Loading

Oregon Bulletin

August 1, 2011

 

Department of Human Services,
Administrative Services Division and Director’s Office
Chapter 407

Rule Caption: Privacy Rules Setting Forth General Procedures Governing the Collection, Use and Disclosure of Protected Information.

Adm. Order No.: DHSD 2-2011(Temp)

Filed with Sec. of State: 7-1-2011

Certified to be Effective: 7-1-11 thru 12-27-11

Notice Publication Date:

Rules Adopted: 407-014-0015

Rules Amended: 407-014-0000, 407-014-0020, 407-014-0030, 407-014-0040, 407-014-0050, 407-014-0060, 407-014-0070

Subject: These rules govern the collection, use and disclosure of protected information by the Department about individuals and to explain the rights and specific actions that individuals may take or request to be taken regarding the uses and disclosures of their protected information. The adoption and amendment of these rules also set forth Department requirements governing the use and disclosure of protected health information for purposes of HIPAA, 42 USC 1320-d through 1320d-8, Pub L 104-191, sec. 262 and 264, and the implementing HIPAA privacy rules, 45 CFR parts 160 and 164.

      These rules are available on the DHS Website: http://www.oregon.
gov/DHS/admin/dwssrules/index.shtml. For hardcopy requests, call: (503) 947-5250.

Rules Coordinator: Jennifer Bittel—(503) 947-5250

407-014-0000

Definitions

The following definitions apply to OAR 407-014-0000 to 407-014-0070:

(1) “Administrative Hearing” means an oral proceeding before an administrative law judge in a contested case hearing.

(2) “Authority” means the Oregon Health Authority.

(3) “Authorization” means permission from an individual or his or her personal representative giving the Department of Human Services (Department) authorization to obtain, release or use information about the individual from third parties for specified purposes or to disclose information to a third party specified by the individual.

(4) “Business Associate” means an individual or entity performing any function or activity on behalf of the Authority, including the Department, involving the use or disclosure of protected health information (PHI) and is not a member of the Authority’s workforce.

(a) For purposes of the definition of “Business Associate” “function or activity” includes but is not limited to program administration, claims processing or administration, data analysis, utilization review, quality assurance, billing, legal, actuarial, accounting, consulting, data processing, management, administrative, accreditation, financial services, and similar services for which the Authority may contract or obtain by interagency agreement, if access to PHI is involved.

(b) Business associates do not include licensees or providers unless the licensee or provider also performs some function or activity on behalf of the Authority.

(5) “Client” means an individual who requests or receives services from the Department. This includes but is not limited to applicants for or recipients of public assistance, minors and adults receiving protective services, individuals who are committed to the custody of the Department, children in the custody of the Department receiving services on a voluntary basis, and children committed to the custody of the Department.

(6) “Client Information” means personal information relating to a client that the Department may maintain in one or more locations and in various forms, reports, or documents, or stored or transmitted by electronic media.

(7) “Collect” or “Collection” means the assembling of personal information through interviews, forms, reports, or other information sources.

(8) “Contract” means a written agreement between the Department and a person or entity setting forth the rights and obligations of the parties including but not limited to contracts, licenses, agreements, interagency agreements, and intergovernmental agreements.

(9) “Correctional Institution” means any penal or correctional facility, jail, reformatory, detention center, work farm, halfway house, or residential community program center operated by contract with the federal government, a state, or an Indian tribe for the confinement or rehabilitation of persons charged with or convicted of a criminal offense or other persons held in lawful custody. “Other persons held in lawful custody” include juvenile offenders, adjudicated delinquents, aliens detained awaiting deportation, witnesses, or others awaiting charges or trial.

(10) “Corrective Action” means an action that a business associate must take to remedy a breach or violation of the business associate’s obligations under the business associate’s contractual requirement, including but not limited to reasonable steps that must be taken to cure the breach or end the violation.

(11) “Covered Entity” means health plans, health care clearinghouses, and health care providers who transmit any health information in electronic form in connection with a transaction that is subject to federal Health Insurance Portability and Accountability Act (HIPAA) requirements, as those terms are defined and used in the HIPAA regulations, 45 CFR parts 160 and 164.

(12) “De-identified Data” means client information from which the Department or other entity has deleted, redacted, or blocked identifiers so the remaining information cannot reasonably be used to identify an individual.

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

(14) “Department Workforce” means employees, volunteers, trainees, and other persons whose conduct, in the performance of work for the Department, is under the direction and control of the Department, whether or not they are paid by the Department.

(15) “Disclose” means the release, transfer, relay, provision of access to, or conveying of client information to any individual or entity outside the Department.

(16) “Health Care” means care, services, or supplies related to the health of an individual. Health care includes but is not limited to preventive, diagnostic, therapeutic, rehabilitative, maintenance, palliative care, counseling services, assessment, or procedures with respect to the physical or mental condition, or functional status of an individual, or that affects the structure or function of the body and the sale or dispensing of a drug, device, equipment, or other prescribed item.

(17) “Health Care Operations” means any activities of a covered entity to the extent that the activities are related to health care, Medicaid, or any other health care related programs, services, or activities administered by the covered entity and includes:

(a) Conducting quality assessment and improvement activities, including income evaluation and development of clinical guidelines;

(b) Population-based activities related to improving health or reducing health care costs, protocol development, case management and care coordination, contacting health care providers and patients with information about treatment alternatives; and related functions that do not include treatment;

(c) Reviewing the competence of qualifications of health care professionals, evaluating practitioner, provider, and health plan performance; and conducting training programs in which students and trainees in areas of health care learn under supervision to practice or improve their skills, accreditation, certification, licensing, or credentialing activities;

(d) Underwriting, premium rating, and other activities relating to the creation, renewal, or replacement of a contract for Medicaid or health care related services;

(e) Conducting or arranging for medical review, legal services, and auditing functions, including fraud and abuse detection and compliance programs, and disclosure to the Medicaid Fraud Unit pursuant to 43 CFR part 455.21;

(f) Business planning and development, such as conducting cost-management and planning-related analyses related to managing and operating the covered entity, including administration, development, or improvement of methods of payments or health care coverage; and

(g) Business management and general administrative activities of the covered entity, including but not limited to:

(A) Management activities relating to implementation of and compliance with the requirements of HIPAA;

(B) Customer service, including providing data analysis;

(C) Resolution of internal grievances, including administrative hearings and the resolution of disputes from patients or enrollees regarding the quality of care and eligibility for services; and

(D) Creating de-identified data or a limited data set.

(18) “Health Oversight Agency” means an agency or authority of the federal government, a state, territory, political subdivision of a state or territory, Indian tribe, or a person or entity acting under a grant of authority from or by contract with the public agency, including employees or agents of the public agency or its contractors or grantees that is authorized by law to oversee the health care system or government programs in which health information is necessary to determine eligibility or compliance, or to enforce civil rights laws for which health information is relevant. When performing these functions, the Department acts as a health oversight agency for the purposes of these rules.

(19) “HIPAA” means the Title II, Subtitle F of the Health Insurance Portability and Accountability Act of 1996, 42 USC 1320d et seq, and the federal regulations adopted to implement the Act.

(20) “Individual” means the person who is the subject of information collected, used, or disclosed by the Department.

(21) “Individually Identifying Information” means any single item or compilation of information or data that indicates or reveals the identity of an individual, either specifically (such as the individual’s name or social security number), or from which the individual’s identity can be reasonably ascertained.

(22) “Information” means personal information relating to an individual, a participant, or a Department client.

(23) “Inmate” means a person incarcerated in or otherwise confined in a correctional institution. An individual is no longer an inmate when released on parole, probation, supervised release, or is otherwise no longer in custody.

(24) “Institutional Review Board (IRB)” means a specially constituted review body established or designated by an entity in accordance with 45 CFR part 46 to protect the welfare of human subjects recruited to participate in biomedical or behavioral research. The IRB must be registered with the Office for Human Research Protection.

(25) “Law Enforcement Official” means an officer or employee of any agency or authority of the federal government, a state, territory, political subdivision of a state or territory, or Indian tribe who is empowered by law to:

(a) Investigate and conduct an official inquiry into a potential violation of law; or

(b) Prosecute or otherwise conduct a criminal, civil, or administrative proceeding arising from an alleged violation of law.

(26) “Licensee” means a person or entity that applies for or receives a license, certificate, registration, or similar authority from the Department to perform or conduct a service, activity, or function.

(27) “Minimum Necessary” means the least amount of information, when using or disclosing confidential client information that is needed to accomplish the intended purpose of the use, disclosure, or request.

(28) “Participant” means individual’s participating in Department population-based services, programs, and activities that serve the general population, but who do not receive program benefits or direct services received by a client. Examples of participants include individuals who contact Department hotlines or the ombudsman for general public information services.

(29) “Payment” means any activities undertaken by a covered entity related to a client to whom health care is provided in order to:

(a) Obtain premiums or to determine or fulfill its responsibility for coverage and provision of benefits under the Medicaid program or other publicly funded health care services; and

(b) Obtain or provide reimbursement for the provision of health care.

(30) “Payment activities” means:

(a) Determinations of eligibility or coverage, including coordination of benefits or the determination of cost sharing amounts, and adjudication of health benefit or health care claims;

(b) Risk adjusting amounts due which are based on enrollee health status and demographic characteristics;

(c) Billing, claims management, collection activities, obtaining payment under a contract for reinsurance, and related health care data processing;

(d) Review of health care services with respect to medical necessity, coverage under a health plan, appropriateness of care, or justification of charges;

(e) Utilization review activities, including pre-certification and pre-authorization of services, concurrent and retrospective review of services; and

(f) Disclosure to consumer reporting agencies relating to collection of premiums or reimbursement including name and address, date of birth, payment history, account number, and name and address of the health care provider or health plan.

(31) “Personal Representative” means a person who has authority to act on behalf of an individual in making decisions related to health care.

(32) “Protected Health Information (PHI)” means any individually identifiable health information, whether oral or recorded in any form or medium, that is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse and relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual. Any data transmitted or maintained in any other form or medium by covered entities, including paper records, fax documents, all oral communications, or any other form, such as screen prints of eligibility information, printed e-mails containing identified individual’s health information, claim or billing information, or hard copy birth or death certificates. PHI does not include school records that are subject to the Family Educational Rights and Privacy Act and employment records held in the Department’s role as an employer.

(33) “Protected Information” means any participant or client information that the Department may have in its records or files that must be safeguarded pursuant to federal or state law. This includes but is not limited to individually identifying information.

(34) “Provider” means a person or entity that may seek reimbursement from the Department as a provider of services to Department clients pursuant to a contract. For purposes of these rules, reimbursement may be requested on the basis of claims or encounters or other means of requesting payment.

(35) “Psychotherapy Notes” mean notes recorded in any medium by a health care provider who is a mental health professional documenting or analyzing the contents of conversations during a private counseling session, or group, joint, or family counseling session, when the notes are separated from the rest of the individual’s record. Psychotherapy notes do not include medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of diagnosis, functional status, treatment plan, symptoms, prognosis, or progress to date.

(36) “Public Health Agency” means a public agency or a person or entity acting under a grant of authority from or by contract with the public agency that performs or conducts one or more of the following essential functions that characterize public health programs, services, or activities:

(a) Monitor health status to identify community health problems;

(b) Diagnose and investigate health problems and health hazards in the community;

(A) Inform, educate, and empower people about health issues;

(B) Mobilize community partnerships to identify and solve health problems;

(C) Develop policies and plans that support individual and community health efforts;

(D) Enforce laws and regulations that protect health and ensure safety;

(E) Direct individuals to needed personal health services and assure the provision of health care when otherwise unavailable;

(F) Ensure a competent public health and personal health care workforce;

(G) Evaluate the effectiveness, accessibility, and quality of personal and population-based health services; and

(H) Perform research for new insights and innovative solutions to health problems.

(37) “Public Health Authority” means an agency or authority of the federal government, a state, territory, political subdivision of a state or territory, Indian tribe, or a person or entity acting under a grant of authority from or by contract with the public agency, including the employees or agents of the public agency, or its contractors or persons or entities to whom it has granted authority, that is responsible for public health matters as part of its official mandate.

(38) “Re-disclosure” means the disclosure of information to a person, a Department program, a Department subcontracted entity, or other entity or person other than what was originally authorized.

(39) “Research” means systematic investigation, including research development, testing, and evaluation, designed to develop or contribute to generalized knowledge.

(40) “Required by Law” means a duty or responsibility that federal or state law specifies that a person or entity must perform or exercise. Required by law includes but is not limited to court orders and court-ordered warrants; subpoenas or summons issued by a court, grand jury, a governmental or tribal inspector general, or an administrative body authorized to require the production of information; a civil or an authorized investigative demand; Medicare conditions of participation with respect to health care providers participating in the program; and statutes or rules that require the production of information, including statutes or rules that require such information if payment is sought under a government program providing public benefits.

(41) “Treatment” means the provision, coordination, or management of heath care and related services by one or more health care providers, including the coordination or management of health care by a health care provider with a third party, consultation between health care providers relating to a patient, or the referral of a patient for health care from one health care provider to another.

(42) “Use” means the sharing of individual information within a Department program or the sharing of individual information between program staff and administrative staff that support or oversee the program.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 409.010

Hist.: OMAP 26-2003, f. 3-31-03 cert. ef. 4-1-03; Renumbered from 410-014-0000 by DHSD 5-2009, f. & cert. ef. 7-1-09; DHSD 2-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-014-0015

Information Governed by the HIPAA Privacy Rules

(1) These rules address information that, among other things, may be PHI that is protected by the HIPAA Privacy Rules. For purposes of HIPAA Privacy Rules, the Authority is a covered entity, primarily because of its role as the state Medicaid and Children’s Health Insurance Program.

(2) The Authority administers many aspects of the medical assistance program with the assistance of the Department, including but not limited to eligibility determinations for the medical assistance program and supervising the long-term and community-based services for seniors and people with disabilities. The Department also provides certain health care operations services for the Authority. In doing so, the Department is a business associate of the Authority. As a business associate of the Authority, the Department is authorized to use and disclose protected health information to perform or assist the Authority in the performance of its covered functions, in a manner consistent with these rules.

(3) These rules only apply to information maintained by the Department as a business associate of the Authority.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 409.010

Hist.: ; DHSD 2-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-014-0020

Uses and Disclosures of Client or Participant Protected Information

(1) Uses and disclosures with individual authorization. The Department must obtain a completed and signed authorization for release of information from the individual, or the individual’s personal representative, before obtaining or using protected information about an individual from a third party or disclosing protected information about the individual to a third party.

(a) Uses and disclosures must be consistent with what the individual has approved on the signed authorization form approved by the Department.

(b) An individual may revoke an authorization at any time. The revocation must be in writing and signed by the individual, except that substance abuse treatment patients may orally revoke an authorization to disclose information obtained from substance abuse treatment programs. No revocation shall apply to information already released while the authorization was valid and in effect.

(2) Uses and disclosures without authorization. The Department may use and disclose information without written authorization in the following circumstances:

(a) The Department may disclose information to individuals who have requested disclosure to themselves of their information, if the individual has the right to access the information under OAR 407-014-0030(6).

(b) If the law requires or permits the disclosure, and the use and disclosure complies with, and is limited to, the relevant requirements of the relevant law.

(c) For treatment, payment, and health care operations the Department may disclose the following information:

(A) Activities involving the current treatment of an individual, for the Department or health care provider;

(B) Payment activities, for the Department, covered entity, or health care provider;

(C) Protected health information for the purpose of health care operations; and

(D) Substance abuse treatment information, if the recipient has a Qualified Service Organization Agreement with the Department.

(d) Psychotherapy notes. The Department may only use and disclose psychotherapy notes in the following circumstances:

(A) In the Department’s supervised counseling training programs;

(B) In connection with oversight of the originator of the psychotherapy notes; or

(C) To defend the Department in a legal action or other proceeding brought by the individual.

(e) Public health activities.

(A) The Department may disclose an individual’s protected information to appropriate entities or persons for governmental public health activities and for other purposes including but not limited to:

(i) A governmental public health authority that is authorized by law to collect or receive protected information for the purpose of preventing or controlling disease, injury, or disability. This includes but is not limited to reporting disease, injury, and vital events such as birth or death; and the conducting of public health surveillance, investigations, and interventions;

(ii) An official of a foreign government agency that is acting in collaboration with a governmental public health authority;

(iii) A governmental public health authority, or other government authority that is authorized by law to receive reports of child abuse or neglect;

(iv) A person subject to the jurisdiction of the federal Food and Drug Administration (FDA), regarding an FDA-regulated product or activity for which that person is responsible for activities related to the quality, safety, or effectiveness of an FDA-regulated product or activity; or

(v) A person who may have been exposed to a communicable disease, or may be at risk of contracting or spreading a disease or condition.

(B) Where state or federal law prohibits or restricts use and disclosure of information obtained or maintained for public health purposes, the Department shall deny the use and disclosure.

(f) Child abuse reporting and investigation. If the Department has reasonable cause to believe that a child is a victim of abuse or neglect, the Department may disclose protected information to appropriate governmental authorities authorized by law to receive reports of child abuse or neglect (including reporting to the Department protective services staff if appropriate). If the Department receives information as the child protective services agency, the Department may use and disclose the information consistent with its legal authority and in compliance with any applicable state and federal regulations.

(g) Adult abuse reporting and investigation. If the Department has reasonable cause to believe that a vulnerable adult is a victim of abuse or neglect, the Department may disclose information, as required by law, to a government authority or regulatory agency authorized by law to receive reports of abuse or neglect including but not limited to a social service or protective services agency (which may include the Department) authorized by law to receive such reports. Vulnerable adults are adults age 65 or older and persons with disabilities. If the Department receives information as the social services or protective services agency, the Department may use and disclose the information.

(h) Health oversight activities. The Department may disclose information without authorization for health oversight activities, including audits; civil, criminal, or administrative investigations, prosecutions, licensing or disciplinary actions; Medicaid fraud; or other necessary oversight activities.

(i) Administrative and court hearings, grievances, investigations, and appeals.

(A) The Department may use or disclose information for an investigation, administrative or court hearing, grievance, or appeal about an individual’s eligibility or right to receive Department benefits or services.

(B) If the Department has obtained information in performing its duties as a health oversight agency, protective service entity, or public benefit program, the Department may use or disclose that information in an administrative or court hearing consistent with the other privacy requirements applicable to that program, service, or activity.

(j) Court orders. The Department may disclose information for judicial or administrative proceedings in response to a court order, subpoena, discovery request, or other legal process. If a court orders the Department to conduct a mental examination pursuant to ORS 161.315, 161.365, 161.370, or 419B.352, or orders the Department to provide any other report or evaluation to the court, the examination, report, or evaluation shall be deemed to be required by law for purposes of HIPAA.

(k) Law enforcement purposes. For limited law enforcement purposes, the Department may report certain injuries or wounds; provide information to identify or locate a suspect, victim, or witness; alert law enforcement of a death as a result of criminal conduct; and provide information which constitutes evidence of criminal conduct on Department premises.

(A) The Department may provide client information to a law enforcement officer in any of the following situations:

(i) The law enforcement officer is involved in carrying out any investigation, criminal, or civil proceedings connected with administering the program from which the information is sought;

(ii) A Department employee may disclose information from personal knowledge that does not come from the client’s interaction with the Department;

(iii) The disclosure is authorized by statute or administrative rule;

(iv) The information informs law enforcement of a death as a result of criminal conduct;

(v) The information constitutes evidence of criminal conduct on Department premises; or

(vi) The disclosure is necessary to protect the client or others, and the client poses a threat to his or her safety or to the safety of others.

(B) Except as provided in section (2)(k)(C) of this rule, the Department may give a client’s current address, Social Security number, and photo to a law enforcement officer if the law enforcement officer makes the request in the course of official duty, supplies the client’s name, and states that the client:

(i) Is a fugitive felon or is violating parole, probation, or post-prison supervision;

(ii) For all public assistance programs, has information that is necessary for the officer to conduct official duties, and the location or apprehension of the client is within the officer’s official duties; or

(iii) For clients only in the SNAP program, has information that is necessary to conduct an official investigation of a fugitive felon or person violating parole, probation, or post-prison supervision.

(C) If domestic violence has been identified in the household, the Department may not release information about a victim of domestic violence unless a member of the household is either wanted as a fugitive felon or is violating parole, probation, or post-prison supervision.

(D) For purposes of this subsection, a fugitive felon is a person fleeing to avoid prosecution or custody for a crime, or an attempt to commit a crime, that would be classified as a felony.

(E) For purposes of this section, a law enforcement officer is an employee of the Oregon State Police, a county sheriff’s department, or a municipal police department, whose official duties include arrest authority.

(l) Use and disclosure of information about deceased individuals.

(A) The Department may disclose individual information to a coroner or medical examiner for the purpose of identifying a deceased individual, determining cause of death, or other duties authorized by law.

(B) The Department may disclose individual information to funeral directors as needed to carry out their duties regarding the decedent. The Department may also disclose individual information prior to, and in anticipation of, the death.

(m) Organ or tissue donation. The Department may disclose individual information to organ procurement organizations or other entities engaged in procuring, banking, or transplanting cadaver organs, eyes, or tissue for the purpose of facilitating transplantation.

(n) Research. The Department may disclose individual information without authorization for research purposes, as specified in OAR 407-014-0060.

(o) Threat to health or safety. To avert a serious threat to health or safety the Department may disclose individual information if:

(A) The Department believes in good faith that the information is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and

(B) The report is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.

(p) National security and intelligence. The Department may disclose information to authorized federal officials for lawful intelligence, counterintelligence, and other national security activities.

(q) Correctional institutions and law enforcement custody situations. The Department may disclose information to a correctional institution or a law enforcement official having lawful custody of an inmate or other person, for the limited purpose of providing health care or ensuring the health or safety of the person or other inmates.

(r) Emergency treatment. In case of an emergency, the Department may disclose individual information to the extent needed to provide emergency treatment.

(s) Government entities providing public benefits. The Department may disclose eligibility and other information to governmental entities administering a government program providing public benefits.

(3) Authorization not required if opportunity to object given. The Department may use and disclose an individual’s information without authorization if the Department informs the individual in advance and gives the individual an opportunity to either agree or refuse or restrict the use and disclosure.

(a) These disclosures are limited to disclosure of information to a family member, other relative, close personal friend of the individual, or any other person named by the individual, subject to the following limitations:

(A) The Department may disclose only the protected information that directly relates to the person’s involvement with the individual’s care or payment for care.

(B) The Department may use and disclose protected information for notifying, identifying, or locating a family member, personal representative, or other person responsible for care of the individual, regarding the individual’s location, general condition, or death. For individuals who had resided at one time at the state training center, OAR 411-320-0090(6) addresses family reconnection.

(C) If the individual is present for, or available prior to, a use and disclosure, the Department may disclose the protected information if the Department:

(i) Obtains the individual’s agreement;

(ii) Provides the individual an opportunity to object to the disclosure, and the individual does not object; or

(iii) Reasonably infers from the circumstances that the individual does not object to the disclosure.

(D) If the individual is not present, or the opportunity to object to the use and disclosure cannot practicably be provided due to the individual’s incapacity or an emergency situation, the Department may disclose the information if, using professional judgment, the Department determines that the use and disclosure is in the individual’s best interests.

(b) Exception. For individuals referred to or receiving substance abuse treatment, mental health, or vocational rehabilitation services, the Department shall not use or disclose information without written authorization, unless disclosure is otherwise permitted under 42 CFR part 2, 38 CFR 361.38, or ORS 179.505.

(c) Personal representative. The Department must treat a personal representative as the individual for purposes of these rules, except that:

(A) A personal representative must be authorized under state law to act on behalf of the individual with respect to use and disclosure of information. The Department may require a personal representative to provide a copy of the documentation authorizing the person to act on behalf of the individual.

(B) The Department may elect not to treat a person as a personal representative of an individual if:

(i) The Department has a reasonable belief that the individual has been or may be subjected to domestic violence, abuse, or neglect by the person;

(ii) The Department, in the exercise of professional judgment, decides that it is not in the best interest of the individual to treat the person as the individual’s personal representative.

(4) Redisclosure. The Department must inform the individual that information held by the Department and authorized by the individual for disclosure may be subject to redisclosure and no longer protected by these rules.

(5) Specific written authorization. If the use or disclosure of information requires an authorization, the authorization must specify that the Department may use or disclose vocational rehabilitation records, alcohol and drug records, HIV/AIDS records, genetics information, and mental health or developmental disability records held by publicly funded providers.

(a) Pursuant to federal regulations at 42 CFR part 2 and 34 CFR 361.38, the Department may not make further disclosure of vocational rehabilitation and alcohol and drug rehabilitation information without the specific written authorization of the individual to whom it pertains.

(b) Pursuant to ORS 433.045 and OAR 333-012-0270, the Department may not make further disclosure of individual information pertaining to HIV/AIDS.

(c) Pursuant to ORS 192.531 to 192.549, the Department may not make further disclosure pertaining to genetic information.

(6) Verification of person or entity requesting information. The Department may not disclose information about an individual without first verifying the identity of the person or entity requesting the information, unless the Department workforce member fulfilling the request already knows the person or has already verified identity.

(7) Whistleblowers. The Department may disclose an individual’s protected health information under the HIPAA privacy rules under the following circumstances:

(a) The Department workforce member believes in good faith that the Department has engaged in conduct that is unlawful or that otherwise violates professional standards or Department policy, or that the care, services, or conditions provided by the Department could endanger Department staff, individuals in Department care, or the public; and

(b) The disclosure is to a government oversight agency or public health authority, or an attorney of a Department workforce member retained for the purpose of determining the legal options of the workforce member with regard to the conduct alleged under section (7)(a) above; and

(c) Nothing in this rule is intended to interfere with ORS 659A.200 to 659A.224 describing the circumstances applicable to disclosures by the Department’s workforce.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 409.010, 433.045

Hist.: OMAP 26-2003, f. 3-31-03 cert. ef. 4-1-03; Renumbered from 410-014-0020 by DHSD 5-2009, f. & cert. ef. 7-1-09; DHSD 2-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-014-0030

Client Privacy Rights

(1) Rights of clients to access their information. Clients may access, inspect, and obtain a copy of information on their own cases in Department files or records, consistent with federal and state law.

(a) A client may request access by completing the Access to Records Request form, or by providing sufficient information to accomplish this request.

(b) Clients may request access to their own information that is kept by the Department by using a personal identifier such as the client’s name or Department case number.

(c) If the Department maintains information in a record that includes information about other people, the client may see information only about himself or herself.

(d) If a person identified in the file is a minor child of the client, and the client is authorized under Oregon law to have access to the minor’s information or to act on behalf of the minor for making decisions about the minor’s care, the client may obtain information about the minor.

(e) If the requestor of information is recognized under Oregon law as a the client’s guardian or custodian and is authorized under Oregon law to have access to the client’s information or to act on behalf of the client for making decisions about the client’s services or care, the Department shall release information to the requestor.

(f) For individuals with disabilities or mental illnesses, the named system in ORS 192.517, to protect and advocate the rights of individuals with developmental disabilities under Part C of the Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. 6041 et seq.) and the rights of individuals with mental illness under the Protection and Advocacy for Individuals with Mental Illness Act (42 U.S.C. 10801 et seq.), shall have access to all records defined in ORS 192.515.

(g) The Department may deny a client’s access to their own PHI if federal law prohibits the disclosure. Clients may access, inspect, and obtain a copy of health information on their own case in Department files or records except for the following:

(A) Psychotherapy notes;

(B) Information compiled in reasonable anticipation of, or for use in civil, criminal, or administrative proceedings;

(C) Information that is subject to the federal Clinical Labs Improvement Amendments of 1988, or exempt pursuant to 42 CFR 493.3(a)(2);

(D) Information that the Department believes, in good faith, can cause harm to the client, participant, or to any other person; and

(E) Documents protected by attorney work-product privilege.

(h) The Department may deny a client access to information that was obtained under a promise of confidentiality from a person other than a health care provider to the extent that access would reveal the source of the information.

(i) The Department may deny a client access to information, if the Department gives the client a right to have the denial reviewed when:

(A) A licensed health care professional (for health information) or other designated staff (for other information) has determined, in the exercise of professional judgment, that the information requested may endanger the life or physical safety of the client or another person;

(B) The information makes reference to another person, and a licensed health care professional (for health information) or other designated staff (for other information) has determined, in the exercise of professional judgment, that the information requested may cause substantial harm to the client or to another person; or

(C) The request for access is made by the client’s personal representative, and a licensed health care professional (for health information) or other designated staff (for other information) has determined, in the exercise of professional judgment, that allowing the personal representative access to the information may cause substantial harm to the client or to another person.

(j) If the Department denies access under section (1)(i) of this rule, the client may have the decision reviewed by a licensed health care professional (for health information) or other designated staff (for other information) not directly involved in making the original denial decision.

(A) The Department must promptly refer a client’s request for review to the designated reviewer.

(B) The reviewer must determine, within the 30 or 60-day time limits stated in section (1)(k)(A) and (B) of this rule, whether to approve or deny the client’s request for access.

(C) Based on the reviewer’s decision, the Department shall:

(i) Promptly notify the client in writing of the reviewer’s determination; and

(ii) If approved, take action to carry out the reviewer’s determination.

(k) The Department must act on a client’s request for access no later than 30 days after receiving the request, except as provided in this section and in the case of written accounts under ORS 179.505, which must be disclosed within five days.

(A) In cases where the information is not maintained or accessible to the Department on-site, and does not fall under ORS 179.505, the Department must act on the client’s request no later than 60 days after receiving the request.

(B) If the Department is unable to act within the 30 or 60-day limits, the Department may extend this time period a maximum of 30 additional days, subject to the following:

(i) The Department must notify the client in writing of the reasons for the delay and the date by which the Department shall act on the request.

(ii) The Department shall use only one 30-day extension.

(l) If the Department grants the client’s request, in whole or in part, the Department must inform the client of the access decision and provide the requested access.

(A) If the Department maintains the same information in more than one format or at more than one location, the Department may provide the requested information once.

(B) The Department must provide the requested information in a form or format requested by the client, if readily producible in that form or format. If not readily producible, the Department shall provide the information in a readable hard-copy format or other format as agreed to by the Department and the client.

(C) The Department may provide the client with a summary of the requested information, in lieu of providing access, or may provide an explanation of the information if access has been provided, if:

(i) The client agrees in advance; and

(ii) The client agrees in advance to pay any fees the Department may impose, under section (1)(L)(E) of this rule.

(D) The Department shall arrange with the client for providing the requested access in a time, place, and manner convenient for the client and the Department.

(E) If a client, or legal guardian or custodian, requests a copy, written summary, or explanation of the requested information, the Department may impose a reasonable cost-based fee, limited to the following:

(i) Copying the requested information, including the costs of supplies and the labor of copying;

(ii) Postage; and

(iii) Staff time for preparing an explanation or summary of the requested information.

(m) If the Department denies access, in whole or in part, to the requested information, the Department must:

(A) Give the client access to any other requested client information, after excluding the information to which access is denied; and

(B) Provide the client with a timely written denial. The denial must:

(i) Be provided within the time limits specified in section (1)(k)(A) and (B) of this rule;

(ii) State the basis of the denial in plain language;

(iii) If the Department denies access under section (1)(i) of this rule, explain the client’s review rights as specified in section (1)(j) of this rule, including an explanation of how the client may exercise these rights; and

(iv) Provide a description of how the client may file a complaint with the Department, and if the information is PHI, with the United States Department of Health and Human Services (DHHS), Office for Civil Rights, pursuant to section (7) of this rule.

(n) If the Department does not maintain the requested information, in whole or in part, and knows where the information is maintained (such as by a medical provider, insurer, other public agency, private business, or other non-Department entity), the Department must inform the client where to direct the request for access.

(2) Department Notice of Privacy Practices. The Department shall send clients notice about the Department’s privacy practices as follows:

(a) The Department shall make available to each client a notice of Department privacy practices that describes the duty of the Department to maintain the privacy of PHI and include a description that clearly informs the client of the types of uses and disclosures the Department is permitted or required to make;

(b) The Department shall provide all clients in direct care settings a notice of Department privacy practices and shall request the client’s signature on an acknowledgement of receipt form;

(c) If the Department revises its privacy practices, the Department shall make the revised notice available to all clients;

(d) The Department shall post a copy of the Department’s Notice of Privacy Practices for public viewing at each Department worksite and on the Department website; and

(e) The Department shall give a paper copy of the Department’s Notice of Privacy Practices to any individual upon request.

(3) Right to request restrictions on uses or disclosures. Clients may request restrictions on the use or disclosure of their information.

(a) The Department may deny the client’s request or limit its agreement to a request.

(A) The Department may not agree to restrict uses or disclosures of information if the restriction would adversely affect the quality of the client’s care or services.

(B) The Department shall not agree to restrict uses or disclosures of information that would limit or prevent the Department from making or obtaining payment for services.

(b) The Department may not deny a client’s request to restrict the sharing of records of alcohol and drug treatment or records relating to vocational rehabilitation services with another Department program.

(c) The Department shall document the client’s request, and the reasons for granting or denying the request, in the client’s Department case file.

(d) If the client needs emergency treatment and the restricted protected information is needed to provide the treatment, the Department may use or disclose the restricted protected information to a provider, for the limited purpose of providing treatment. However, once the emergency situation subsides the Department shall ask the provider not to redisclose the information.

(e) The Department may terminate its agreement to a restriction if:

(A) The client agrees to or requests the termination in writing;

(B) The client orally requests or agrees to the termination, and the Department documents the oral request or agreement in the client’s Department case file; or

(C) With or without the client’s agreement, the Department informs the client that the Department is terminating its agreement to the restriction. Information created or received while the restriction was in place shall remain subject to the restriction.

(4) Rights of clients to request to receive information from the Department by alternative means or at alternative locations. The Department must accommodate reasonable requests by clients to receive communications from the Department by alternative means, such as by mail, e-mail, fax, or telephone, and at an alternative location.

(a) The client must specify the preferred alternative means or location.

(b) The client may submit the request for alternative means or locations either orally or in writing.

(A) If the client makes a request in-person, the Department shall document the request and ask for the client’s signature.

(B) If the client makes a request by telephone or electronically, the Department shall document the request and verify the identity of the client.

(c) The Department may terminate its agreement to an alternative location or method of communication if:

(A) The client agrees to or requests termination of the alternative location or method of communication in writing or orally. The Department shall document the oral agreement or request in the client’s Department case file; or

(B) The Department informs the client that the Department is terminating its agreement to the alternative location or method of communication because the alternative location or method of communication is not effective. The Department may terminate its agreement to communicate at the alternative location or by the alternate method if:

(i) The Department is unable to contact the client at the location or by the method requested; or

(ii) The client fails to respond to payment requests, if applicable.

(5) Right of clients to request amendment of their information. Clients may request that the Department amend information about themselves in Department files.

(a) For all amendment requests, the Department shall have the client complete the approved Department form.

(b) The Department may deny the request or limit its agreement to amend.

(c) The Department must act on the client’s request no later than 60 days after receiving the request. If the Department is unable to act within 60 days, the Department may extend this time limit by a maximum of 30 additional days, subject to the following:

(A) The Department must notify the client in writing, within 60 days of receiving the request, of the reasons for the delay and the date by which the Department shall act on the request; and

(B) The Department shall use only one 30-day extension.

(d) The program’s medical director, a licensed health care professional designated by the program administrator, or a Department staff person involved in the client’s case must review the request and any related documentation prior to making a decision to amend a health or medical record.

(e) A staff person designated by the Department shall review the request and any related documentation prior to making a decision to amend any information that is not a health or medical record.

(f) If the Department grants the request, in whole or in part, the Department shall:

(A) Make the appropriate amendment to the information or records, and document the amendment in the client’s Department file or record;

(B) Provide notice to the client that the amendment has been granted, pursuant to the time limits under section (5)(c) of this rule;

(C) Obtain the client’s agreement to notify other relevant persons or entities with whom the Department has shared or needs to share the amended information; and

(D) Inform and provide the amendment within a reasonable time to:

(i) Persons named by the client who have received the information and who need the amendment; and

(ii) Persons, that the Department knows have the information that is the subject of the amendment and who may have relied, or could foreseeably rely, on the information to the client’s detriment.

(g) The Department may deny the client’s request for amendment if:

(A) The Department finds the information to be accurate and complete;

(B) The information was not created by the Department;

(C) The information is not part of Department records; or

(D) The information would not be available for inspection or access by the client, pursuant to section (1)(g) and (h) of this rule.

(h) If the Department denies the amendment request, in whole or in part, the Department must provide the client with a written denial. The denial must:

(A) Be sent within the time limits specified in section (5)(c) of this rule;

(B) State the basis for the denial, in plain language; and

(C) Explain the client’s right to submit a written statement disagreeing with the denial and how to file the statement. If the client files a statement:

(i) The Department shall enter the written statement into the client’s Department case file;

(ii) The Department may also enter a Department written rebuttal of the client’s written statement into the client’s Department case file. The Department shall send a copy of any written rebuttal to the client;

(iii) The Department shall include a copy of the statement and any Department written rebuttal with any future disclosures of the relevant information;

(iv) If a client does not submit a written statement of disagreement, the client may ask that if the Department makes any further disclosures of the relevant information that the Department shall also include a copy of the client’s original request for amendment and a copy of the Department written denial; and

(v) The Department shall provide information on how the client may file a complaint with the Department and, if the information is PHI, with DHHS, Office for Civil Rights.

(6) Rights of clients to request an accounting of disclosures of PHI. Clients may receive an accounting of disclosures of PHI that the Department has made for any period of time, not to exceed six years, preceding the request date for the accounting.

(a) For all requests for an accounting of disclosures, the client may complete the authorized Department form “Request for Accounting of Disclosures of Health Records”, or provide sufficient information to accomplish this request.

(b) The right to an accounting of disclosures does not apply when the request is:

(A) Authorized by the client;

(B) Made prior to April 14, 2003;

(C) Made to carry out treatment, payment, or health care operations, unless these disclosures are made from an electronic health record;

(D) Made to the client;

(E) Made to persons involved in the client’s care;

(F) Made as part of a limited data set in accordance with OAR 407-014-0070;

(G) Made for national security or intelligence purposes; or

(H) Made to correctional institutions or law enforcement officials having lawful custody of an inmate.

(c) For each disclosure, the accounting must include:

(A) The date of the disclosure;

(B) The name and address, if known, of the person or entity who received the disclosed information;

(C) A brief description of the information disclosed; and

(D) A brief statement of the purpose of the disclosure that reasonably informs the client of the basis for the disclosure, or, in lieu of a statement, a copy of the client’s written request for a disclosure, if any.

(d) If, during the time period covered by the accounting, the Department has made multiple disclosures to the same person or entity for the same purpose, the Department may provide the required information for only the first disclosure. The Department need not list the same identical information for each subsequent disclosure to the same person or entity if the Department adds the following information:

(A) The frequency or number of disclosures made to the same person or entity; and

(B) The date of the most recent disclosure during the time period for which the accounting is requested.

(e) The Department must act on the client’s request for an accounting no later than 60 days after receiving the request. If the Department is unable to act within 60 days, the Department may extend this time limit by a maximum of 30 additional days, subject to the following:

(A) The Department must notify the client in writing, within 60 days of receiving the request, of the reasons for the delay and the date by which the Department shall act on the request; and

(B) The Department shall use only one 30-day extension.

(f) The Department shall provide the first requested accounting in any 12-month period without charge. The Department may charge the client a reasonable cost-based fee for each additional accounting requested by the client within the 12-month period following the first request, if the Department:

(A) Informs the client of the fee before proceeding with any additional request; and

(B) Allows the client an opportunity to withdraw or modify the request in order to avoid or reduce the fee.

(g) The Department shall document the information required to be included in an accounting of disclosures, as specified in section (6)(c) of this rule, and retain a copy of the written accounting provided to the client.

(h) The Department shall temporarily suspend a client’s right to receive an accounting of disclosures that the Department has made to a health oversight agency or to a law enforcement official, for a length of time specified by the agency or official, if the agency or official provides a written or oral statement to the Department that the accounting would be reasonably likely to impede their activities. If the agency or official makes an oral request, the Department shall:

(A) Document the oral request, including the identity of the agency or official making the request.

(B) Temporarily suspend the client’s request to an accounting of disclosures; and

(C) Limit the temporary suspension to no longer than 30 days from the date of the oral request, unless the agency or official submits a written request specifying a longer time period.

(7) Filing a complaint. Clients may file a complaint with the Department or, if the information is PHI, with DHHS, Office for Civil Rights.

(a) Upon request, the Department shall give clients the name and address of the specific person or office of where to submit complaints to DHHS.

(b) The Department may not intimidate, threaten, coerce, discriminate against, or take any other form of retaliatory action against any individual filing a complaint or inquiring about how to file a complaint.

(c) The Department may not require clients to waive their rights to file a complaint as a condition of providing treatment, payment, enrollment in a health plan, or eligibility for benefits.

(d) The Department shall designate staff to review and determine action on complaints filed with the Department.

(e) The Department shall document, in the client’s Department case file all complaints, the findings from reviewing each complaint, and the Department’s actions resulting from the complaint. For each complaint the documentation shall include a description of corrective action that the Department has taken, if any are necessary, or why corrective action is not needed.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 409.010

Hist.: OMAP 26-2003, f. 3-31-03 cert. ef. 4-1-03; Renumbered from 410-014-0030 by DHSD 5-2009, f. & cert. ef. 7-1-09; DHSD 2-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-014-0040

Minimum Necessary Standards

(1) The Department shall limit the use and disclosure of protected information to that which is reasonably necessary to accomplish the intended purpose of the use or disclosure which is referred to in these rules as the minimum necessary standard.

(2) This minimum necessary standard is not intended to impede essential Department activities.

(3) The minimum necessary standard applies:

(a) When using protected information within the Department;

(b) When disclosing protected information to a third party in response to a request; or

(c) When requesting protected information from another covered entity.

(4) The minimum necessary standard does not apply to:

(a) Disclosures to or requests by a health care provider for treatment;

(b) Disclosures made to the individual, including disclosures made in response to a request for access or an accounting;

(c) Disclosures made with a valid authorization;

(d) Disclosures made to DHHS for the purposes of compliance and enforcement of federal regulations under 45 CFR part 160 and required for compliance with 45 CFR part 164.; or

(e) Uses and disclosures required by law;

(5) When requesting protected information about an individual from another entity, the Department shall limit requests to those that are reasonably necessary to accomplish the purposes for which the request is made. The Department shall not request a person’s entire medical record unless the Department can specifically justify the need for the entire medical record.

Stat. Auth.: ORS 409.050

Stats. Implemented: 409.010

Hist.: OMAP 26-2003, f. 3-31-03 cert. ef. 4-1-03; Renumbered from 410-014-0040 by DHSD 5-2009, f. & cert. ef. 7-1-09; DHSD 2-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-014-0050

Business Associate

(1) The Department is a business associate of the Authority. The Authority is the single State Medicaid agency but the Department performs or assists in the performance of key components of the medical assistance program under the supervision of the Authority including but not limited to eligibility determinations for the medical assistance program and supervising the long-term and community-based services for seniors and people with disabilities. The Department also provides certain health care operations services for the Authority. In doing so, the Department is a business associate of the Authority. As a business associate of the Authority, the Department is authorized to use and disclose protected health information to perform or assist the Authority in the performance of its covered functions. However, as a business associate, the Department is subject to the privacy requirements described in these rules.

(2) As a business associate of the Authority implementing the requirements of the medical assistance program, the Department may disclose an individual’s PHI to its contractors or providers, and may allow its contractors or providers to create or receive an individual’s PHI on behalf of the Department if the contract or agreement that complies with applicable federal and state law. In some limited circumstances, the Department may determine that the Department is a business associate of a covered entity. A business associate relationship with the Department requires additional contractual disclosure and privacy provisions that must be incorporated into the contract pursuant to 45 CFR part 164-504 (e)(1)

(3) A contract with a business associate must comply with OAR 125-055-0100 to 125-055-0130 and the qualified service organization requirements in 42 CFR part 2.11.

Stat. Auth.: ORS 409.050

Stats. Implemented: 409.010

Hist.: OMAP 26-2003, f. 3-31-03 cert. ef. 4-1-03; Renumbered from 410-014-0050 by DHSD 5-2009, f. & cert. ef. 7-1-09; DHSD 2-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-014-0060

Uses and Disclosures of Protected Information for Research Purposes

The Department may use and disclose an individual’s information for research purposes as specified in this rule.

(1) All research disclosures are subject to applicable requirements of federal and state laws and rules including but not limited to 45 CFR part 46 and 21 CFR part 50.0 to 50.56, relating to the protection of human research subjects.

(2) The Department may use and disclose de-identified information or a limited data set for research purposes, pursuant to OAR 407-014-0070.

(3) The Department may use and disclose information regarding an individual for research purposes with the specific written authorization of the individual. The authorization must meet all requirements in OAR 407-014-0030, and may indicate an expiration date with terms such as “end of research study” or similar language. An authorization for use and disclosure for a research study may be combined with other types of written authorization for the same research study. If research includes treatment, the researcher may require an authorization for use and disclosure for the research as a provision of providing research related treatment.

(4) Notwithstanding section (3) of this rule, the Department may use and disclose an individual’s information for research purposes without the individual’s written authorization, regardless of the source of funding for the research, provided that:

(a) The Department obtains documentation that a waiver of an individual’s authorization for release of information requirements has been approved by an IRB registered with the Office for Human Research Protection. Documentation required of an IRB when granting approval of a waiver of an individual’s authorization for release of information must include all criteria specified in 45 CFR part 164.512(i)(2).

(b) A researcher may request access to individual information maintained by the Department in preparation for research or to facilitate the development of a research protocol in anticipation of research. The Department may determine whether to permit such use or disclosure, without individual authorization or use of an IRB, pursuant to 45 CFR part 164.512(i)(1)(ii).

(c) A researcher may request access to individual information maintained by the Department about deceased individuals. The Department may determine whether to permit such use or disclosure of information about decedents, without individual authorization or use of an IRB, pursuant to 45 CFR part 164.512(i)(1)(iii).

(5) The Department may collect, use, or disclose information, without individual authorization, to the extent that the collection, use, or disclosure is required by law. When the Department uses information to conduct studies as required by law, no additional individual authorization is required nor does this rule require an IRB or privacy board waiver of authorization based on the HIPAA privacy rules.

(6) The Department may use and disclose information without individual authorization for studies and data analysis conducted for the Department’s own quality assurance purposes or to comply with reporting requirements applicable to federal or state funding requirements in accordance with the definition of “Health Care Operations” in 45 CFR part 164.501.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 409.010

Hist.: OMAP 26-2003, f. 3-31-03 cert. ef. 4-1-03; Renumbered from 410-014-0060 by DHSD 5-2009, f. & cert. ef. 7-1-09; DHSD 2-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-014-0070

De-identification of Client Information and Use of Limited Data Sets under Data Use Agreements

(1) The Department may use and disclose information as appropriate for the work of the Department, without further restriction, if the Department or another entity has taken steps to de-identify the information pursuant to 45 CFR part 164.514(a) and (b).

(2) The Department may assign a code or other means of record identification to allow the Department to re-identify the de-identified information provided that:

(a) The code or other means of record identification is not derived from or related to information about the individual and cannot otherwise be translated to identify the individual; and,

(b) The Department does not use or disclose the code or other means of record identification for any other purpose, and does not disclose the mechanism for re-identification.

(3) The Department may use and disclose a limited data set if the Department enters into a data use agreement with an entity requesting or providing the Department with a limited data set subject to the requirements of 45 CFR part 164.514(e).

(a) The Department may use and disclose a limited data set for the purposes of research. The Department may use limited data set for its own activities or operations if the Department has obtained a limited data set that is subject to a data use agreement.

(b) If the Department knows of a pattern of activity or practice of a limited data set recipient that constitutes a material breach or violation of a data use agreement, the Department shall take reasonable steps to cure the breach or end the violation. If such steps are unsuccessful, the Department shall discontinue disclosure of information to the recipient and report the problem to the appropriate authority.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 409.010

Hist.: OMAP 26-2003, f. 3-31-03 cert. ef. 4-1-03; Renumbered from 410-014-0070 by DHSD 5-2009, f. & cert. ef. 7-1-09; DHSD 2-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

 

Rule Caption: Department of Human Services’ Cooperative Relationship with the Oregon Health Authority.

Adm. Order No.: DHSD 3-2011(Temp)

Filed with Sec. of State: 7-1-2011

Certified to be Effective: 7-1-11 thru 12-27-11

Notice Publication Date:

Rules Adopted: 407-043-0020

Subject: HB 2009 (2009) created the Oregon Health Authority and transferred to the Authority the Department of Human Services’ (Department) divisions with respect to health and health care. Effective July 1, 2011 the Department adopts these operational and programmatic rules to assure continuity as a part of the operational transfer from functions previously performed by the Department as a result of HB 2009 (2009).

      Among the functions transferred to the Authority is the medical assistance program. This rule provides for continuity in the relationship between the Department and the Authority when working together in the administration of the medical assistance program and that the Department and the Authority shall work cooperatively in the administration of the medical assistance program, including making determinations of eligibility and service need for medical assistance. This rule also explains that the Authority designated the Department as the operating agency for home and community-based waiver services and as an Organized Health Care Delivery System.

      This temporary rule is available on the DHS Website: http://www.oregon.gov/DHS/admin/dwssrules/index.shtml. For hardcopy requests, call: (503) 947-5250.

Rules Coordinator: Jennifer Bittel—(503) 947-5250

407-043-0020

Cooperative Relationship with Oregon Health Authority

(1) The Department of Human Services (Department) will cooperate and collaborate with Oregon Health Authority (Authority) in order to effectively coordinate services to individuals, families and communities and realize operational efficiencies in the administration of services that can be shared between them (“shared services”).

(2) In any Department rules, policies, or procedures that refer to the programs, functions, and duties that were formerly part of the Department that were transferred to the Authority, such reference shall be considered a reference to the Authority.

(3) The Department acknowledges that the Authority is the state Medicaid agency and the state Children’s Health Insurance Program agency, authorized by state statute to administer the medical assistance program. The Authority is also responsible for facilitating outreach and enrollment efforts to connect eligible individuals with all available publicly funded health programs.

(a) The Department and the Authority recognize that there are many points of interconnection between their programs and the individuals who receive services through these programs. In addition, there are areas of natural connection between the Department and the Authority based upon the former structure of the Department.

(b) The Department shall continue to work cooperatively with the Authority in the administration of the medical assistance program, including determinations of eligibility and service need for medical assistance. The Authority has designated the Department as the operating agency for the home and community-based waivers and as an Organized Health Care Delivery System.

(c) The Department and the Authority are authorized by state law to delegate to each other any duties, functions, and powers that they deem necessary for the efficient and effective operation of their respective functions. The Department and the Authority will work together to adopt rules to assure that medical assistance eligibility requirements, procedures, and determinations are consistent across both agencies. The Authority has authorized the Department to determine medical eligibility for medical assistance. program. Where that responsibility is given to the Department under ORS Chapter 411, the Department has delegated to the Authority the duties, functions and powers to make medical eligibility determinations in accordance with OAR 410-120-0006.

(d) Where statute establishes duties and functions of the Department or the Authority in relation to medical assistance as a public assistance program, the Department and the Authority will cooperate in the effective administration of the program.

Stat. Auth.: ORS 409.050 & 2009 OL Ch. 595 sec. 19-25 (HB 2009)

Stats. Implemented: ORS 413.032

Hist.: DHSD 3-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

 

Rule Caption: Amendment and Suspension of Abuse of Individuals in State Hospitals and Residential Training Centers Rules.

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

Filed with Sec. of State: 7-1-2011

Certified to be Effective: 7-1-11 thru 12-27-11

Notice Publication Date:

Rules Amended: 407-045-0400

Rules Suspended: 407-045-0410, 407-045-0420, 407-045-0430, 407-045-0440, 407-045-0450, 407-045-0460, 407-045-0470, 407-045-0480, 407-045-0490, 407-045-0500, 407-045-0510, 407-045-0520

Subject: HB 2009 (2009) created the Oregon Health Authority (Authority) and transferred to the Authority the Department of Human Services’ (Department) divisions with respect to health and health care. Effective July 1, 2011, these rules (OAR 407-045-0400 to 407-045-0520) are being moved to the Authority’s rule chapter, OAR 943-045-0400 to 943-0400, as part of the operational transfer from functions previously performed by the Department as a result of HB 2009 (2009). With the creation of this new agency, the administration of state hospitals has moved to the Authority. These rules are needed to reflect the separation of the Department and the Authority.

      These rules are available on the DHS Website: http://www.oregon.
gov/DHS/admin/dwssrules/index.shtml. For hardcopy requests, call: (503) 947-5250.

Rules Coordinator: Jennifer Bittel—(503) 947-5250

407-045-0400

Purpose

These rules (OAR 407-045-0400 to 407-045-0520), which establish a policy prohibiting abuse and define procedures for reporting, investigating, and resolving alleged incidents of abuse of individuals in state hospitals and residential training centers, have been moved to the Oregon Health Authority rule chapter (OAR 943-045-0400 to 943-0520).

Stat. Auth.: ORS 179.040 & 409.050

Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210, 430.735 - 430.765

Hist.: MHD 23, f. 8-5-74, ef. 8-25-74; MHD 19-1982(Temp), f. & ef. 9-10-82; MHD 4-1983, f. & ef. 3-4-83, Renumbered from 309-021-0010(1) and (2); MHD 3-1991, f. 6-21-91, cert. ef. 8-15-91; MHD 7-1995, f. 12-27-95, cert. ef. 1-1-96; Renumbered from 309-116-0000, OMAP 60-2005, f. 11-22-05, cert. ef. 1-1-06; Renumbered from 410-011-0000, DHSD 4-2007, f. 6-29-07, cert. ef. 7-1-07; DHSD 4-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-045-0410

Definitions

(1) “Abuse” means any act or absence of action by a staff or visitor inconsistent with prescribed treatment and care, that violates the well-being or dignity of the individual.

(2) “Administrator” means the Assistant Department of Human Services Director for Seniors and People with Disabilities and the Office of Mental Health and Addiction Services or their designee.

(3) “Department” means Seniors & People with Disabilities or Office of Mental Health & Addiction Services, organizational units within the Department of Human Services.

(4) “Derogatory” means an expression of a low opinion or a disparaging remark.

(5) “Disrespectful” means lacking regard or concern; or to treat as unworthy or lacking value as a human being.

(6) “Employee” means an individual employed by the state and subject to rules for employee conduct.

(7) “Inconclusive” means the available evidence does not support a final decision that there was reasonable cause to believe that abuse occurred or did not occur.

(8) “Individual” means a person who is receiving services in a residential training center for people with developmental disabilities or at a state hospital for people with mental illness.

(9) “Not Substantiated” means the evidence does not support a conclusion that there is reasonable cause to believe that abuse occurred.

(10) “Office of Investigations and Training (OIT)”means the Department of Human Services office responsible for the investigation of allegations of abuse made at state hospitals and residential training centers.

(11) “Staff” means employees, contractors and their employees, and volunteers.

(12) “Substantiated” means the evidence supports a conclusion that there is reasonable cause to believe that abuse occurred.

(13) “Superintendent” refers to the chief executive officer of a state hospital or residential training center who serves as the designee of the Administrator to receive allegations of abuse concerning individuals and his or her designee.

(14) “Visitor” means all others persons not included as staff who visit the facility for business purposes or to visit individuals or staff.

Stat. Authority: ORS 179.040, 409.010, 409.050

Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210, 430.735-430.765

MHD 4-1983, f. & ef. 3-4-83, Renumbered from 309-021-0010(3); MHD 18-1985, f. & ef. 12-5-85; MHD 3-1987, f. & ef. 4-9-87; MHD 3-1991, f. 6-21-91, cert. ef. 8-15-91; MHD 7-1995, f. 12-27-95, cert. ef. 1-1-96; Renumbered from 309-116-0010, OMAP 60-2005, f. 11-22-05, cert. ef. 1-1-06; Renumbered from 410-011-0010, DHSD 4-2007, f. 6-29-07, cert. ef. 7-1-07; Suspended by DHSD 4-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-045-0420

General Policy

(1) The Department believes every individual is deserving of safe, respectful and dignified treatment provided in a caring environment. To that end, all employees, volunteers, contractors and their employees, as well as visitors will conduct themselves in such a manner that individuals are free from abuse.

(2) In these rules, the term “abuse” is given a broad definition because of the unique vulnerability of individuals served by the Department. While some examples are listed later in these rules (including specific conduct listed in ORS 430.735(1)), it must be clearly understood that all possible situations cannot be anticipated and each case must be evaluated based on the particular facts available.

Stat. Authority: ORS 179.040, 409.010, 409.050

Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210, 430.735-430.765

Hist.: MHD 23, f. 8-5-74, ef. 8-25-74; MHD 19-1982(Temp), f. & ef. 9-10-82; MHD 4-1983, f. & ef. 3-4-83, Renumbered from 309-021-0010(4); MHD 3-1987, f. & ef. 4-9-87; MHD 3-1991, f. 6-21-91, cert. ef. 8-15-91; MHD 7-1995, f. 12-27-95, cert. ef. 1-1-96; Renumbered from 309-116-0020, OMAP 60-2005, f. 11-22-05, cert. ef. 1-1-06; Renumbered from 410-011-0020, DHSD 4-2007, f. 6-29-07, cert. ef. 7-1-07; Suspended by DHSD 4-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-045-0430

Policy Regarding Abuse

(1) All forms of abuse are prohibited. Staff, visitors, volunteers, contractors and their employees must continually be aware of the potential for abuse in interactions with individuals.

(2) Listed below are examples of the type of conduct which constitutes abuse. This list of examples is by no means exhaustive and represents general categories of prohibited conduct. Conduct of a like or similar nature is also obviously prohibited. Examples include, but are not limited to:

(a) Physical Abuse: Examples include hitting, kicking, scratching, pinching, choking, spanking, pushing, slapping, twisting of head, arms, or legs, tripping, the use of physical force which is unnecessary or excessive or other physical contact with an individual inconsistent with prescribed treatment or care;

(b) Verbal Abuse: Verbal conduct may be abusive because of either the manner of communicating with or the content of the communication with individuals. Examples include yelling, ridicule, harassment, coercion, threats, intimidation, cursing, foul language or other forms of communication which are derogatory or disrespectful of the individual, or remarks intended to provoke a negative response by the individual;

(c) Abuse by Failure to Act: This includes neglecting the care of the individual resulting in death (including suicide), physical or psychological harm, or a significant risk of harm to the individual either by failing to provide authorized and prescribed treatment or by failing to intervene when an individual needs assistance such as denying food or drink or leaving the individual unattended when staff presence is mandated;

(d) Sexual Abuse: Examples include:

(A) Contact of a sexual nature between staff and individuals;

(B) Failure to discourage sexual advances toward staff by individuals; and

(C) Permitting the sexual exploitation of individuals or use of individual sexual activity for staff entertainment or other improper purpose.

(e) Condoning Abuse: Permitting abusive conduct toward an individual by any other staff, individual, or person; and

(f) Statutory Terms of Abuse: As defined in ORS 430.735: any death caused by other than accidental or natural means; any physical injury caused by other than accidental means, or that appears to be at variance with the explanation given of the injury; willful infliction of physical pain or injury, sexual harassment or exploitation, including but not limited to any sexual contact between an employee of a facility or community program and an adult, and neglect that leads to physical harm or significant mental injury through withholding of services necessary to maintain health and well being.

(3) At times, persons may be required to utilize self-defense. This includes control procedures that are designed to minimize physical injury to the individual or other persons. Employees are expected to use the least restrictive procedures necessary under the circumstances for dealing with an individual’s behaviors or defending against an individual’s attack. Abuse does not include acts of self-defense or defense of an individual or other person in response to the use or imminent use of physical force provided that only the degree of force reasonably necessary for protection is used. When excessively severe methods of control are used or when any conduct designed as self-defense is carried beyond what is necessary under the circumstances to protect the individual or other persons from further violence or assault, that conduct then becomes abuse.

Stat. Authority: ORS 179.040, 409.010, 409.050

Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210, 430.735-430.765

MHD 4-1983, f. & ef. 3-4-83, Renumbered from 309-021-0010(5); MHD 3-1987, f. & ef. 4-9-87; MHD 12-1988(Temp), f. & cert. ef. 9-7-88; MHD 1-1989, f. & cert. ef. 2-23-89; MHD 3-1991, f. 6-21-91, cert. ef. 8-15-91; MHD 7-1995, f. 12-27-95, cert. ef. 1-1-96; MHD 2-1996, f. & cert. ef. 1-12-96; Renumbered from 309-116-0015, OMAP 60-2005, f. 11-22-05, cert. ef. 1-1-06; Renumbered from 410-011-0030, DHSD 4-2007, f. 6-29-07, cert. ef. 7-1-07; Suspended by DHSD 4-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-045-0440

Reporting Requirements

(1) Oregon Statute requires mandatory reports and investigations of allegations of abuse of individuals with disabilities. Therefore, any person who has reasonable cause to believe that an incident of abuse has occurred to an individual residing at a state hospital or residential training center will immediately report the incident according to the procedures set forth in the applicable state hospital or residential training center policy on abuse reporting.

(2) Any person participating in good faith in reporting alleged abuse and who has reasonable grounds for reporting has immunity from any civil liability that otherwise might be imposed or incurred based on the reporting or the content of the report under ORS 430.753(1).

(3) The identity of the person reporting alleged abuse is confidential. The Department or OIT will reveal the names of abuse reporters to law enforcement agencies, public agencies who certify or license facilities or persons practicing therein, public agencies providing services to the individuals, private agencies providing protective services for the individual, and the protection and advocacy system for individuals designated by federal law. The identity of the person reporting alleged abuse may also be disclosed in certain legal proceedings including, but not limited to, Human Resources or other administrative proceedings and criminal prosecution.

Stat. Authority: ORS 179.040, 409.010, 409.050

Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210, 430.735-430.765

Hist.: MHD 23, f. 8-5-74, ef. 8-25-74; MHD 19-1982(Temp), f. & ef. 9-10-82; MHD 4-1983, f. & ef. 3-4-83, Renumbered from 309-021-0010(5); MHD 3-1991, f. 6-21-91, cert. ef. 8-15-91; MHD 7-1995, f. 12-27-95, cert. ef. 1-1-96; Renumbered from 309-116-0020, OMAP 60-2005, f. 11-22-05, cert. ef. 1-1-06; Renumbered from 410-011-0040, DHSD 4-2007, f. 6-29-07, cert. ef. 7-1-07; Suspended by DHSD 4-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-045-0450

Preliminary Procedures

(1) Once a report of alleged abuse is made, the following steps will be taken to ensure both a proper investigation and appropriate action are taken to ensure that individuals are free from any threat of abuse:

(a) No later than two hours after receipt of the allegation except for circumstances with good cause the Superintendent will notify the Office of Investigations and Training (OIT) of the report of alleged abuse. OIT will determine whether the allegation, if true, would fit within the definition of abuse. This determination will be made in consultation with the Superintendent. The determination must be made within 24 hours of receipt of the report of abuse;

(b) If the allegation is determined to not fit the definition of abuse, the Superintendent may take other appropriate action, such as a referral to Human Resources for review as a performance issue, worksite training, or take other systemic measures to resolve problems identified;

(c) The Superintendent with OIT will further ensure that if the allegation meets the definition of child abuse under ORS 419B.005, or elder abuse under ORS 124.050 it has been reported to the appropriate agency.

(2) Immediately and no later than 24 hours after determining that the allegation comes within the definition of abuse under this policy or other applicable laws, the Superintendent will:

(a) Provide appropriate protective services to the individual that may include arranging for immediate protection of the individual and the provision of appropriate services including medical, legal or other services necessary to prevent further abuse;

(b) Determine with OIT if there is reason to believe that an investigation by an appropriate law enforcement agency is necessary, and if so, request that such agency determine whether there is reason to believe a crime has been committed;

(c) Make a report to any other appropriate agencies, e.g., Children, Adults and Families Division (CAF) (formerly State Office for Services to Children and Families) or Seniors and People with Disabilities Division (SPD) or Addictions and Mental Health Division (AMH).

(d) Promptly notify the legal guardian (of an adjudicated incapacitated individual) of the alleged incident and give an explanation of the procedures that will be used to investigate and resolve the matter; as well as the facility’s responsibility to provide appropriate protective services;

(e) Contact the Administrator of the Department if the individual has sustained serious injury.

Stat. Authority: ORS 179.040, 409.010, 409.050

Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210, 430.735-430.765

Hist.: MHD 7-1995, f. 12-27-95, cert. ef. 1-1-96; Renumbered from 309-116-0030, OMAP 60-2005, f. 11-22-05, cert. ef. 1-1-06; Renumbered from 410-011-0050, DHSD 4-2007, f. 6-29-07, cert. ef. 7-1-07; Suspended by DHSD 4-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-045-0460

Investigation by the Office of Investigations and Training

(1) Investigation of allegations of abuse will be thorough and unbiased. An investigation of the allegation will be conducted by the Office of Investigations and Training (OIT).

(2) OIT will conduct interviews with any party alleging an incident of abuse, the individual allegedly abused, and the person accused. OIT will also include interviews with persons appearing to be involved in or having knowledge of the alleged abuse or surrounding circumstances.

(3) All records necessary for the investigation will be available to OIT for inspection and copying. OIT will collect information which has relevance to the alleged event. This may include, but is not limited to, individual or facility records, statements, diagrams, photographs and videos.

(4) If the facts in the case are disputed and a law enforcement agency does not produce an investigation report, OIT will determine the manner and methods of conducting the investigation.

(5) When a law enforcement agency is conducting a criminal investigation of the alleged abuse, OIT may also perform its own investigation unless OIT is advised by the law enforcement agency that a concurrent OIT investigation would interfere with the criminal investigation.

Stat. Authority: ORS 179.040, 409.010, 409.050

Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210, 430.735-430.765

Hist.: MHD 7-1995, f. 12-27-95, cert. ef. 1-1-96; MHD 5-1998, f. 6-26-98, cert. ef. 7-1-98; Renumbered from 309-116-0040, OMAP 60-2005, f. 11-22-05, cert. ef. 1-1-06; Renumbered from 410-011-0060, DHSD 4-2007, f. 6-29-07, cert. ef. 7-1-07; Suspended by DHSD 4-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-045-0470

Abuse Investigation Report

(1) OIT will complete its investigation and submit a draft report to the Superintendent within 30 calendar days after initiating an investigation unless other laws or regulations require a shorter time frame. The investigation must be complete within 30 calendar days unless the Administrator grants an extension. The Administrator may grant an extension when a key party is unavailable, new evidence is discovered, the investigation is complex (e.g. large numbers of witnesses need to be interviewed, taking into account scheduling difficulties and limitations, consultation with experts, or a detailed review of records over an extended period of time is required) or for some other mitigating reason. The Administrator will specify the length of the extension.

(2) The Superintendent along with OIT is responsible for reviewing the OIT and/or law enforcement investigation report. The Superintendent and OIT will also review and discuss any other relevant reports or information.

(3) OIT will determine whether the evidence does or does not substantiate the allegation of abuse. In some instances, OIT may determine that the evidence is inconclusive. The determination must be made within 15 calendar days from completion of the draft investigation report, unless a key party is unavailable, additional evidence is discovered, or the Administrator grants an extension for some other mitigating reason. Any determination not made within the 15-day period must be made as soon as reasonably possible thereafter.

(4) Once this review is complete, a final report will be prepared by OIT, which includes:

(a) A statement of the alleged incident being investigated, including the dates(s), location(s) and time(s);

(b) An outline of steps taken in the investigation, a list of all witnesses interviewed and a summary of the information provided by each witness;

(c) A summary of findings and conclusion concerning the allegation of abuse;

(d) A specific finding of substantiated, inconclusive or not substantiated;

(e) A plan of action necessary to prevent further abuse of the individual;

(f) Any additional corrective action required by the hospital or residential training center and deadlines for the completion of these actions;

(g) A list of any notices made to licensing agencies;

(h) The name and title of the person completing the report; and

(i) The date it is written.

(5) If the allegation of abuse is substantiated, the Superintendent will direct that appropriate action be taken against the responsible person commensurate with the seriousness of the conduct and any aggravating or mitigating circumstances, including consideration of previous conduct of record. If Human Resources is involved, as necessary to comply with laws related to employee rights, additional investigation may be conducted.

(6) If the allegations are found to be inconclusive; the Superintendent may request a review by the Human Resources Department to determine the need for any training or disciplinary action, as warranted by the facts and any follow-up investigative work.

(7) The Superintendent will ensure that appropriate documentation exists as to the action taken as a result of an abuse investigation.

(8) The Superintendent will ensure that a copy of the law enforcement investigation report is forwarded to OIT.

Stat. Authority: ORS 179.040, 409.010, 409.050

Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210, 430.735-430.765

Hist.: MHD 7-1995, f. 12-27-95, cert. ef. 1-1-96; Renumbered from 309-116-0050, OMAP 60-2005, f. 11-22-05, cert. ef. 1-1-06; Renumbered from 410-011-0070, DHSD 4-2007, f. 6-29-07, cert. ef. 7-1-07; Suspended by DHSD 4-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-045-0480

Disclosure of Investigation Report and Related Documents

(1) Investigation Reports prepared by OIT are subject to the following:

(a) Portions of the abuse investigation report and underlying investigatory documents are confidential and not available for public inspection. Pursuant to ORS 430.763, names of persons who make reports of abuse, witnesses, and the alleged abuse victim are confidential and shall not be available for public inspection. Investigatory documents, including portions of the abuse investigation report that contains “Individually identifiable health information”, as that term is defined under ORS 192.519 and 45 CFR160.103, are confidential under HIPAA privacy rules, 45 CFR Part 160 and 164, and ORS 192.520 and 179.505 to 509.

(b) Notwithstanding subsection (a) of this rule, the Department and OIT will make the confidential information, including any photographs, available, if appropriate, to any law enforcement agency, to any public agency that licenses or certifies facilities or licenses or certifies the persons practicing therein, and to any public agency providing protective services for the adult. The Department and OIT will also make the protective services report and underlying investigatory materials available to any private agency providing protective services for the adult and to the protection and advocacy system designated pursuant to ORS 192.517(1).

(c) Persons or entities receiving confidential information pursuant to this rule must maintain the confidentiality of the information and may not redisclose the confidential information to unauthorized persons or entities, as required by state or federal law.

(d) When the report is completed, a redacted version of the abuse investigation report not containing any confidential information, the disclosure of which would be prohibited by state or federal law, will be available for public inspection.

(2) The OIT report will be disclosed by OIT or the Superintendent to:

(a) The Administrator of the Department; and

(b) Any person designated by the Superintendent for purposes related to the proper administration of the institution or center such as assessing patterns of abuse or to respond to personnel actions and may be disclosed in the Superintendent’s discretion;

(c) The individual involved;

(d) The guardian of an adjudicated incapacitated person; and

(e) The person or persons who allegedly abused the individual.

(3) Copies of all reports will be maintained by the Superintendent in a place separate from personnel files of employees. The chart of the individual allegedly abused must contain a reference to the report sufficient to enable authorized persons to retrieve and review the report.

Stat. Authority: ORS 179.040, 409.010, 409.050

Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210, 430.735-430.765

Hist.: MHD 7-1995, f. 12-27-95, cert. ef. 1-1-96; Renumbered from 309-116-0060, OMAP 60-2005, f. 11-22-05, cert. ef. 1-1-06; Renumbered from 410-011-0080, DHSD 4-2007, f. 6-29-07, cert. ef. 7-1-07; Suspended by DHSD 4-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-045-0490

Consequences of Abuse

(1) All persons will be subject to appropriate action if found responsible for:

(a) Abusing an individual;

(b) Failing to report an alleged incident of abuse; or

(c) Refusing to give information or giving untruthful information during an investigation of alleged abuse.

(2) Any discipline of an employee as a result of the above-described conduct must be in conformance with any applicable standards contained in state law or in a Collective Bargaining Agreement.

(3) Any employee dismissed for violating the abuse policy will not be rehired in any capacity, nor will the person be permitted to visit or otherwise have contact with individuals in any manner.

(4) Any volunteer found violating the abuse policy may be denied visitation or any other contact with individuals.

(5) Any contractor found violating the abuse policy will be at risk of immediate termination of the contract. Any employee of the contractor found in violation of the abuse policy may be excluded from the grounds and may be subject to appropriate disciplinary action by his or her employer.

(6) Any visitor found in violation of the abuse policy may be excluded from the grounds and will be subject to other appropriate actions as determined by the Superintendent.

(7) Any employee, volunteer, contractor, contractor’s employee, or visitor may be subject to criminal prosecution depending on the outcome of any allegation referred to law enforcement for investigation.

(8) Any staff found to have violated the abuse policy will be reported to any appropriate professional licensing or certification boards or associations; and is at risk of sanctions imposed by such a body.

Stat. Authority: ORS 179.040, 409.010, 409.050

Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210, 430.735-430.765

Hist.: MHD 7-1995, f. 12-27-95, cert. ef. 1-1-96; Renumbered from 309-116-0090, OMAP 60-2005, f. 11-22-05, cert. ef. 1-1-06; Renumbered from 410-011-0090, DHSD 4-2007, f. 6-29-07, cert. ef. 7-1-07; Suspended by DHSD 4-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-045-0500

Notice of Abuse Policy

(1) Each individual must be informed upon admission and his or her guardian, if any, or his or her family will also be informed orally and in writing of the rights, policies, abuse definitions and procedures concerning prohibition of abuse of individuals.

(2) A clear and simple statement of the title and number of this policy and how to seek advice about its content will be prominently displayed in areas frequented by individuals at each state hospital and residential training center.

(3) All staff will be provided a copy of this rule, either at the commencement of their employment, and/or duties, or, for current staff, within 90 days of the effective date of this rule and once a year thereafter. All staff must sign a form acknowledging receipt of this information on the date of receipt.

(4) A summary of this policy will be posted in all state hospitals and residential training centers in areas regularly frequented by visitors and in a manner designed to notify visitors of the policy. Copies of the complete policy will be provided to visitors upon request.

Stat. Authority: ORS 179.040, 409.010, 409.050

Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210, 430.735-430.765

Hist.: MHD 7-1995, f. 12-27-95, cert. ef. 1-1-96; Renumbered from 309-116-0100, OMAP 60-2005, f. 11-22-05, cert. ef. 1-1-06; Renumbered from 410-011-0100, DHSD 4-2007, f. 6-29-07, cert. ef. 7-1-07; Suspended by DHSD 4-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-045-0510

Retaliation

(1) No state hospital or residential training center staff or other person will retaliate against any person who reports in good faith suspected abuse or against the individual with respect to any report.

(2) Any state hospital or residential training center staff or other person who retaliates against any person because of a report of suspected abuse or neglect will be liable according to ORS 430.755, in a private action to that person for actual damages and, in addition, will be subject to a penalty of up to $1,000, notwithstanding any other remedy provided by law.

Stat. Authority: ORS 179.040, 409.010, 409.050

Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210, 430.735-430.765

Hist.: MHD 7-1995, f. 12-27-95, cert. ef. 1-1-96; Renumbered from 309-116-0090, OMAP 60-2005, f. 11-22-05, cert. ef. 1-1-06; Renumbered from 410-011-0110, DHSD 4-2007, f. 6-29-07, cert. ef. 7-1-07; Suspended by DHSD 4-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-045-0520

Quality Assurance Review

(1) Each of the State Hospitals and Residential Training Centers will report on critical indicators, identified by the Department; and on quality improvement activities undertaken to improve any identified issues.

(2) These reports must be provided to the Department monthly.

(3) Representatives from each State Hospital or Training Center and OIT will meet quarterly with the Administrators of the Department, or designee. They will regularly review quality indicators and any other Department generated information regarding the abuse and neglect system in State Hospitals and Training Centers.

(4) The Department must make such information part of any quality improvement activities of the Department.

Stat. Authority: ORS 179.040, 409.010, 409.050

Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210, 430.735-430.765

Hist.: MHD 7-1995, f. 12-27-95, cert. ef. 1-1-96; Renumbered from 309-116-0100, OMAP 60-2005, f. 11-22-05, cert. ef. 1-1-06; Renumbered from 410-011-0120, DHSD 4-2007, f. 6-29-07, cert. ef. 7-1-07; Suspended by DHSD 4-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

 

Rule Caption: Amendments to Electronic Data Transmission (EDT) Rules.

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

Filed with Sec. of State: 7-1-2011

Certified to be Effective: 7-1-11 thru 12-27-11

Notice Publication Date:

Rules Amended: 407-120-0100, 407-120-0112, 407-120-0114, 407-120-0150, 407-120-0200

Subject: The Department of Human Services (Department) needs to amend these rules to ensure the Department’s EDT rules compliment the functionality of the Oregon Replacement Medicaid Management Information System (MMIS) in conjunction with the Health Insurance Portability and Accountability Act (HIPAA) transactions and codes set standards for the exchange of electronic data.

      Proposed rules are available on the DHS Website: http://www.oregon.gov/DHS/admin/dwssrules/index.shtml.

      For hardcopy requests, call: (503) 947-5250.

Rules Coordinator: Jennifer Bittel—(503) 947-5250

407-120-0100

Definitions

The following definitions apply to OAR 407-120-0100 through 407-120-0200:

(1) “Access” means the ability or means necessary to read, write, modify, or communicate data or information or otherwise use any information system resource.

(2) “Agent” means a third party or organization that contracts with a provider, allied agency, or prepaid health plan (PHP) to perform designated services in order to facilitate a transaction or conduct other business functions on its behalf. Agents include billing agents, claims clearinghouses, vendors, billing services, service bureaus, and accounts receivable management firms. Agents may also be clinics, group practices, and facilities that submit billings on behalf of providers but the payment is made to a provider, including the following: an employer of a provider, if a provider is required as a condition of employment to turn over his fees to the employer; the facility in which the service is provided, if a provider has a contract under which the facility submits the claim; or a foundation, plan, or similar organization operating an organized health care delivery system, if a provider has a contract under which the organization submits the claim. Agents may also include electronic data transmission submitters.

(3) “Allied Agency” means local and regional allied agencies and includes local mental health authority, community mental health programs, Oregon Youth Authority, Department of Corrections, local health departments, schools, education service districts, developmental disability service programs, area agencies on aging, federally recognized American Indian tribes, and other governmental agencies or regional authorities that have a contract (including an interagency, intergovernmental, or grant agreement, or an agreement with an American Indian tribe pursuant to ORS 190.110) with the Department to provide for the delivery of services to covered individuals and that request to conduct electronic data transactions in relation to the contract.

(4) “Clinic” means a group practice, facility, or organization that is an employer of a provider, if a provider is required as a condition of employment to turn over his fees to the employer; the facility in which the service is provided, if a provider has a contract under which the facility submits the claim; or a foundation, plan, or similar organization operating an organized health care delivery system, if a provider has a contract under which the organization submits the claim; and the group practice, facility, or organization is enrolled with the Department, and payments are made to the group practice, facility, or organization. If the entity solely submits billings on behalf of providers and payments are made to each provider, then the entity is an agent.

(5) “Confidential Information” means information relating to covered individuals which is exchanged by and between the Department, a provider, PHP, clinic, allied agency, or agents for various business purposes, but which is protected from disclosure to unauthorized individuals or entities by applicable state and federal statutes such as ORS 344.600, 410.150, 411.320, 418.130, or the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 and its implementing regulations. These statutes and regulations are collectively referred to as “Privacy Statutes and Regulations.”

(6) “Contract” means a specific written agreement between the Department and a provider, PHP, clinic, or allied agency that provides or manages the provision of services, goods, or supplies to covered individuals and where the Department and a provider, PHP, clinic, or allied agency may exchange data. A contract specifically includes, without limitation, a Department provider enrollment agreement, fully capitated heath plan managed care contract, dental care organization managed care contract, mental health organization managed care contract, chemical dependency organization managed care contract, physician care organization managed care contract, a county financial assistance agreement, or any other applicable written agreement, interagency agreement, intergovernmental agreement, or grant agreement between the Department and a provider, PHP, clinic, or allied agency.

(7) “Covered Entity” means a health plan, health care clearing house, health care provider, or allied agency that transmits any health information in electronic form in connection with a transaction, including direct data entry (DDE), and who must comply with the National Provider Identifier (NPI) requirements of 45 CFR 162.402 through 162.414.

(8) “Covered Individual” means individuals who are eligible for payment of certain services or supplies provided to them or their eligible dependents by or through a provider, PHP, clinic, or allied agency under the terms of a contract applicable to a governmental program for which the Department processes or administers data transmissions.

(9) “Data” means a formalized representation of specific facts or concepts suitable for communication, interpretation, or processing by individuals or by automatic means.

(10) “Data Transmission” means the transfer or exchange of data between the Department and a web portal or electronic data interchange (EDI) submitter by means of an information system which is compatible for that purpose and includes without limitation, web portal, EDI, electronic remittance advice (ERA), or electronic media claims (EMC) transmissions.

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

(12) “Department Network and Information Systems” means the Department’s computer infrastructure that provides personal communications, confidential information, regional, wide area and local networks, and the internetworking of various types of networks on behalf of the Department.

(13) “Direct Data Entry (DDE)” means the process using dumb terminals or computer browser screens where data is directly keyed into a health plan’s computer by a provider or its agent, such as through the use of a web portal.

(14) “Electronic Data Interchange (EDI)” means the exchange of business documents from application to application in a federally mandated format or, if no federal standard has been promulgated, using bulk transmission processes and other formats as the Department designates for EDI transactions. For purposes of these rules (OAR 407-120-0100 through 407-120-0200), EDI does not include electronic transmission by web portal.

(15) “Electronic Data Interchange Submitter” means an individual or entity authorized to establish the electronic media connection with the Department to conduct an EDI transaction. An EDI submitter may be a trading partner or an agent of a trading partner.

(16) “Electronic Media” means electronic storage media including memory devices in computers or computer hard drives; any removable or transportable digital memory medium such as magnetic tape or disk, optical disk, or digital memory card; or transmission media used to exchange information already in electronic storage media. Transmission media includes but is not limited to the internet (wide-open), extranet (using internet technology to link a business with information accessible only to collaborating parties), leased lines, dial-up lines, private networks, and the physical movement of removable or transportable electronic storage media. Certain transmissions, including paper via facsimile and voice via telephone, are not considered transmissions by electronic media because the information being exchanged did not exist in electronic form before transmission.

(17) “Electronic Media Claims (EMC)” means an electronic media means of submitting claims or encounters for payment of services or supplies provided by a provider, PHP, clinic, or allied agency to a covered individual.

(18) “Electronic Remittance Advice (ERA)” means an electronic file in X12 format containing information pertaining to the disposition of a specific claim for payment of services or supplies rendered to covered individuals which are filed with the Department on behalf of covered individuals by providers, clinics, or allied agencies. The documents include, without limitation, the provider name and address, individual name, date of service, amount billed, amount paid, whether the claim was approved or denied, and if denied, the specific reason for the denial. For PHPs, the remittance advice file contains information on the adjudication status of encounter claims submitted.

(19) “Electronic Data Transaction (EDT)” means a transaction governed by the Health Insurance Portability and Accountability Act (HIPAA) transaction rule, conducted by either web portal or EDI.

(20) “Envelope” means a control structure in a mutually agreed upon format for the electronic interchange of one or more encoded data transmissions either sent or received by an EDI submitter or the Department.

(21) “HIPAA Transaction Rule” means the standards for electronic transactions at 45 CFR Part 160 and 162 (version in effect on January 1, 2008) adopted by the Department of Health and Human Services (DHHS) to implement the Health Insurance Portability and Accountability Act of 1996, 42 USC 1320d et. seq.

(22) “Incident” means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of an information system or information asset including but not limited to unauthorized disclosure of information, failure to protect user IDs, and theft of computer equipment using or storing Department information assets or confidential information.

(23) “Individual User Profile (IUP)” means Department forms used to authorize a user, identify their job assignment, and the required access to the Department’s network and information system. It generates a unique security access code used to access the Department’s network and information system.

(24) “Information Asset” means all information, also known as data, provided through the Department, regardless of the source, which requires measures for security and privacy of the information.

(25) “Information System” means an interconnected set of information resources under the same direct management control that shares common functionality. A system normally includes hardware, software, information, data, applications, communications, and trained personnel necessary for successful data transmission.

(26) “Lost or Indecipherable Transmission” means a data transmission which is never received by or cannot be processed to completion by the receiving party in the format or composition received because it is garbled or incomplete, regardless of how or why the message was rendered garbled or incomplete.

(27) “Mailbox” means the term used by the Department to indicate trading partner-specific locations on the Department’s secure file transfer protocol (SFTP) server to deposit and retrieve electronic data identified by a unique Department assigned trading partner number.

(28) “Password” means the alpha-numeric codes assigned to an EDI submitter by the Department for the purpose of allowing access to the Department’s information system, including the web portal, for the purpose of successfully executing data transmissions or otherwise carrying out the express terms of a trading partner agreement or provider enrollment agreement and these rules.

(29) “Personal Identification Number (PIN)” means the alpha-numeric codes assigned to web portal submitters by the Department for the purpose of allowing access to the Department’s information system, including the web portal, for the purpose of successfully executing DDE, data transmissions, or otherwise carrying out the express terms of a trading partner agreement, provider enrollment agreement, and these rules.

(30) “Prepaid Health Plan (PHP) or Plan” means a managed health care, dental care, chemical dependency, physician care organization, or mental health care organization that contracts with the Department on a case managed, prepaid, capitated basis under the Oregon Health Plan (OHP).

(31) “Provider” means an individual, facility, institution, corporate entity, or other organization which supplies or provides for the supply of services, goods or supplies to covered individuals pursuant to a contract, including but not limited to a provider enrollment agreement with the Department. A provider does not include billing providers as used in the Division of Medical Assistance (DMAP) general rules. DMAP billing providers are defined in these rules as agents, except for DMAP billing providers that are clinics.

(32) “Provider Enrollment Agreement” means an agreement between the Department and a provider for payment for the provision of covered services to covered individuals.

(33) “Registered Transaction” means each type of EDI transaction applicable to a trading partner that must be registered with the Department before it can be tested or approved for EDI transmission.

(34) “Security Access Codes” means the alpha-numeric codes assigned by the Department to the web portal submitter or EDI submitter for the purpose of allowing access to the Department’s information system, including the web portal, to execute data transmissions or otherwise carry out the express terms of a trading partner agreement, provider enrollment agreement, and these rules. Security access codes may include passwords, PINs, or other codes.

(35) “Source Documents” means documents or electronic files containing underlying data which is or may be required as part of a data transmission with respect to a claim for payment of charges for medical services or supplies provided to a covered individual, or with respect to any other transaction. Examples of data contained within a specific source document include but are not limited to an individual’s name and identification number, claim number, diagnosis code for the services provided, dates of service, service procedure description, applicable charges for the services provided, and a provider’s, PHP’s, clinic’s, or allied agency’s name, identification number, and signature.

(36) “Standard” means a rule, condition, or requirement describing the following information for products, systems, or practices:

(a) Classification of components;

(b) Specification of materials, performance, or operations; or

(c) Delineation of procedures.

(37) “Standards for Electronic Transactions” mean a transaction that complies with the applicable standard adopted by DHHS to implement standards for electronic transactions.

(38) “Submitter” means a provider, PHP, clinic, or allied agency that may or may not have entered into a trading partner agreement depending upon whether the need is to exchange electronic data transactions or access the Department’s web portal.

(39) “Transaction” means the exchange of data between the Department and a provider using web portal access or a trading partner using electronic media to carry out financial or administrative activities.

(40) “Trade Data Log” means the complete written summary of data and data transmissions exchanged between the Department and an EDI submitter during the period of time a trading partner agreement is in effect and includes but is not limited to sender and receiver information, date and time of transmission, and the general nature of the transmission.

(41) “Trading Partner” means a provider, PHP, clinic, or allied agency that has entered into a trading partner agreement with the Department in order to satisfy all or part of its obligations under a contract by means of EDI, ERA, or EMC, or any other mutually agreed means of electronic exchange or transfer of data.

(42) “Trading Partner Agreement (TPA)” means a specific written request by a provider, PHP, clinic, or allied agency to conduct EDI transactions that governs the terms and conditions for EDI transactions in the performance of obligations under a contract. A provider, PHP, clinic, or allied agency that has executed a TPA will be referred to as a trading partner in relation to those functions.

(43) “User” means any individual or entity authorized by the Department to access network and information systems or information assets.

(44) “User Identification Security (UIS)” means a control method required by the Department to ensure that only authorized users gain access to specified information assets. One method of control is the use of passwords and PINs with unique user identifications.

(45) “Web Portal” means a site on the World Wide Web that typically provides secure access with personalized capabilities to its visitors and a pathway to other content designed for use with the Department’s specific DDE applications.

(45) “Web Portal Submitter” means an individual or entity authorized to establish an electronic media connection with the Department to conduct a DDE transaction. A web portal submitter may be a provider or a provider’s agent.

Stat. Auth.: ORS 409.050 & 414.065

Stats. Implemented: ORS 414.065

Hist.: OMAP 25-2003(Temp), f. & cert. ef. 3-21-03 thru 9-8-03; OMAP 55-2003, f. & cert. ef. 8-22-03; DMAP 30-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08; Renumbered from 410-001-0100, DHSD 1-2008, f. & cert. ef. 2-1-08; DHSD 5-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-120-0112

Scope and Sequence of Electronic Data Transmission Rules

(1) The Department communicates with and receives communications from its providers, PHPs, and allied agencies using a variety of methods appropriate to the services being provided, the nature of the entity providing the services, and constantly changing technology. These rules describe some of the basic ways that the Department will exchange data electronically. Additional details may be provided in the Department’s access control rules, provider-specific rules, or the applicable contract documents.

(2) Access to eligibility information about covered individuals may occur using one or more of the following methods:

(a) Automated voice response, via a telephone;

(b) Web portal access;

(c) EDI submitter access; or

(d) Point of sale (POS) for pharmacy providers.

(3) Claims for which the Department is responsible for payment or encounter submissions made to the Department may occur using one or more of the following methods:

(a) Paper, using the form specified in the provider specific rules and supplemental billing guidance. Providers may submit paper claims, except that pharmacy providers are required to use the POS process for claims submission and PHPs are required to use the 837 electronic formats;

(b) Web portal access;

(c) EDI submitter access; or

(d) POS for pharmacy providers.

(4) Department informational updates, provider record updates, depository for PHP reports, or EDT as specified by the Department for contract compliance.

(5) Other Department network and information system access is governed by specific program requirements, which may include but is not limited to IUP access. Affected providers, PHPs, and allied agencies will be separately instructed about the access and requirements. Incidents are subject to these rules.

(6) Providers and allied agencies that continue to use only paper formats for claims transactions are only subject to the confidentiality and security rule, OAR 407-120-0170.

Stat. Auth.: ORS 409.050 & 414.065

Stats. Implemented: ORS 414.065

Hist.: DHSD 13-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08; DHSD 1-2008, f. & cert. ef. 2-1-08; DHSD 5-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-120-0114

Provider Enrollment Agreement

(1) When a provider applies to enroll, the application form will include information about how to participate in the web portal for use of DDE and automated voice response (AVR) inquiries. The enrollment agreement will include a section describing the process that will permit the provider, once enrolled, to participate in DDE over the Internet using the secure Department web portal. This does not include providers enrolled through the use of the DMAP 3108 Managed Care Plan and FFS Non Paid Provider Application.

(2) When the provider number is issued by the Department, the provider will also receive two PINs: one that may be used to access the web portal and one that may be used for AVR.

(a) If the PINs are not activated within 60 days of issuance, the Department will initiate a process to inactivate the PIN. If the provider wants to use PIN-based access to the web portal or AVR after deactivation, the provider must submit an update form to obtain another PIN.

(b) Activating the PIN will require Internet access and the provider must supply security data that will be associated with the use of the PIN.

(c) Providers using the PIN are responsible for protecting the confidentiality and security of the PIN pursuant to OAR 407-120-0170.

Stat. Auth.: ORS 409.050 & 414.065

Stats. Implemented: ORS 414.065

Hist.: DHSD 13-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08; DHSD 1-2008, f. & cert. ef. 2-1-08; DHSD 5-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-120-0150

Testing — EDI Transactions

(1) When a trading partner or authorized EDI submitter registers an EDI transaction with the Department, the Department may require testing before authorizing the transaction. Testing may include third party and business-to-business testing. An EDI submitter must be able to demonstrate its capacity to send and receive each transaction type for which it has registered. The Department will reject any EDI transaction if an EDI submitter either refuses or fails to comply with the Department testing requirements.

(2) The Department may require EDI submitters to complete compliance testing at an EDI submitter’s expense for each transaction type if either the Department or an EDI submitter has experienced a change to hardware or software applications by entering into business-to-business testing.

(3) When third party or business-to-business testing is completed to the Department’s satisfaction, the Department will notify an EDI submitter that it will register and accept the transactions in the production environment. This notification authorizes an EDI submitter to submit the registered EDI transactions to the Department for processing and response, as applicable. If there are any changes in the trading partner or EDI submitter authorization, profile data or EDI registration information on file with the Department, updated information must be submitted to the Department as required in OAR 407-120-0190.

(4) Testing will be conducted using secure electronic media communications methods.

(5) An EDI submitter may be required to re-test with the Department if the Department format changes or if the EDI submitter format changes.

Stat. Auth.: ORS 409.050 & 414.065

Stats. Implemented: ORS 414.065

Hist.: OMAP 25-2003(Temp), f. & cert. ef. 3-21-03 thru 9-8-03; OMAP 55-2003, f. & cert. ef. 8-22-03; DMAP 30-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08; Renumbered from 410-001-0150, DHSD 1-2008, f. & cert. ef. 2-1-08; DHSD 5-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

407-120-0200

Department System Administration

(1) No individual or entity shall be registered to conduct a web portal or an EDI transaction with the Department except as authorized under these the rules. Eligibility and continued participation as a provider, PHP, allied agency, or web portal submitter in the conduct of DDE transactions, or as a trading partner or EDI submitter in the conduct of registered transactions, is conditioned on the execution and delivery of the documents required in these rules, the continued accuracy of that information consistent with OAR 407-120-0190, and compliance with a requirements of these rules. Data, including confidential information, governed by these rules may be used for purposes related to treatment, payment, and health care operations and for the administration of programs or services by the Department.

(2) In addition to the requirements of section (1) of this rule, in order to qualify as a trading partner:

(a) An individual or entity must be a Department provider, PHP, clinic, or allied agency pursuant to a current valid contract; and

(b) A provider, PHP, clinic, or allied agency must have submitted an executed TPA and all related documentation, including the application for authorization, that identifies and authorizes an EDI submitter.

(3) In addition to the requirements of section (1) of this rule, in order to qualify as an EDI submitter:

(a) A trading partner must have identified the individual or entity as an authorized EDI submitter in the application for authorization;

(b) If a trading partner identifies itself as an EDI submitter, the application for authorization must include the information required in the “Trading Partner Authorization of EDI Submitter” and the “EDI Submitter Information”; and

(c) If a trading partner uses an agent as an EDI submitter, the application for authorization must include the information described in section (3)(b) and the signed EDI submitter certification.

(4) The EDI registration process described in these rules provides the Department with essential profile information that the Department may use to confirm that a trading partner or EDI submitter is not otherwise excluded or disqualified from submitting EDI transactions to the Department.

(5) Nothing in these rules or a TPA prevents the Department from requesting additional information from a trading partner or an EDI submitter to determine their qualifications or eligibility for registration as a trading partner or EDI submitter.

(6) The Department shall deny a request for registration as a trading partner or for authorization of an EDI submitter or an EDI registration if it finds any of the following:

(a) A trading partner or EDI submitter has substantially failed to comply with the applicable administrative rules or laws;

(b) A trading partner or EDI submitter has been convicted of (or entered a plea of nolo contendre) a felony or misdemeanor related to a crime or violation of federal or state public assistance laws or privacy statutes or regulations;

(c) A trading partner or EDI submitter is excluded from participation in the Medicare program, as determined by the DHHS secretary; or

(d) A trading partner or EDI submitter fails to meet the qualifications as a trading partner or EDI submitter.

(7) Failure to comply with these rules, trading partner agreement, or EDI submitter certification or failure to provide accurate information on an application or certification may also result in sanctions and payment recovery pursuant to applicable Department program contracts or rules.

(8) For providers using the DDE submission system by the Department web portal, failure to comply with the terms of these rules, a web portal registration form, or failure to provide accurate information on the registration form may result in sanctions or payment recovery pursuant to the applicable Department program contracts or rules.

Stat. Auth.: ORS 409.050 & 414.065

Stats. Implemented: ORS 414.065

Hist.: OMAP 25-2003(Temp), f. & cert. ef. 3-21-03 thru 9-8-03; OMAP 55-2003, f. & cert. ef. 8-22-03; DMAP 30-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08; Renumbered from 410-001-0200, DHSD 1-2008, f. & cert. ef. 2-1-08; DHSD 5-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

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

2.) Copyright 2011 Oregon Secretary of State: Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

© 2013 State of Oregon All Rights Reserved​