervention. The RN consultation must be documented on the resident’s completed care plan with the RN’s signature and date signed.

(f) The licensee must have physician, RN, and respiratory therapist consultation services, all licensed by the State of Oregon and trained in the care of individuals requiring ventilator-assisted care available on a 24-hour basis and for in-home visits as appropriate. The licensee must call the appropriate medical professional to attend to the emergent care needs of the residents.

Stat. Auth.: ORS 410.070, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, & 443.790

Stats. Implemented: ORS 410.070, 443.001 to 443.004, 443.705 to 443.825, 443.875, & 443.991

Hist.: SSD 14-1985, f. 12-31-85, ef. 1-1-86; SSD 11-1988, f. 10-18-88, cert. ef. 11-1-88, Renumbered from 411-050-0445(8) thru (10); SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1996, f. 3-29-96, cert. ef. 4-1-96; SDSD 4-2001, f. & cert. ef. 3-1-01; SPD 31-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 9-2010, f. 6-30-10, cert. ef. 7-1-10; Renumbered from 411-050-0491, SPD 33-2013, f. 8-30-13, cert. ef. 9-1-13; APD 6-2014, f. 3-31-14, cert. ef. 4-1-14

411-050-0685

Civil Penalties

(1) Except as otherwise provided in this rule, civil penalties, not to exceed $100 per violation to a maximum of $250, may be assessed for a general violation of these rules.

(2) Mandatory penalties up to $500, unless otherwise required by law, shall be assessed for falsifying resident or facility records or causing another to do so.

(3) A mandatory penalty of $250 shall be imposed for failure to have either the licensee or other qualified caregiver on duty 24 hours per day in the adult foster home.

(4) A mandatory penalty of $250 shall be imposed for dismantling or removing the battery from any required smoke alarm or failing to install any required smoke alarm.

(5) The Department shall impose a civil penalty of not less than $250 nor more than $500 on a licensee who admits a resident knowing that the resident’s care needs exceed the license classification of the licensee and the admission places the resident or other residents at risk of harm.

(6) Civil penalties up to a maximum of $1,000 per occurrence may be assessed for substantiated abuse.

(7) If the Department or the Department’s designee conducts an investigation and abuse is substantiated and if the abuse resulted in the death, serious injury, rape, or sexual abuse of a resident, the Department shall impose a civil penalty of not less than $2,500 for each violation.

(a) To impose this civil penalty, the Department must establish that:

(A) The abuse arose from deliberate or other than accidental action or inaction;

(B) The conduct resulting in the abuse was likely to cause death, serious injury, rape, or sexual abuse of a resident; and

(C) The person with the finding of abuse had a duty of care toward the resident.

(b) For the purposes of this civil penalty, the following definitions apply:

(A) “Serious injury” means a physical injury that creates a substantial risk of death or that causes serious disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.

(B) “Rape” means rape in the first, second, or third degree as described in ORS 163.355, 163.365, and 163.375.

(C) “Sexual abuse” means any form of nonconsensual sexual contact including but not limited to unwanted or inappropriate touching, sodomy, sexual coercion, sexually explicit photographing, or sexual harassment. The sexual contact must be in the form of any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party.

(D) “Other than accidental” means failure on the part of the licensee, or licensee’s employees, agents, or volunteers for whose conduct licensee is responsible, to comply with applicable Oregon Administrative Rules.

(8) In addition to any other liability or penalty provided by law, the Department may impose a penalty for any of the following:

(a) Operating the home without a license;

(b) The number of residents exceeds the licensed capacity;

(c) The licensee fails to achieve satisfactory compliance with the requirements of these rules within the time specified, or fails to maintain such compliance;

(d) The home is unable to provide adequate level of care to the residents;

(e) There is retaliation or discrimination against a resident, family, employee, or any other person for making a complaint against the home;

(f) The licensee fails to cooperate with the Department or fails to cooperate with the prescribing practitioner or licensed health care professional in carrying out a resident’s care plan; or

(g) The licensee fails to obtain an approved background check from the Department prior to employing a caregiver in the home.

(9) A civil penalty may be imposed for violations other than those involving the health, safety, or welfare of a resident if the licensee fails to correct the violation as required when a reasonable time frame for correction was given.

(10) Any civil penalty imposed under this rule becomes due and payable 10 calendars days after the order imposing the civil penalty becomes final by operation of law or on appeal. The notice must be delivered in person or sent by registered or certified mail and must include:

(a) A reference to the particular sections of the statute, rule, standard, or order involved;

(b) A short and plain statement of the matters asserted or charged;

(c) A statement of the amount of the penalty or penalties imposed; and

(d) A statement of the right to request a hearing.

(11) The person to whom the notice is addressed shall have 10 calendar days after receipt of the notice in which to make written application for a hearing. If a written request for a hearing is not timely received, the Department shall issue a final order by default.

(12) All hearings shall be conducted according to the applicable provisions of ORS 183.

(13) When imposing a civil penalty, the Department shall consider the following factors:

(a) The past history of the person incurring the penalty in taking all feasible steps or procedures to correct the violation;

(b) Any prior violations of statutes, rules, or orders pertaining to the facility;

(c) The economic and financial conditions of the person incurring the penalty;

(d) The immediacy and extent to which the violation threatens or threatened the health, safety, or welfare of one or more residents; and

(e) The degree of harm to residents.

(14) If the person notified fails to request a hearing within the time specified, or if after a hearing the person is found to be in violation of a license, rule, or order, an order may be entered assessing a civil penalty.

(15) Unless the penalty is paid within 10 calendar days after the order becomes final, the order constitutes a judgment and may be recorded by the county clerk, which becomes a lien upon the title to any interest in real property owned by that person. The Department may also initiate a notice of revocation for failure to comply with a final order.

(16) Civil penalties are subject to judicial review under ORS 183.480, except that the court may, at its discretion, reduce the amount of the penalty.

(17) All penalties recovered under ORS 443.790 to 443.815 are paid to the Quality Care Fund.

Stat. Auth.: ORS 410.070, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, & 443.790

Stats. Implemented: ORS 443.001 to 443.004, 443.705 to 443.825, 443.875, & 443.991

Hist.: SSD 11-1988, f. 10-18-88, cert. ef. 11-1-88; SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1996, f. 3-29-96, cert. ef. 4-1-96; SDSD 4-2001, f. & cert. ef. 3-1-01; SPD 31-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 22-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 9-2010, f. 6-30-10, cert. ef. 7-1-10 Renumbered from 411-050-0487, SPD 33-2013, f. 8-30-13, cert. ef. 9-1-13; APD 6-2014, f. 3-31-14, cert. ef. 4-1-14


Rule Caption: Long Term Care Assessment

Adm. Order No.: APD 7-2014

Filed with Sec. of State: 4-1-2014

Certified to be Effective: 4-1-14

Notice Publication Date: 3-1-2014

Rules Amended: 411-069-0000, 411-069-0010, 411-069-0020, 411-069-0030, 411-069-0040, 411-069-0050, 411-069-0060, 411-069-0070, 411-069-0080, 411-069-0090, 411-069-0100, 411-069-0110, 411-069-0120, 411-069-0130, 411-069-0140, 411-069-0150, 411-069-0160, 411-069-0170

Rules Repealed: 411-069-0000(T), 411-069-0010(T), 411-069-0020(T), 411-069-0030(T), 411-069-0040(T), 411-069-0050(T), 411-069-0060(T), 411-069-0070(T), 411-069-0080(T), 411-069-0090(T), 411-069-0100(T), 411-069-0110(T), 411-069-0120(T), 411-069-0130(T), 411-069-0140(T), 411-069-0150(T), 411-069-0160(T), 411-069-0170(T)

Subject: The Department of Human Services (Department) is permanently updating the rules in OAR chapter 411, division 069 for long term care assessment to make permanent temporary rule language that became effective on October 7, 2013.

   The proposed rules implement House Bill 2216 (2013) which directs the Department to reauthorize the long term care assessment and eliminate all long term care assessment exemptions except for nursing facilities operated by the Oregon Department of Veterans’ Affairs.

Rules Coordinator: Kimberly Colkitt-Hallman—(503) 945-6398

411-069-0000

Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 069:

(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 assessment as correctly computed exceeds the assessment, if any, reported by the facility. If, after the original deficiency has been assessed, subsequent information shows the correct amount of assessment to be greater than previously determined, an additional deficiency arises.

(4) “Delinquency” means the facility failed to pay the assessment as correctly computed when the assessment 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. 1396.

(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 Ch. 736

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; SPD 41-2013(Temp), f. & cert. ef. 10-7-13 thru 4-5-14; APD 7-2014, f. & cert. ef. 4-1-14

411-069-0010

General Administration

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

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

(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 assessments.

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

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

Stat. Auth.: ORS 409.050, 410.070 & 411.060

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

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; SPD 41-2013(Temp), f. & cert. ef. 10-7-13 thru 4-5-14; APD 7-2014, f. & cert. ef. 4-1-14

411-069-0020

Disclosure of Information

(1) Except as otherwise provided by law, the Department may 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 assessments. 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 shall 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 assessments.

Stat. Auth.: ORS 409.050, 410.070, & 411.060

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; SPD 41-2013(Temp), f. & cert. ef. 10-7-13 thru 4-5-14; APD 7-2014, f. & cert. ef. 4-1-14

411-069-0030

Entities Subject to the Long Term Care Facility Assessment

(1) Each long term care facility in Oregon is subject to the long term care facility assessment except the home and long term care facilities operated by the Oregon Department of Veterans’ Affairs that receive 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 assessment only applies for the specific period of time described in the notice from the Department.

(2) The Director shall 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 411-069-0000 that are exempt from the long term care facility assessment 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 Budget 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.

(4) Effective January 1, 2014, each long term care facility in Oregon is subject to the long term care facility assessment, except nursing facilities operated by the Oregon Department of Veterans’ Affairs. A waivered long term care facility as defined in OAR 411-069-0000(11) is no longer exempt from the long term care facility assessment.

Stat. Auth.: ORS 409.050, 410.070 & 411.060

Stats. Implemented: ORS 409.750, OL 2003 Ch. 736, OL 2013 ch. 608

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; SPD 41-2013(Temp), f. & cert. ef. 10-7-13 thru 4-5-14; APD 7-2014, f. & cert. ef. 4-1-14

411-069-0040

Long Term Care Facility Assessment: Calculation, Report, Due Date

(1) The assessment is assessed upon each patient day, including Medicaid patient day, at a long term care facility. The amount of the assessment 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 shall be determined in accordance with these rules.

(2) The facility must pay the assessment 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 assessment is being reported, unless the Department permits a later payment date. If a facility requests an extension, the Department, in its sole discretion, shall 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 assessment 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 October 31 of each year regardless of whether any additional assessment is owed as a result of that filing.

(4) Revenue reports submitted late are subject to penalty as set forth in OAR 411-069-0080. Nursing facility financial statements submitted late are subject to a penalty as set forth in 411-070-0300, where applicable.

(5) Any assessment 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 411-069-0080.

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

(7) 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.

(8) 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.

(9) 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 assessments that may also be due.

Stat. Auth.: ORS 409.050, 410.070 & 411.060

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

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; SPD 41-2013(Temp), f. & cert. ef. 10-7-13 thru 4-5-14; APD 7-2014, f. & cert. ef. 4-1-14

411-069-0050

Filing an Amended Report

(1) Claims for refunds or payments for additional assessment 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 assessment due is less than the amount paid by the facility and the facility does not then owe an assessment for any other calendar period, the overpayment may be refunded by the Department to the facility. The facility may request a refund by amending their quarterly report and submitting a written request for refund to the Department, or the facility may request a refund when filing their nursing facility financial statement or revenue report.

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

(3) Payment of deficiency.

(a) If the amount of the assessment 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 411-069-0080 shall 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 assessment 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 shall 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 assessment rules that it determines may give rise to the issuance of a notice of proposed action or the issuance of a refund, the Department shall issue notification pursuant to OAR 411-069-0100.

Stat. Auth.: ORS 409.050, 410.070 & 411.060

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

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; SPD 41-2013(Temp), f. & cert. ef. 10-7-13 thru 4-5-14; APD 7-2014, f. & cert. ef. 4-1-14

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 Ch. 736

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; SPD 41-2013(Temp), f. & cert. ef. 10-7-13 thru 4-5-14; APD 7-2014, f. & cert. ef. 4-1-14

411-069-0070

Assessment 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 shall determine the assessment liability of the facility according to the best of its information and belief. Best of its information and belief means the Department shall use evidence on which a reasonable person may rely in determining the assessment, 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 assessment liability shall 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 Ch. 736

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; SPD 41-2013(Temp), f. & cert. ef. 10-7-13 thru 4-5-14; APD 7-2014, f. & cert. ef. 4-1-14

411-069-0080

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

(1) A long term care facility that fails to file a quarterly report or pay a quarterly assessment when due under OAR 411-069-0040 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 assessments 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 411-069-0040 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 411-069-0040 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 assessment payment when due under OAR 411-069-0040 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 shall 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 assessment.

(8) If the Department determines that a facility is subject to a penalty under this section, the Department shall issue a notice of proposed action as described in OAR 411-069-0100.

(9) If a facility requests a contested case hearing pursuant to OAR 411-069-0120, 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 assessment after the Department issues a final order described in OAR 411-069-0130, then the Department shall pursue remedies described in 411-069-0140 that may include:

(a) A final order leading to collection activities;

(b) Nursing facility license denial, suspension, or revocation;

(c) Admission restrictions; or

(d) Terminating provider contracts.

Stat. Auth.: ORS 409.050, 410.070 & 411.060

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

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; SPD 41-2013(Temp), f. & cert. ef. 10-7-13 thru 4-5-14; APD 7-2014, f. & cert. ef. 4-1-14

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 an assessment 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 assessment 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 Ch. 736

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; SPD 41-2013(Temp), f. & cert. ef. 10-7-13 thru 4-5-14; APD 7-2014, f. & cert. ef. 4-1-14

411-069-0100

Notice of Proposed Action

(1) Prior to issuing a notice of proposed action, the Department shall notify the facility of a potential deficiency or failure to report that may 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 411-069-0050 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 does 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 assessment for the quarter;

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

(d) The amount of assessment 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 shall 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

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; SPD 41-2013(Temp), f. & cert. ef. 10-7-13 thru 4-5-14; APD 7-2014, f. & cert. ef. 4-1-14

411-069-0110

Required Notice

(1) Any notice required to be sent to the facility shall 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 shall 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 Ch. 736

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; SPD 41-2013(Temp), f. & cert. ef. 10-7-13 thru 4-5-14; APD 7-2014, f. & cert. ef. 4-1-14

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 shall preclude the Department and the facility from agreeing to an informal disposition of the contested case at any time, consistent with ORS 183.417.

(5) If the case proceeds to a hearing, the administrative law judge shall 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 Ch. 736

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; SPD 41-2013(Temp), f. & cert. ef. 10-7-13 thru 4-5-14; APD 7-2014, f. & cert. ef. 4-1-14

411-069-0130

Final Order of Payment

The Department shall 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 Ch. 736

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; SPD 41-2013(Temp), f. & cert. ef. 10-7-13 thru 4-5-14; APD 7-2014, f. & cert. ef. 4-1-14

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 Ch. 736

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; SPD 41-2013(Temp), f. & cert. ef. 10-7-13 thru 4-5-14; APD 7-2014, f. & cert. ef. 4-1-14

411-069-0150

Calculation of Long Term Care Facility Assessment

(1) The amount of the assessment 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 shall establish an annual assessment rate for long term care facilities that applies for each 12-month period beginning July 1. The Director shall 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 shall refund any overages from the prior fiscal year. For example, by October 31, 2013, the Department shall refund any overages from fiscal year 2012. Overages are defined as any amount of provider assessment that exceeds the federal maximum provider assessment limit in effect for the fiscal year.

Stat. Auth.: ORS 409.050, 410.070 & 411.060

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

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; SPD 41-2013(Temp), f. & cert. ef. 10-7-13 thru 4-5-14; APD 7-2014, f. & cert. ef. 4-1-14

411-069-0160

Limitations on the Imposition of the Long Term Care Facility Assessment

The long term care facility assessment 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 Ch. 736

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; SPD 41-2013(Temp), f. & cert. ef. 10-7-13 thru 4-5-14; APD 7-2014, f. & cert. ef. 4-1-14

411-069-0170

Sunset Provision

The long term care assessment applies to long term care facility gross revenue received on or after June 2003 and before July 1, 2020.

Stat. Auth.: ORS 409.050, 410.070 & 411.060

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

Hist.: DMAP 2-2008, f. & cert. ef. 1-25-08; Renumbered from 410-050-0601, SDP 3-2021, f. & cert. ef. 2-1-11; SPD 41-2013(Temp), f. & cert. ef. 10-7-13 thru 4-5-14; APD 7-2014, f. & cert. ef. 4-1-14


Rule Caption: Proctor Care Residential Services for Children with Intellectual or Developmental Disabilities

Adm. Order No.: APD 8-2014

Filed with Sec. of State: 4-1-2014

Certified to be Effective: 4-1-14

Notice Publication Date: 3-1-2014

Rules Repealed: 411-335-0010, 411-335-0020, 411-335-0030, 411-335-0040, 411-335-0060, 411-335-0120, 411-335-0130, 411-335-0150, 411-335-0160, 411-335-0170, 411-335-0180, 411-335-0190, 411-335-0200, 411-335-0210, 411-335-0220, 411-335-0230, 411-335-0240, 411-335-0250, 411-335-0260, 411-335-0270, 411-335-0280, 411-335-0290, 411-335-0310, 411-335-0320, 411-335-0330, 411-335-0340, 411-335-0350, 411-335-0360

Subject: The Department of Human Services is permanently repealing the rules in OAR chapter 411, division 335 for proctor care residential services for children with intellectual or developmental disabilities. Proctor care residential services were not included as a waiver or Community First Choice State plan option because of concerns regarding third party payments to proctor care providers as well as the potential for violations for the payment of bundled rates under the Social Security Act.

Rules Coordinator: Kimberly Colkitt-Hallman—(503) 945-6398

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, 2013.

2.) Copyright Oregon Secretary of State: Terms and Conditions of Use

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