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Oregon Bulletin

August 1, 2011

 

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

Rule Caption: Developmental Disability Certification and Endorsement.

Adm. Order No.: SPD 12-2011

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

Certified to be Effective: 7-1-11

Notice Publication Date: 6-1-2011

Rules Adopted: 411-323-0010, 411-323-0020, 411-323-0030, 411-323-0040, 411-323-0050, 411-323-0060, 411-323-0070

Subject: The Department of Human Services is adopting rules relating to developmental disability certification in OAR chapter 411, division 323. These rules prescribe standards, responsibilities, and procedures for agencies to obtain certification to provide person-centered services to individuals with developmental disabilities.

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

411-323-0010

Statement of Purpose

These rules prescribe standards, responsibilities, and procedures for agencies to obtain:

(1) Certification and a Medicaid agency identification number, in order to provide person-centered services to individuals with developmental disabilities.

(2) Endorsements to provide the following services:

(a) 24-hour residential as described in OAR chapter 411, division 325;

(b) Supported living as described in OAR chapter 411, division 328;

(c) Proctor care as described in OAR chapter 411, division 335; or

(d) Employment and alternatives to employment as described in OAR chapter 411, division 345.

Stat. Auth. ORS 409.050 & 410.070

Stats. Implemented: ORS 409.050 & 410.070

Hist.: SPD 12-2011, f. & cert. ef. 7-1-11

411-323-0020

Definitions

(1) “Abuse” means:

(a) Abuse of a child as defined in ORS 419B.005, and for the purposes of these rules, abuse of a child also means abuse as defined in OAR 407-045-0260.

(b) Abuse of an adult as defined in OAR 407-045-0260.

(2) “Abuse Investigation and Protective Services” means reporting and investigation activities as required by OAR 407-045-0300 and any subsequent services or supports necessary to prevent further abuse as required in OAR 407-045-0310.

(3) “Administrator” means the Administrator of the Division’s Office of Licensing and Quality of Care, or that person’s designee.

(4) “Adult” means an individual 18 years or older with developmental disabilities.

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

(6) “Agency” means a public or private community agency or organization that provides recognized developmental disability services and is approved by the Department or other appropriate Divisions to provide these services. For the purposes of these rules, “provider”, “service provider”, “program”, “applicant”, or “licensee” is synonymous with “agency”.

(7) “Appeal” means the process under ORS chapter 183 that the certified agency may use to petition the suspension, denial, or revocation of their certificate or application.

(8) “Applicant” means a person, agency, corporation, or governmental unit, who applies for certification to operate an agency providing services to individuals with developmental disabilities.

(9) “Assessment” means an evaluation of an individual’s needs.

(10) “Board of Directors” means a group of persons formed to set policy and give directions to an agency designed to provide services to individuals with developmental disabilities. A board of directors includes local advisory boards used by multi-state organizations.

(11) “Care” means supportive services, including but not limited to provision of room and board, supervision, protection, and assistance in bathing, dressing, grooming, eating, management of money, transportation, or recreation. Care also includes being aware of the individual’s general whereabouts at all times and monitoring the activities of the individual while on the premises of the residence to ensure the individual’s health, safety, and welfare. The term “care” is synonymous with “services”.

(12) “Certificate” means a document issued by the Division to an agency that certifies the agency is eligible to receive state funds for the provision of services and identifies the authorized endorsements.

(13) “Child” means an individual under the age of 18 that has a provisional determination of developmental disability.

(14) “Choice” means the individual’s expression of preference, opportunity for, and active role in decision-making related to the selection of assessments, services, service providers, goals and activities, and verification of satisfaction with these services. Choice is communicated verbally, through sign language, or by other communication methods.

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

(16) “Complaint Investigation” means an investigation of any complaint that has been made to a proper authority that is not covered by an abuse investigation.

(17) “Condition” means a provision attached to a new or existing certificate that limits or restricts the scope of the certificate or imposes additional requirements on the certified agency.

(18) “Denial” means the refusal of the Division to issue a certificate to operate an agency because the Division has determined the agency is not in compliance with one or more of these rules.

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

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

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

(22) “Endorsement” means authorization issued by the Division to an agency allowing the agency to provide program services.

(23) “Executive Director” means the person designated by a board of directors or corporate owner that is responsible for the administration of the agency’s services for individuals.

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

(25) “Guardian” means a parent for individuals under 18 years of age or a person or agency appointed and authorized by the courts to make decisions about services for an individual.

(26) “Independence” means the extent to which individuals with developmental disabilities exert control and choice over their own lives.

(27) “Individual” means an adult or a child with developmental disabilities for whom services are planned and provided.

(28) “Individual Support Plan (ISP)” means the written details of the supports, activities, and resources required for an individual to achieve personal goals. The ISP is developed at minimum annually to reflect decisions and agreements made during a person-centered process of planning and information gathering. The ISP is the individual’s Plan of Care for Medicaid purposes.

(29) “Individual Support Plan (ISP) Team” means a team composed of the individual served, agency representatives who provide service to the individual (if appropriate for in-home supports), the guardian (if any), the services coordinator, and may include family or other persons requested to develop the ISP.

(30) “Integration” means:

(a) The use by individuals with developmental disabilities of the same community resources used by and available to other persons in the community;

(b) Participation in the same community activities in which persons without a developmental disability participate, together with regular contact with persons without a developmental disability; and

(c) Individuals with developmental disabilities live in homes that are in proximity to community resources and foster contact with persons in their community.

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

(32) “Mandatory Reporter” means any public or private official who:

(a) For the purposes of these rules, is a staff or volunteer working with individuals birth to 17 years of age, and comes in contact with and has reasonable cause to believe a child has suffered abuse, or comes in contact with any person whom the official has reasonable cause to believe abused a child, regardless of whether or not the knowledge of the abuse was gained in the reporter’s official capacity. Nothing contained in ORS 40.225 to 40.295 shall affect the duty to report imposed by this section, except that a psychiatrist, psychologist, clergyman, attorney, or guardian ad litem appointed under ORS 419B.231 shall not be required to report such information communicated by a person if the communication is privileged under ORS 40.225 to 40.295.

(b) For the purposes of these rules, is a staff or volunteer working with adults eighteen years and older, and while acting in an official capacity, comes in contact with and has reasonable cause to believe an adult with developmental disabilities has suffered abuse, or comes in contact with any person whom the official has reasonable cause to believe abused an adult with developmental disabilities. Pursuant to ORS 430.765(2) psychiatrists, psychologists, clergy, and attorneys are not mandatory reporters with regard to information received through communications that are privileged under ORS 40.225 to 40.295.

(33) “Medicaid Agency Identification Number” means the Medicaid identification number assigned to an agency once the Division has determined the agency meets the qualification criteria outlined in these rules.

(34) “Medicaid Performing Provider Number” means the Medicaid identification number assigned to an agency for each licensed site or geographic location where program services are delivered once the Division has determined the agency meets the qualification criteria outlined in these rules for endorsement.

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

(36) “Ownership Interest” means, as defined in 42 CFR 455.101, the possession of equity in the capital, the stock, or the profits of the disclosing entity as determined by 42 CFR 455.102. Person with an ownership or control interest means a person or corporation that:

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

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

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

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

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

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

(37) “Person-Centered Planning” means a process, either formal or informal, for gathering and organizing information that helps an individual:

(a) Determine and describe choices about personal goals and lifestyle preferences;

(b) Design strategies and networks of support to achieve goals and a preferred lifestyle using individual strengths, relationships, and resources; and

(c) Identify, use, and strengthen naturally occurring opportunities for support at home and in the community.

(d) Methods for gathering information vary, but all are consistent with individual needs and preferences ranging from simple interviews with the individual, to informal observations in home and community settings, to formally structured meetings.

(38) “Physical Intervention” means the use of any physical action or any response to maintain the health and safety of an individual or others during a potentially dangerous situation or event.

(39) “Productivity” means:

(a) Engagement in income-producing work by an individual with developmental disabilities that is measured through improvements in income level, employment status, or job advancement; or

(b) Engagement by an individual with developmental disabilities in work contributing to a household or community.

(40) “Program Services” means, for the purpose of these rules, the services described in:

(a) OAR chapter 411, division 325, 24-hour Residential Services for Children and Adults with Developmental Disabilities;

(b) OAR chapter 411, division 335, Proctor Care Residential Services for Individuals with Developmental Disabilities;

(c) OAR chapter 411, division 328, Supported Living Services for Individuals with Developmental Disabilities; and

(d) OAR chapter 411, division 345, Employment and Alternatives to Employment Services for Individuals with Developmental Disabilities.

(41) “Protection” and “Protective Services” means necessary actions taken as soon as possible to prevent subsequent abuse or exploitation of the individual, to prevent self-destructive acts, and to safeguard an individual’s person, property, and funds.

(42) “Revocation” means the action taken by the Division to rescind an agency certificate after the Division has determined that the agency is not in compliance with these rules or the rules for the program services endorsed by the Division.

(43) “Services Coordinator” means an employee of the community developmental disability program or other agency that contracts with the county or Division, who is selected to plan, procure, coordinate, monitor Individual Support Plan services, and to act as a proponent for individuals with developmental disabilities.

(44) “Staff” means a paid employee responsible for providing services to individuals and whose wages are paid in part or in full with funds sub-contracted with the community developmental disability program or contracted directly through the Division.

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

(46) “Support” means assistance that individuals require, solely because of the affects of developmental disability, to maintain or increase independence, achieve community presence and participation, and improve productivity. Support is flexible and subject to change with time and circumstances.

(47) “Suspension” means an immediate temporary withdrawal of the approval to operate an agency after the Division determines that the agency is not in compliance with these rules or the rules for the program services endorsed by the Division.

(48) “These Rules” mean the rules in OAR chapter 411, division 323.

(49) “Unacceptable Background Check” means a check that precludes the agency from being certified for the following reasons:

(a) The agency or any person holding 5 percent or greater ownership interest in the agency has been disqualified under OAR 407-007-0275; or

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

(50) “Variance” means a temporary exception from a regulation or provision of these rules or the rules for the program services endorsed by the Division that may be granted by the Division upon written application by the agency.

(51) “Volunteer” means any person assisting in an agency without pay to support the care provided to individuals residing in the home or facility.

Stat. Auth. ORS 409.050 & 410.070

Stats. Implemented: ORS 409.050 & 410.070

Hist.: SPD 12-2011, f. & cert. ef. 7-1-11

411-323-0030

Certification and Endorsement

(1) CERTIFICATE REQUIRED.

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

(b) Certificates are not transferable or applicable to any location, home or facility, agency, management agent, or ownership other than that indicated on the application and certificate.

(c) The Division shall issue a certificate to an applicant found to be in compliance with these rules. The certificate shall be in effect for five years from the date issued unless revoked or suspended.

(2) CURRENT AGENCY CERTIFICATION/ENDORSEMENT. All agencies providing program services as of July 1, 2011 shall be issued a certificate that expires in five years unless sooner revoked or suspended that includes endorsements for the following program services:

(a) 24-hour residential as described in OAR chapter 411, division 325;

(b) Supported living as described in OAR chapter 411, division 328;

(c) Proctor care as described in OAR chapter 411, division 335; or

(d) Employment and alternatives to employment as described in OAR chapter 411, division 345.

(3) CERTIFICATION. An agency requiring certification must apply for an initial certificate and for a certificate renewal except as set forth in section (2) of this rule.

(a) INITIAL APPLICATION.

(A) The applicant must submit an application at least 30 days prior to anticipated certification. The completed application must be on a form provided by the Division and must include all information requested by the Division.

(B) The applicant requesting certification as an agency must identify the agency’s business plan. At a minimum, the agency’s business plan must include:

(i) A copy of any management agreements or contracts, relative to the operation and ownership of the agency;

(ii) A financial plan that includes:

(I) If an existing agency, the last two years audits, as directed by the Office of Management and Budget circular A-133, completed by an outside firm; or

(II) If applying as a new firm, financial statements indicating capital and the financial plan developed to assure sustainability, partnerships, loans, and any other financial assistance.

(iii) The names of those serving as the agency’s Board of Directors;

(C) The applicant must develop a plan identifying the scope of program services the applicant intends to provide and request endorsement for those program services; and

(D) Liability and operational insurance coverage as described in subsection (b) of this section.

(b) LIABILITY AND OPERATIONAL INSURANCE COVERAGE.

(A) At a minimum, the agency must demonstrate proof, at the agencies expense, and maintain in effect with respect to all occurrences taking place during the certification period:

(i) Automobile liability insurance with a combined single limit per occurrence of not less than $500,000.

(ii) Comprehensive or commercial general liability insurance covering bodily injury and property damage including personal injury coverage and contractual liability coverage for the agency. The combined single limit per occurrence may not be less than $500,000 or the equivalent. Each annual aggregate limit may not be less than $500,000 when applicable.

(B) The agency, the agency’s subcontractors if any, and all employers providing work, labor, or materials under the agency are subject employers under the Oregon Workers’ Compensation Law and must comply with ORS 656.017, which requires them to provide workers’ compensation coverage for all their subject workers including employers’ liability insurance with coverage limits of not less than $100,000 each accident. Agencies who perform the work without the assistance of labor or any employee need not obtain such coverage.

(C) The agency must name the State of Oregon, Department of Human Services, and their divisions, officers, and employees as additional insured’s on any insurance policies required by these rules with respect to agency activities being performed under the agency’s certification. Such insurance must be issued by an insurance company licensed to do business in the state of Oregon and must contain a 30 day notice of cancellation endorsement.

(D) The agency must forward to the Division certificates of insurance indicating coverage as required by this rule prior to certification.

(E) In the event of unilateral cancellation or restriction by the agency’s insurance company of any insurance coverage required by this rule, the agency must immediately notify the Division orally of the cancellation or restriction and must confirm the oral notification in writing within three days of notification by the insurance company to the agency.

(c) RENEWAL.

(A) The Division shall conduct a certification review of the agency prior to the renewal of the certificate. The review shall be conducted 30 to 120 days prior to expiration of the certificate.

(B) An application for renewal filed with the Division before the date of expiration extends the effective date of the existing certificate until the Division takes action upon the application for renewal.

(C) If the renewal application is not submitted prior to the expiration date, the agency shall be treated as a non-certified Medicaid agency subject to termination of their Medicaid agency identification number.

(D) The Division may not renew a certificate if the agency is not in substantial compliance with these rules.

(E) Renewal of endorsements for program services is contingent upon the successful renewal of the agency’s certificate.

(d) If an applicant fails to provide complete, accurate, and truthful information during the application or renewal process, the Division may delay initial certification, deny the application, or revoke or refuse to renew the application for certification.

(e) Any applicant or person with an ownership interest in an agency shall be considered responsible for acts occurring during, and relating to, the operation of the agency for purpose of certification.

(f) The Division may consider the background and operating history of the applicant and each person with an ownership interest when determining whether to issue or renew a certificate.

(g) Prior to issuance or renewal of the certificate, the applicant must demonstrate to the satisfaction of the Division that the applicant is in compliance with these rules.

(4) EXPIRATION. Unless revoked, suspended, or terminated earlier, each certificate to operate as a Medicaid agency shall expire five years following the date of issuance.

(5) TERMINATION. The certificate shall automatically terminate on the date agency operation is discontinued or if there is a change in ownership.

(6) RETURN OF CERTIFICATE. The certificate must be returned to the Division immediately upon suspension or revocation of the certificate or when agency operation is discontinued.

(7) CHANGE OF OWNERSHIP, LEGAL ENTITY, LEGAL STATUS, OR MANAGEMENT CORPORATION.

(a) The agency must notify the Division in writing of any pending change in the agency’s ownership or legal entity, legal status, or management corporation.

(b) A new certificate is required upon change in an agency’s ownership or legal entity, legal status, or management corporation. The agency must submit a certificate application at least 30 days prior to change in ownership or legal entity, legal status, or management corporation.

(8) ENDORSEMENT.

(a) To provide program services, an agency must have:

(A) A certificate to provide Medicaid services in the state of Oregon;

(B) A Medicaid agency identification number;

(C) Approved endorsement for the program services; and

(D) A Medicaid performing provider number for each licensed site or geographic location where direct services shall be delivered.

(b) The applicant must comply with the corresponding program services rules for the Division to endorse the program services.

(9) CONDITIONS.

(a) The Division may attach conditions to a certificate upon a finding that:

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

(B) A threat to the health, safety, and welfare of an individual exists;

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

(D) The agency is not being operated in compliance with these rules.

(b) Conditions that the Division may impose on a certificate include:

(A) Restricting the total number of individuals that may be served;

(B) Restricting the number and support level of individuals allowed within program services based upon the capacity of the agency and staff to meet the health and safety needs of all individuals;

(C) Reclassifying the level of individuals that may be served;

(D) Requiring additional staff or staff qualifications;

(E) Requiring additional training;

(F) Requiring additional documentation; or

(G) Restricting admissions.

(c) The Division shall notify the agency in writing of any conditions imposed and the reason for the conditions. The agency shall be given an opportunity to request a hearing as described in section (13) of this rule.

(d) Conditions may be imposed for the extent of the certification period or limited to some other shorter period of time. If the condition corresponds to the certifying period, the reasons for the condition shall be considered at the time of renewal to determine if the conditions are still appropriate. Conditions take effect immediately upon issuance of the notice, or at such later date as indicated on the notice, and shall continue until the expiration date of the condition indicated on the notice.

(10) CERTIFICATE DENIAL, SUSPENSION, REVOCATION, OR REFUSAL TO RENEW. The Division may deny, revoke, or refuse to renew a certificate when the Division finds the agency, or any person holding 5 percent or greater ownership interest in the agency:

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

(b) Has demonstrated a substantial failure to comply with these rules such that the health, safety, or welfare of individuals is jeopardized;

(c) Has been convicted of any crime that would have resulted in an unacceptable background check upon hiring or authorization of service;

(d) Has been convicted of a misdemeanor associated with the operation of an agency or program services;

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

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

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

(11) NOTICE OF CERTIFICATE DENIAL, REVOCATION, OR REFUSAL TO RENEW. Following a Division finding that there is a substantial failure to comply with these rules such that the health, safety, or welfare of individuals is jeopardized, or that one or more of the events listed in section (10) of this rule has occurred, the Division may issue a notice of certificate revocation, denial, or refusal to renew.

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

(13) HEARING. An applicant for a certificate or a certificate holder, as applicable, may request a contested case hearing in accordance with ORS chapter 183 and this rule upon written notice from the Division of imposition of conditions, denial or refusal to renew a certificate, or the suspension or revocation of the certificate.

(a) DENIAL. The applicant must request a hearing within 60 days of receipt of the Division’s written notice of denial.

(b) REFUSAL TO RENEW. The certificate holder must request a hearing within 60 days of receipt of the Division’s written notice of refusal to renew.

(c) SUSPENSION, REVOCATION, AND CERTIFICATE CONDITIONS. Notwithstanding subsection (d) below, the certificate holder must request a hearing within 21 days of receipt of the Division’s written notice of suspension, revocation, or certificate conditions.

(d) ADMINISTRATIVE REVIEW. In the case of a notice of suspension or imposition of conditions where a condition is to be effective prior to a hearing, the certificate holder, in addition to the right to a contested case hearing, may request an administrative review by the Division’s Administrator or designee.

(A) The request for administrative review must be received by the Division within 10 days from the date of the Division’s notice of suspension or imposition of conditions. The certificate holder may submit, along with the request for administrative review, any additional written materials the certificate holder wishes to have considered during the administrative review.

(B) The Division shall conduct the administrative review and issue a decision within 10 days from the date of receipt of the request for administrative review, or by a later date as agreed to by a certificate holder.

(C) If the decision of the Division is to affirm the suspension or condition, the certificate holder may appeal the decision to a contested case hearing as long as the request for a contested case hearing was received by the Division within 21 days of the original written notice of suspension or imposition of conditions.

(e) INFORMAL CONFERENCE. After the Division has received a request for hearing, the Division shall offer the applicant or certificate holder an opportunity for an informal conference unless an administrative review has been completed as described in subsection (d) of this section.

Stat. Auth. ORS 409.050 & 410.070

Stats. Implemented: ORS 409.050 & 410.070

Hist.: SPD 12-2011, f. & cert. ef. 7-1-11

411-323-0040

Inspections and Investigations

(1) Entities certified under these rules must allow the following types of investigations and inspections:

(a) Quality assurance and certificate renewal;

(b) Complaint investigations; and

(c) Abuse investigations.

(2) The Department, the Department’s designee, or proper authority shall perform all inspections and investigations.

(3) Any inspection or investigation may be unannounced.

(4) All documentation and written reports required by these rules must be:

(a) Open to inspection and investigation by the Department, the Department’s designee, or proper authority; and

(b) Submitted to or be made available for review by the Department within the time allotted.

(5) When abuse is alleged or death of an individual has occurred and a law enforcement agency, the Department, or the Department’s designee has determined to initiate an investigation, the agency may not conduct an internal investigation without prior authorization from the Department. For the purposes of this section, an “internal investigation” is defined as:

(a) Conducting interviews of the alleged victim, witness, the accused person, or any other person who may have knowledge of the facts of the abuse allegation or related circumstances;

(b) Reviewing evidence relevant to the abuse allegation, other than the initial report; or

(c) Any other actions beyond the initial actions of determining:

(A) If there is reasonable cause to believe that abuse has occurred;

(B) If the alleged victim is in danger or in need of immediate protective services;

(C) If there is reason to believe that a crime has been committed; or

(D) What, if any, immediate personnel actions must be taken to assure individual safety.

(6) The Department or the Department’s designee shall conduct abuse investigations as described in OAR 407-045-0250 to 407-045-0360 and shall complete an abuse investigation and protective services report according to OAR 407-045-0320.

(7) Upon completion of the abuse investigation by the Department, the Department’s designee, or a law enforcement agency, the agency may conduct an investigation without further Department approval to determine if any personnel actions are necessary.

(8) Upon completion of the abuse investigation and protective services report, according to OAR 407-045-0330, the sections of the report that are public records and not exempt from disclosure under the public records law shall be provided to the appropriate agency. The agency must implement the actions necessary within the deadlines listed, to prevent further abuse as stated in the report.

(9) The agency must submit a plan of correction to the Division for any noncompliance found during an inspection under this rule.

Stat. Auth. ORS 409.050 & 410.070

Stats. Implemented: ORS 409.050 & 410.070

Hist.: SPD 12-2011, f. & cert. ef. 7-1-11

411-323-0050

Agency Management and Personnel Practices

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

(2) BASIC PERSONNEL POLICIES AND PROCEDURES. The agency must have in place and implement personnel policies and procedures that address suspension, increased supervision, or other appropriate disciplinary employment procedures when a staff member has been identified as an accused person in an abuse investigation or when the allegation of abuse has been substantiated.

(3) PROHIBITION AGAINST RETALIATION. The agency or service provider may not retaliate against any staff that reports in good faith suspected abuse or retaliate against the child or adult with respect to any report. An accused person may not self-report solely for the purpose of claiming retaliation.

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

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

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

(B) Discharge from or termination of employment;

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

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

(4) MANDATORY ABUSE REPORTING PERSONNEL POLICIES AND PROCEDURES. Any employee of an agency is a mandatory reporter. The agency must notify all employees of mandatory reporting status at least annually on forms provided by the Department. The agency must provide all employees with a Department produced card regarding abuse reporting status and abuse reporting. For reporting purposes the following shall apply:

(a) Agencies providing services to adults must report to the CDDP where the adult resides and if there is reason to believe a crime has been committed a report must also be made to law enforcement.

(b) Agencies providing services to children must report to the Department or law enforcement in the county where the child resides.

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

(6) BACKGROUND RECORDS CHECKS. Any employee, volunteer, respite provider, advisor, skill trainer, or any subject individual defined by OAR 407-007-0200 to 407-007-0370, who has or will have contact with an individual in services must have an approved background check in accordance with OAR 407-007-0200 to 407-007-0370 and under ORS 181.534.

(a) Effective July 28, 2009, the agency may not use public funds to support, in whole or in part, a person as described above in section (6) of this rule in any capacity who has been convicted of any of the disqualifying crimes listed in OAR 407-007-0275.

(b) Subsection (6)(a) of this section does not apply to agency employees who were hired prior to July 28, 2009 and remain in the current position for which the employee was hired.

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

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

(8) GENERAL STAFF QUALIFICATIONS. Any employee providing direct assistance to individuals must meet the following criteria:

(a) Be at least 18 years of age;

(b) Have approval to work based on current Department policy and procedures for background checks in OAR 407-007-0200 to 407-007-0370 and section (6) of this rule;

(c) If hired on or after July 28, 2009, not have been convicted of any of the disqualifying crimes listed in OAR 407-007-0275:

(d) Be literate and capable of understanding written and oral orders;

(e) Be able to communicate with individuals, physicians, services coordinators, and appropriate others;

(f) Be able to respond to emergency situations at all times; and

(g) Have clear job responsibilities as described in a current signed and dated job description.

(9) PERSONNEL FILES AND QUALIFICATION RECORDS. The agency must maintain up-to-date written job descriptions for all employees as well as a file available to the Department or the Department’s designee for inspection that includes written documentation of the following for each employee:

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

(b) Written documentation by the Department of an approved background check as defined in OAR 407-007-0210;

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

(d) Written documentation of any founded report of child abuse or substantiated abuse; and

(e) Written documentation of required training and hours of training received.

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

Stat. Auth. ORS 409.050 & 410.070

Stats. Implemented: ORS 409.050 & 410.070

Hist.: SPD 12-2011, f. & cert. ef. 7-1-11

411-323-0060

Policies and Procedures

(1) INDIVIDUAL RIGHTS. The agency must have and implement written policies and procedures that protect an individual’s rights that address the following:

(a) ABUSE. Individuals as defined in OAR 411-323-0020 must not be abused nor shall abuse be tolerated by any employee, staff, or volunteer of the agency.

(b) PROTECTION AND WELLBEING. The agency must ensure the health and safety of individuals from abuse including the protection of individual rights, as well as, encourage and assist individuals through the ISP process to understand and exercise these rights. Except for children under the age of 18, where reasonable limitations have been placed by a parent or guardian, these rights must at a minimum provide for:

(A) Assurance that each individual has the same civil and human rights accorded to other citizens of the same age except when limited by a court order:

(B) Adequate food, housing, clothing, medical and health care, supportive services, and training;

(C) Visits with family members, guardians, friends, advocates and others of the individual’s choosing, and legal and medical professionals;

(D) Confidential communication including personal mail and telephone;

(E) Personal property and fostering of personal control and freedom regarding that property;

(F) Privacy in all matters that do not constitute a documented health and safety risk to the individual;

(G) Protection from abuse and neglect, including freedom from unauthorized training, treatment, and chemical, mechanical, or physical restraints;

(H) Freedom to choose whether or not to participate in religious activity;

(I) The opportunity to vote for individuals over the age of 18 and training in the voting process;

(J) Expression of sexuality within the framework of state and federal laws, and for adults over the age of 18, freedom to marry and to have children;

(K) Access to community resources, including recreation, agency services, employment and community inclusion services, school, educational opportunities, and health care resources;

(L) Individual choice for children and adults that allows for decision making and control of personal affairs appropriate to age;

(M) Services that promote independence, dignity, and self-esteem and reflect the age and preferences of the individual;

(N) Individual choice for adults to consent to or refuse treatment, unless incapable, and then an alternative decision maker must be allowed to consent or refuse for the individual. For children, the child’s parent or guardian must be allowed to consent to or refuse treatment except as described in ORS 109.610 or limited by court order;

(O) Individual choice to participate in community activities; and

(P) Access to a free and appropriate education for children and individuals under the age of 21 including a procedure for school attendance or refusal to attend.

(2) HEALTH. The agency must have and implement policies and procedures that maintain and protect the health of individuals.

(3) INDIVIDUAL AND FAMILY INVOLVEMENT. The agency must have and implement a written policy that addresses:

(a) Opportunities for the individual to participate in decisions regarding the operations of the agency;

(b) Opportunities for families, guardians, legal representatives, and significant others of the individuals served by the agency to interact; and

(c) Opportunities for individuals, families, guardians, legal representatives, and significant others to participate on the Board or on committees or to review policies of the agency that directly affect the individuals served by the agency.

(4) CONFIDENTIALITY OF RECORDS. The agency must have and implement written policies and procedures that ensure all individuals’ records are confidential except as otherwise provided by applicable state and federal rule or laws.

(a) For the purpose of disclosure from individual medical records under this rule, an agency is considered a “public provider” as defined in ORS 179.505.

(b) For the purpose of disclosure from non-medical individual records, all or portions of the information contained in these records may be exempt from public inspection under the personal privacy information exemption to the public records law set forth in ORS 192.502.

(5) BEHAVIOR SUPPORT. The agency must have and implement a written policy for behavior support that utilizes individualized positive behavior support techniques and prohibits abusive practices.

(6) PHYSICAL INTERVENTION. The agency must have and implement written policies and procedures for physical interventions that address the following:

(a) Circumstances allowing the use of physical intervention. The agency must only employ physical intervention techniques that are included in the OIS curriculum approved by the Division or the OIS Steering Committee.

(b) Physical intervention techniques must only be applied:

(A) When the health and safety of the individual and others are at risk, and the ISP team has authorized the procedures in a documented ISP team decision that is included in the ISP and uses procedures that are intended to lead to less restrictive intervention strategies; or

(B) As an emergency measure, if absolutely necessary to protect the individual or others from immediate injury; or

(C) As a health related protection ordered by a physician, if absolutely necessary during the conduct of a specific medical or surgical procedure, or for the individual’s protection during the time that a medical condition exists.

(7) HANDLING AND MANAGING INDIVIDUALS’ MONEY. The agency must have written policies and procedures for the handling and management of individuals’ money. Such policies and procedures must provide for:

(a) The individual to manage his or her own funds unless the ISP documents and justifies limitations to self-management;

(b) Safeguarding of an individual’s funds;

(c) Individuals receiving and spending their money; and

(d) Taking into account the individual’s interests and preferences.

(8) INFORMAL COMPLAINTS AND GRIEVANCES. The agency must develop and implement written policies and procedures regarding individual informal complaints and formal grievances. These policies and procedures must at minimum address:

(a) INFORMAL COMPLAINT RESOLUTION. An individual or someone acting on behalf of the individual must be given the opportunity to informally discuss and resolve any allegation that an agency has taken action which is contrary to law, rule, or policy and that does not meet the criteria for an abuse investigation. Choosing this opportunity does not preclude the individual or someone acting on behalf of the individual to pursue resolution through formal grievance processes.

(b) FORMAL GRIEVANCE AND GRIEVANCE LOG.

(A) The agency’s formal grievance policies and procedures must include:

(i) A description of how the agency receives and documents grievances from individuals and others acting on the individuals’ behalf; and

(ii) Investigation of the facts supporting or disproving the grievance.

(B) The Executive Director or designee must provide a formal written response to the grievant within 15 days of receipt of the grievance, unless the grievance is informally resolved to the grievant’s satisfaction prior to that time. The formal written response of the Executive Director or designee must clearly inform the grievant of the availability of assistance in appealing the grievance and how to access that assistance.

(C) The Executive Director or designee must submit to the Department for review grievances that have not been resolved to the satisfaction of the grievant, where the Executive Director or designee believes that the grievant may not have the capability to appeal an adverse decision to the Division.

(D) Documentation of each grievance and its resolution must be filed or noted in the complainant’s record. In addition, the agency must maintain a grievance log, which must, at a minimum, identify the person making the complaint, the date of the grievance, the nature of the grievance, the resolution, and the date of the resolution.

(c) If a grievance is associated in any way with abuse, the recipient of the grievance must immediately report the issue to the appropriate authority, the CDDP, the Department, and notify the Executive Director or designee.

(9) AGENCY DOCUMENTATION REQUIREMENTS. The agency must have and implement policies and procedures that address agency documentation requirements. Documentation must:

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

(b) Be accurate and contain no willful falsifications;

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

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

Stat. Auth. ORS 409.050 & 410.070

Stats. Implemented: ORS 409.050 & 410.070

Hist.: SPD 12-2011, f. & cert. ef. 7-1-11

411-323-0070

Variances

(1) The Division may grant a variance to these rules based upon a demonstration by the agency that an alternative method or different approach provides equal or greater agency effectiveness and does not adversely impact the welfare, health, safety, or rights of individuals.

(2) The agency requesting a variance must submit, in writing, an application to the Division that contains the following:

(a) The section of the rule from which the variance is sought;

(b) The reason for the proposed variance; and

(c) The alternative practice, service, method, concept, or procedure proposed.

(3) The Division shall approve or deny the request for a variance.

(4) The Division’s decision shall be sent to the agency and to all relevant Department programs or offices within 30 calendar days of the receipt of the variance request.

(5) The agency may appeal the denial of a variance request by sending a written request for review to the Administrator, whose decision is final.

(6) The Division shall determine the duration of the variance.

(7) The agency may implement a variance only after written approval from the Division.

Stat. Auth. ORS 409.050 & 410.070

Stats. Implemented: ORS 409.050 & 410.070

Hist.: SPD 12-2011, f. & cert. ef. 7-1-11

 

Rule Caption: Certification change for supported living and proctor care residential services.

Adm. Order No.: SPD 13-2011

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

Certified to be Effective: 7-1-11

Notice Publication Date: 6-1-2011

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

Rules Repealed: 411-328-0570(T), 411-328-0810(T), 411-335-0030(T), 411-335-0050(T), 411-335-0380(T)

Subject: The Department of Human Services is permanently changing the certification period to five years for:

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

      • OAR chapter 411, division 335, Proctor Care Residential Services.

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

411-328-0570

Issuance of Certificate

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

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

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

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

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

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

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

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

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 5-1992, f. 8-21-92, cert. ef. 8-24-92; MHD 3-1997, f. & cert. ef. 2-7-97; Renumbered from 309-041-0570 by SPD 17-2009, f. & cert. ef. 12-9-09; SPD 5-2011(Temp), f. & cert. ef. 2-7-11 thru 8-1-11; SPD 13-2011, f. & cert. ef. 7-1-11

411-328-0810

Program Management

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

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

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

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

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

(B) Discharge from or termination of employment;

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

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

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

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

(b) Be accurate and contain no willful falsifications;

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

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

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

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 5-1992, f. 8-21-92, cert. ef. 8-24-92; MHD 3-1997, f. & cert. ef. 2-7-97; Renumbered from 309-041-0810 by SPD 17-2009, f. & cert. ef. 12-9-09; SPD 5-2011(Temp), f. & cert. ef. 2-7-11 thru 8-1-11; SPD 13-2011, f. & cert. ef. 7-1-11

411-335-0030

Agency Management and Personnel Practices

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

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

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

(4) BACKGROUND CHECKS. Any employee, volunteer, proctor provider, respite provider, crisis provider, advisor, skill trainer, or any subject individual defined by OAR 407-007-0200 to 407-007-0370, who has or will have contact with a resident of the agency, must have an approved background check in accordance with OAR 407-007-0200 to 407-007-0370 and under ORS 181.534.

(a) Effective July 28, 2009, the agency may not use public funds to support, in whole or in part, a person as described in section (4) of this rule in any capacity who has been convicted of any of the disqualifying crimes listed in OAR 407-007-0275.

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

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

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

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

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

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

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

(B) Discharge from or termination of employment;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(c) Receive mandatory reporter training.

(d) Receive confidentiality training.

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

(f) Be cleared by the Department’s background check requirements In OAR 407-007-0200 to 407-007-0370.

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

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

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

(a) PROCTOR PROVIDERS:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(c) RESPITE PROVIDERS.

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

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

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

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

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

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

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

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

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

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

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

(d) ALTERNATE CAREGIVERS.

(A) DAY CARE, CAMP:

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

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

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

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

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

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

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

(a) Crisis service providers must:

(A) Be at least 18 years of age.

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

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

(b) The agency must:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) Be accurate and contain no willful falsification.

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

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

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

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

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

Stats. Implemented: ORS 430.021 & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 2-2010(Temp), f. & cert. ef. 3-18-10 thru 6-30-10; SPD 5-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 5-2011(Temp), f. & cert. ef. 2-7-11 thru 8-1-11; SPD 13-2011, f. & cert. ef. 7-1-11

411-335-0050

Issuance of Proctor Care Agency Certificate

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

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

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

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

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

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

Stats. Implemented: ORS 430.021 & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 5-2011(Temp), f. & cert. ef. 2-7-11 thru 8-1-11; SPD 13-2011, f. & cert. ef. 7-1-11

411-335-0380

Conditions

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

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

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

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

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

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

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

(a) Restricting the total number of individuals;

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

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

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

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

(f) Requiring additional documentation; or

(g) Restriction of admissions.

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

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

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

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

Stats. Implemented: ORS 430.021 & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 5-2011(Temp), f. & cert. ef. 2-7-11 thru 8-1-11; SPD 13-2011, f. & cert. ef. 7-1-11

 

Rule Caption: Employment and Alternatives to Employment Services for Individuals with Developmental Disabilities.

Adm. Order No.: SPD 14-2011

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

Certified to be Effective: 7-1-11

Notice Publication Date: 6-1-2011

Rules Adopted: 411-345-0025, 411-345-0095

Rules Amended: 411-345-0010, 411-345-0020, 411-345-0030, 411-345-0050, 411-345-0080, 411-345-0090, 411-345-0100, 411-345-0110, 411-345-0130, 411-345-0140, 411-345-0160, 411-345-0170, 411-345-0180, 411-345-0190, 411-345-0200, 411-345-0230, 411-345-0240, 411-345-0250, 411-345-0260, 411-345-0270

Rules Repealed: 411-345-0040, 411-345-0060, 411-345-0070, 411-345-0120, 411-345-0150, 411-345-0210, 411-345-0220, 411-345-0280, 411-345-0290, 411-345-0300, 411-345-0030(T), 411-345-0100(T), 411-345-0260(T)

Subject: The Department of Human Services is permanently updating the employment and alternatives to employment services for individuals with developmental disabilities rules in OAR chapter 411, division 345 to clarify service requirements, eliminate outdated and unnecessary requirements, and change the recertification period to five years in response to legislatively required budget reductions.

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

411-345-0010

Statement of Purpose

These rules prescribe standards for providing employment and alternatives to employment services for individuals with developmental disabilities receiving residential services. These rules also prescribe the standards and procedures by which the Division certifies service providers to provide employment and alternatives to employment services.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0000, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0020

Definitions

As used in these rules, the following definitions apply:

(1) “Abuse” means abuse of an adult as defined in OAR 407-045-0260.

(2) “Abuse Investigation and Protective Services” means reporting and investigation activities as required by OAR 407-045-0300 and any subsequent services or supports necessary to prevent further abuse as required in OAR 407-045-0310.

(3) “Administration of Medication” means the act of placing a medication in or on an individual’s body by a staff member who is responsible for the individual’s care.

(4) “Administrator” means the Administrators of the Department of Human Services, Seniors and People with Disabilities Division, or that person’s designee.

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

(6) “Aid to Physical Functioning” means any special equipment prescribed for an individual by a physician, therapist, or dietician that maintains or enhances the individual’s physical functioning.

(7) “Alternatives to Employment Services” mean any services, conducted away from an individual’s residence that addresses the academic, recreational, social, or therapeutic needs of the individuals for whom it serves.

(8) “Annual Individual Support Plan (ISP) Meeting” means an annual meeting, facilitated by a services coordinator of the community developmental disability program and attended by the ISP team members and other persons, as appropriate. The purpose of the meeting is to determine needs, coordinate services and training, and develop an ISP.

(9) “Certificate” means a document issued by the Department to a provider of employment and alternatives to employment services that certifies that the service provider is eligible to receive state funds for the provision of these services.

(10) “Community Based Service” means any service or program providing opportunities for the majority of an individual’s time to be spent in community participation or integration.

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

(12) “Complaint Investigation” means an investigation of any complaint that has been made to a proper authority that is not covered by an abuse investigation.

(13) “Controlled Substance” means any drug classified as Schedules 1 to 5 under the Federal Controlled Substance Act.

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

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

(16) “Director” means the person responsible for administration of the employment and alternatives to employment services and provision of support services for individuals.

(17) “Discovery” is a focused time-limited service engaging a participant in identifying their strengths, needs, and interests to prepare for integrated employment.

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

(19) “Employment Services” means any service that has as its primary goal the employment of individuals, including job assessment, job development, training, and ongoing supports.

(20) “Entry” means admission to a Department-funded developmental disability service.

(21) “Exit” means either termination from a Department-funded developmental disability service provider or transfer from one Department-funded program or service to another.

(22) “Facility Based Service” means any service or program operated by a service provider that occurs in a location supporting more than eight individuals as a group.

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

(24) “Important for an Individual” means the areas of life that relate to being healthy, safe, and a valued member of the community.

(25) “Important to an Individual” means the individual’s perspective on the people, places, and things they like, personal values, spirituality, and a sense of self. This is learned by listening to what is being said by words or actions. When there is a conflict between words and actions, actions are considered first.

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

(27) “Independence” means the extent to which individuals exert control and choice over their own lives.

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

(29) “Individual Support Plan (ISP) Action Plan” means the written documentation of the ISP team’s commitment in supporting an individual to resolve or improve particular aspects of their life. An ISP Action Plan identifies the necessary measurable steps to be taken, who is accountable for assuring implementation, and timelines for completion.

(30) “Individual Support Plan (ISP) Team” means a team composed of the individual served, agency representatives who provide service to the individual (as appropriate), the guardian (if any), the services coordinator, and family or other persons requested to develop the ISP.

(31) “Integration” means the use by individuals of the same community resources used by and available to other persons in the community, including participation in community activities and having contact with persons in their community.

(32) “Job Development” means assistance and support for individuals to pursue employment and obtain job placement.

(33) “Mandatory Reporter” means any public or private official who, while acting in an official capacity, comes in contact with and has reasonable cause to believe an adult with developmental disabilities has suffered abuse, or comes in contact with any person whom the official has reasonable cause to believe abused an adult with developmental disabilities. Pursuant to ORS 430.765(2) psychiatrists, psychologists, clergy, and attorneys are not mandatory reporters with regard to information received through communications that are privileged under ORS 40.225 to 40.295.

(34) “Medication” means any drug, chemical, compound, suspension, or preparation in suitable form for use as a curative or remedial substance taken either internally or externally by any person.

(35) “OIS” means Oregon Intervention System.

(36) “Path to Employment” means a concept that identifies an individual’s preferences in moving toward employment using principles of self-determination and a set of questions and strategies that assist the Individual Support Plan team when planning.

(37) “Person-Centered Planning” means:

(a) A process, either formal or informal, for gathering and organizing information that helps an individual:

(A) Determine and describe choices about employment or personal goals, activities, and lifestyle preferences; and

(B) Identify, use, and strengthen naturally occurring opportunities for support in the community.

(b) The methods for gathering information vary, but all are consistent with individual needs and preferences.

(38) “Person-Centered Process” means a practice of identifying what is important to and for an individual, and the supports necessary to address issues of health, safety, behavior, and financial support.

(39) “Physical Intervention” means the use of any physical action or any response to maintain the health and safety of an individual or others during a potentially dangerous situation or event.

(40) “Physical Restraint” means any manual physical holding of or contact with an individual that restricts the individual’s freedom of movement.

(41) “Productivity” as defined in ORS 427.005 means:

(a) Engagement in income producing work by an individual that is measured through improvements in income level, employment status, or job advancement; or

(b) Engagement by an individual in work contributing to a household or community.

(42) “Protection” means the necessary actions taken as soon as possible to prevent subsequent abuse or exploitation of the individual, to prevent self-destructive acts, and to safeguard an individual’s person, property, and funds.

(43) “Psychotropic Medication” means medication the prescribed intent of which is to affect or alter thought processes, mood, or behavior including but not limited to anti-psychotic, antidepressant, anxiolytic (anti-anxiety), and behavior medications. The classification of a medication depends upon its stated, intended effect when prescribed.

(44) “Self-Administration of Medication” means the individual manages and takes his or her own medication, identifies his or her own medication and the times and methods of administration, places the medication internally in or externally on his or her own body without staff assistance upon the written order of a physician, and safely maintains the medication without supervision.

(45) “Self-Determination” means for the purpose of these rules, a philosophy and process by which individuals are empowered to gain control over the selection of services that meet their needs. The basic principles of self-determination are:

(a) Freedom. The ability for an individual, together with freely chosen family, friends, and professionals, to plan for employment beyond the parameters of a predefined program;

(b) Authority. The ability for an individual, together with the Individual Support Plan team, to declare a chosen employment path and to plan supports accordingly.

(c) Autonomy. Planning for and accessing resources that support an individual to seek employment; and

(d) Responsibility. The acceptance of a valued role in an individual’s community through employment, organizational affiliations, personal development, and general caring for others in the community, as well as accountability for spending public dollars in ways that are life-enhancing for individuals.

(46) “Service Provider” or “Service” means a public or private community agency or organization that provides recognized developmental disability services and is approved by the Division or other appropriate agency, to provide services under these rules.

(47) “Services Coordinator” means an employee of the community developmental disability program or other agency that contracts with the county or Department, who is selected to plan, procure, coordinate, and monitor Individual Support Plan services and to act as a proponent for individuals.

(48) “Staff” means a paid employee responsible for providing services to individuals and whose wages are paid in part or in full with funds contracted with the community developmental disability program or contracted directly through the Department.

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

(50) “Support” means assistance that individuals require, solely because of the affects of developmental disability, to maintain or increase independence, achieve community presence and participation, and improve productivity. Support is subject to change with time and circumstances.

(51) “Supported Employment” means the provision of situational assessment, job development, job training, and ongoing support necessary to place, maintain, or change the employment of an individual in an integrated work setting. The individual is compensated in accordance with the Fair Labor Standards Act.

(52) “These Rules” mean the rules in OAR chapter 411, division 345.

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

(54) “Unacceptable Background Check” means a background check as defined in OAR 407-007-0210 that precludes the service from being certified for the following reasons:

(a) The service or any person holding 5 percent or greater ownership interest in the agency has been disqualified under OAR 407-007-0275; or

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

(55) “Unit of Service” means the equivalent of an individual receiving services 25 hours per week, 52 weeks per year minus the following:

(a) Personal, vacation, or sick leave allowed by the service provider or employer;

(b) Holidays as recognized by the state of Oregon; and

(c) Up to 4 days for all-staff in-service training.

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

(57) “Volunteer” means any person providing services without pay to individuals receiving employment or alternatives to employment services.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 26-1982(Temp), f. & ef. 12-3-82; MHD 9-1983, f. & ef. 6-7-83; MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0005, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 12-2010, f. 6-30-10, cert. ef. 7-1-10; SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0025

Services Provided

(1) Employment and alternatives to employment services must be designed to increase an individual’s independence, integration, and productivity and offered to eligible adult individuals in accordance with OAR 411-345-0140.

(2) Employment is the preferred activity for individuals receiving services. Individuals must be provided opportunity to move forward on a path to employment.

(3) All services, with the exception of individual employment supports, must be provided in a non-residential setting. Employment and alternatives to employment businesses operating as a service provider from a facility base must provide training and skill-building for all individuals served.

(4) Service providers operating under these rules must provide one or more of the following services:

(a) Individual employment supports provided to assist an individual to:

(A) Maintain employment in the community; or

(B) Pursue self-employment.

(b) Support and supervision of two to eight individuals working in the community as a crew, enclave, or small business unit;

(c) Job development, when not available under the Rehabilitation Act of 1973 or P.L. 94-142 (Individuals with Disabilities Education Act);

(d) Facility-based sheltered employment programs providing training and skill development for individuals. Group employment of nine or more individuals in a crew or enclave is considered sheltered employment;

(e) Activities preparing individuals for employment, including discovery activities, volunteer positions, and work-experience positions; or

(f) Alternatives to employment services providing support for individuals to participate in:

(A) Community inclusion activities based upon individuals’ interests;

(B) Volunteer positions; or

(C) Other non-paid activities.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630, & 430.670

Hist.: SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0030

Certification

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

(2) Each certificate is issued only for the service and persons or governmental units named in the application. No certificate is transferable or assignable to any location, service, facility, agency, management agent, or ownership other than that indicated on the application and certificate.

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

(4) As part of the certificate renewal process the service provider must conduct a self-assessment based upon the requirements of these rules. The service provider must:

(a) Document the self-assessment on forms provided by the Division;

(b) Develop and implement a plan of improvement based upon the findings of the self-assessment; and

(c) Submit these documents to the local CDDP with a copy to the Division.

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

(6) APPLICATION FOR INITIAL CERTIFICATE AND CERTIFICATE RENEWAL. The application must be on a form provided by the Division and must include all information requested by the Division.

(a) The applicant’s initial application must identify the number and types of units of service that shall be provided.

(b) To renew certification, the service provider must make application at least 30 days but not more than 120 days prior to the expiration date of the existing certificate. On renewal, no increase in the number of units of service shall be certified unless specifically approved by the Division.

(c) Filing of an application for renewal at least 30 days but not more than 120 days prior to the expiration date of the existing certificate extends the effective date until the Division or its designee takes action upon such application.

(d) Failure to disclose requested information on the application, or provision of incomplete or incorrect information on the application, may result in denial, revocation, or refusal to renew the certificate

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

(f) Separate certificates are required when the service provider delivers services in multiple counties to the extent that contracts with each different county are required.

(7) EXPIRATION. Unless revoked or terminated earlier, each certificate to operate shall expire on the expiration date specified on the certificate.

(8) TERMINATION OF OPERATION. If the service provider discontinues operation of the certified service, the certificate terminates automatically.

(9) RETURN OF CERTIFICATE. Each certificate in the possession of the service must be returned to the Division immediately upon suspension or revocation of the certificate, or when operation is discontinued by the holder of the certificate.

(10) CHANGE OF OWNERSHIP, LEGAL ENTITY, LEGAL STATUS, OR MANAGEMENT CORPORATION.

(a) The service provider must notify the Division in writing of any pending change in the service provider’s ownership or legal entity, legal status, or management corporation.

(b) A new certificate is required upon change in a service provider’s ownership or legal entity, legal status, or management corporation. The service provider must submit a certificate application at least 30 days prior to change in ownership or legal entity, legal status, or management corporation.

(11) CERTIFICATE DENIAL, SUSPENSION, REVOCATION, OR REFUSAL TO RENEW. The Division may deny, revoke, or refuse to renew a certificate when the Division finds the service, or any person holding 5 percent or greater ownership interest in the service:

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

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

(c) Has demonstrated a failure to comply with applicable laws relating to safety from fire;

(d) Has been convicted of any crime that would have resulted in an unacceptable background check as defined in OAR 407-007-0210 upon hiring or authorization of service;

(e) Has been convicted of a misdemeanor associated with the operation of employment and alternatives to employment services;

(f) Falsifies information required by the Division to be maintained or submitted regarding care of individuals, employment and alternatives to employment services finances, or individuals’ funds; or

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

(12) NOTICE OF CERTIFICATE DENIAL, REVOCATION, OR REFUSAL TO RENEW. Following a Division finding that there is a substantial failure to comply with these rules such that the health, safety, or welfare of individuals is jeopardized or that one or more of the events listed in section (11) of this rule has occurred, the Division may issue a notice of certificate revocation, denial, or refusal to renew.

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

(14) HEARING. An applicant for a certificate or a certificate holder may request a hearing pursuant to the contested case provisions of ORS chapter 183 upon written notice from the Division of denial, suspension, revocation, or refusal to renew a certificate.

(a) The Division shall provide the certificate holder an opportunity for an informal conference within 10 calendar days from the date of the notice of denial, suspension, revocation, or refusal to renew issued pursuant to this rule.

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

(c) The issue at a hearing on certification denial, revocation, or refusal to renew a certificate is limited to whether the service was or is in compliance at the end of the 30-calendar days following written notice of non-compliance.

(d) In the event of a suspension of a certificate pursuant to section (13) of this rule and during the first 30 days after the suspension of a certificate, the certified service provider may submit a written request to the Division for an administrative review. The Division shall conduct the administrative review within 10 days after receipt of the request for an administrative review. Any administrative review requested after the end of the 30-day period following certificate suspension shall be treated as a request for hearing under this section of the rule.

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

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 26-1982(Temp), f. & ef. 12-3-82; MHD 9-1983, f. & ef. 6-7-83; MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0010, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 5-2011(Temp), f. & cert. ef. 2-7-11 thru 8-1-11; SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0050

Reciprocal Compliance

(1) The Division may accept compliance with other formally recognized standards as assurance of compliance with all or part of these rules.

(2) An employment or alternative to employment service seeking a certificate based on compliance with other standards must provide the Division with a copy of the complete detailed report from the reviewing group. Where there are differences between other standards and Oregon Administrative Rules, the Oregon Administrative Rules shall take precedence.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 13-1990, f. & cert. ef. 12-7-90; Renumbered from 309-047-0018, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0080

Inspections and Investigations

(1) All services covered by these rules must allow the following types of investigations and inspections:

(a) Quality assurance, certificate renewal, and on-site inspections;

(b) Complaint investigations; and

(c) Abuse investigations.

(2) The Department, the Department’s designee, or proper authority shall perform all inspections and investigations.

(3) Any inspection or investigation may be unannounced.

(4) All documentation and written reports required by this rule must be:

(a) Open to inspection and investigation by the Department, the Department’s designee, or proper authority; and

(b) Submitted to or made available for review by the Department within the time allotted.

(5) When abuse is alleged or death of an individual has occurred and a law enforcement agency, or the Department or the Department’s designee, has determined to initiate an investigation, the service provider may not conduct an internal investigation without prior authorization from the Department. For the purposes of this section, an internal investigation is defined as:

(a) Conducting interviews of the alleged victim, witness, the accused person, or any other persons who may have knowledge of the facts of the abuse allegation or related circumstances;

(b) Reviewing evidence relevant to the abuse allegation, other than the initial report; or

(c) Any other actions beyond the initial actions of determining:

(A) If there is reasonable cause to believe that abuse has occurred;

(B) If the alleged victim is in danger or in need of immediate protective services;

(C) If there is reason to believe that a crime has been committed; or

(D) What, if any, immediate personnel actions must be taken to assure individual safety.

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

(7) The Department or the Department’s designee shall conduct investigations as described in OAR 407-045-0250 to OAR 407-045-0360.

(8) When an abuse investigation has been completed, the CDDP must provide notice of the outcome of the Abuse Investigation and Protective Services Report according to OAR 407-045-0320.

(9) Upon completion of the abuse investigation by the Department, the Department’s designee, or a law enforcement agency, the service provider may conduct an investigation to determine if any other personnel actions are necessary.

(10) Upon completion of the Abuse Investigation and Protective Services Report, according to OAR 407-045-0330 the sections of the report that are public records and not exempt from disclosure under the public records law must be provided to the appropriate service provider. The service provider must implement the actions necessary within the deadlines listed, to prevent further abuse as stated in the report.

(11) A plan of improvement must be submitted to the CDDP and the Division for any noncompliance found during an inspection under this rule.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 26-1982(Temp), f. & ef. 12-3-82; MHD 9-1983, f. & ef. 6-7-83; MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0035, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 12-2010, f. 6-30-10, cert. ef. 7-1-10; SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0090

Variances

(1) The Division may grant a variance to these rules based upon a demonstration by the service provider that an alternative method or different approach provides equal or greater program effectiveness and does not adversely impact the welfare, health, safety, or rights of individuals.

(2) The service provider requesting a variance must submit, in writing, an application to the CDDP that contains the following:

(a) The section of the rule from which the variance is sought;

(b) The reason for the proposed variance;

(c) The alternative practice, service, method, concept, or procedure proposed; and

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought.

(3) The CDDP must forward signed documentation to the Division within 30 days of the receipt of the request for variance indicating the CDDP’s position on the proposed variance.

(4) The Administrator for the Division shall approve or deny the request for a variance.

(5) The Division’s decision shall be sent to the service provider and the CDDP and to all relevant Department programs or offices within 30 calendar days of the receipt of the variance request.

(6) The service provider may appeal the denial of a variance request by sending a written request to the Administrator, whose decision is final.

(7) The Division shall determine the duration of the variance.

(8) The service provider may implement a variance only after written approval from the Division.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 26-1982(Temp), f. & ef. 12-3-82; MHD 9-1983, f. & ef. 6-7-83; MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0040, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0095

Provider Service Payment Limitation

(1) Effective July 1, 2011, monthly service rates, as authorized in Division payment and reporting systems for individuals enrolled in employment and alternatives to employment services and paid to certified service providers for delivering employment or alternatives to employment services as described in these rules, shall be limited to a maximum of $1,728 per month.

(2) An exception to the provider service payment limitation, only for costs of directly supporting the individual served, may be granted by the Division if documentation supports the following criteria are met:

(a) The individual has a current behavior or health condition, as well as a documented history of such, posing a risk to the individual’s health and welfare or that of others; AND

(b) The individual has a current service rate and ISP requiring at least 1:1 staffing for purposes of meeting behavioral or medical support needs; AND

(c) Steps have been taken to address the existing behavior or condition within the rate cap and there is continued risk to health and safety of self or others, regardless of setting.

(3) Special conditions shall be required in the service provider’s contract. The Division or the Division’s designee shall monitor services to assure their delivery and the continued need for additional funds.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630, & 430.670

Hist.: SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0100

Management, Personnel Practices, and Staffing

(1) INDEPENDENCE, PRODUCTIVITY, AND INTEGRATION. As stated in ORS 427.007, the service provider must have a written policy that states that each individual’s ISP is developed to meet employment and activities that address each individual’s level of independence, productivity, and integration into the local community.

(2) INDIVIDUAL AND FAMILY INVOLVEMENT. The service provider must have and implement a written policy that addresses:

(a) Opportunities for the individual to participate in decisions regarding the operations of the services;

(b) Opportunities for families, guardians, and significant others of the individuals served by the service provider to interact; or

(c) Opportunities for individuals, families, guardians, and significant others to participate on the Board or on committees of the service provider or to review policies of the services that directly affect the individuals supported by the service provider.

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

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

(b) Be accurate and contain no willful falsifications;

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

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

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

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

(6) STAFFING REQUIREMENTS.

(a) Each service provider must provide direct service staff appropriate to the number and level of individuals served as follows:

(A) Supported employment and community based service providers must provide adequate direct services staff to ensure initial service and site development, training, and ongoing support to ensure that individual’s rights, basic health, and safety are met. A staff member must contact individual’s receiving services through supported employment or community based sites two times per month at minimum.

(B) Facility based service providers must provide adequate direct services staff to ensure that individual’s rights, basic health, and safety are met. When individuals are present, the service must provide and document that there are staff trained in the following areas:

(i) At least one staff member on duty with CPR certification at all times;

(ii) At least one staff member on duty with current First Aid certification at all times;

(iii) At least one staff member on duty with training to meet other specific medical needs as determined through the ISP process; and

(iv) At least one staff member on duty with training to meet other specific behavior intervention needs as determined through the ISP process.

(b) Each service provider must meet all additional requirements for direct service staff ratios and specialized training as specified by contract requirements.

(7) BASIC PERSONNEL POLICIES AND PROCEDURES. The service provider must have in place and implement personnel policies and procedures that address suspension, increased supervision, or other appropriate disciplinary employment procedures when a staff member has been identified as an accused person in an abuse investigation or when the allegation of abuse has been substantiated.

(8) MANDATORY ABUSE REPORTING. Any employee of a private agency that contracts with a CDDP is a mandatory reporter. Notification of mandatory reporting status must be made at least annually to all employees on forms provided by the Department. All employees must be provided with a Department-produced card regarding abuse reporting status and abuse reporting.

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

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

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

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

(B) Discharge from or termination of employment;

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

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

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

(11) BACKGROUND CHECKS. Any employee, volunteer, advisor, or any subject individual defined by OAR 407-007-0200 to 407-007-0370, who has or will have contact with an individual of the service, must have an approved background check in accordance with OAR 407-007-0200 to 407-007-0370 and under ORS 181.534.

(a) Effective July 28, 2009, the service provider may not use public funds to support, in whole or in part, any person as described in section (9) of this rule in any capacity who has been convicted of any of the disqualifying crimes listed in OAR 407-007-0275.

(b) Subsection (a) of this section does not apply to employees of the service provider who were hired prior to July 28, 2009 and remain in the current position for which the employee was hired.

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

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

(13) GENERAL STAFF QUALIFICATIONS. Any staff supervising individuals must:

(a) Be at least 18 years of age;

(b) Be capable of performing the duties of the job as described in a current job description which he or she has signed and dated; and

(c) If hired on or after July 28, 2009, not have been convicted of any of the disqualifying crimes listed in OAR 407-007-0275.

(14) PERSONNEL FILES. The service provider must maintain a personnel file available to the Department or the Department’s designee for inspection that includes written documentation of the following for each employee:

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

(b) Written documentation of six hours of pre-service training prior to supervising individuals including mandatory abuse reporting training, training to work with individuals with developmental disabilities, and training on the support needs of the individual to whom they will provide support;

(c) Documentation that CPR and first-aid certification were obtained from a recognized training agency within three months of employment and kept current if needed to meet the staffing requirements as described in section (4) of this rule;

(d) Written documentation of 12 hours of annual job-related in-service training;

(e) Written documentation of employees’ notification of mandatory reporter status;

(f) Written documentation of any founded report of child abuse or substantiated abuse;

(g) Written documentation of an approved Department background check per OAR 407-007-0200 to 407-007-0370; and

(h) Written documentation of any complaints filed against the staff person and the results of the complaint process, including, if any, disciplinary action.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 26-1982(Temp), f. & ef. 12-3-82; MHD 9-1983, f. & ef. 6-7-83; MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0045, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 12-2010, f. 6-30-10, cert. ef. 7-1-10; SPD 5-2011(Temp), f. & cert. ef. 2-7-11 thru 8-1-11; SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0110

Individual Rights

(1) ABUSE. Any individual as defined in OAR 411-345-0020 must not be abused nor shall abuse be tolerated by any employee, staff, or volunteer of the service provider.

(2) PROTECTION AND WELLBEING.

(a) The service provider must have and implement written policies and procedures that protect individuals’ rights during the hours the individual is receiving services. The service provider must encourage and assist individuals to understand and exercise their rights. The policies and procedures must at a minimum provide for:

(A) Assurance that each individual has the same civil and human rights accorded to other citizens;

(B) Adherence to all applicable state and federal labor rules and regulations;

(C) Opportunities for individuals to be productive;

(D) Services that promote independence and that are appropriate to the age and preferences of the individual;

(E) Confidentiality of personal information regarding the individual;

(F) Adequate medical and health care, supportive services, and training;

(G) Opportunities for visits to legal and medical professionals when necessary;

(H) Private communication, including personal mail and access to a telephone, consistent with the service provider’s policies for all employees;

(I) Fostering of personal control and freedom regarding personal property;

(J) Protection from abuse and neglect, including freedom from unauthorized training, treatment, and chemical or mechanical restraints;

(K) Freedom from unauthorized personal restraints; and

(L) Transfer of individuals within a service as described in OAR 411-345-0140.

(b) At entry to service and in a timely manner as changes occur, the service provider must inform each individual and parent, guardian, or advocate orally and in writing of the service provider’s policy and procedures and a description of how the individual may exercise their rights.

(3) CONFIDENTIALITY OF RECORDS. All individuals’ records are confidential except as otherwise provided by applicable rule or laws.

(a) For the purpose of disclosure from individual medical records under this rule, service providers under these rules are considered a “public provider” as defined in ORS 179.505.

(b) For the purpose of disclosure from non-medical individual records, all or portions of the information contained in those records may be exempt from public inspection under the personal privacy information exemption to the public records law set forth in ORS 192.502.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 26-1982(Temp), f. & ef. 12-3-82; MHD 9-1983, f. & ef. 6-7-83; MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0050, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0130

Grievances

(1) The service provider must implement written policies and procedures for individuals’ grievances. These policies and procedures must at a minimum provide for:

(a) Receipt of grievances from an individual or others acting on behalf of the individual. If the grievance is associated in any way with abuse or the violation of the individual’s rights, the recipient of the grievance must immediately report the issue to the service provider’s director or designee and the CDDP;

(b) Investigation of the facts supporting or disproving the grievance; and

(c) Taking appropriate actions on grievances within five working days following receipt of the grievance.

(2) The service provider’s director or designee must provide a formal written response to the grievant within 15 days of receipt of the grievance unless the grievance is informally resolved to the satisfaction of the grievant prior to that time.

(3) If the grievance is not resolved by the service provider’s director, the grievance may be submitted to the CDDP for review. The CDDP must complete a review and provide a written response to the grievant and service provider within 30 days.

(4) If the grievance is not resolved by the CDDP, it may be submitted to the Administrator of the Division for review. The Administrator shall complete the review and provide a written response within 45 days of submission. The decision of the Administrator or designee is final.

(5) The service provider must document each grievance and the resolution in the grievant’s record. If a grievance resulted in disciplinary action against a staff member, the documentation must include a statement that disciplinary action was taken.

(6) At entry to service and as changes occur, the service provider must inform each individual and parent, guardian, or advocate orally and in writing of the service provider’s grievance policy and procedures and a description of how to utilize them.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0060, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0140

Entry, Exit and Transfer

(1) QUALIFICATIONS. All individuals considered for Division-funded services must:

(a) Be referred by the CDDP;

(b) Be determined to have a developmental disability by the Division or the Division’s designee;

(c) Not be discriminated against because of race, color, creed, age, disability, national origin, gender, religion, duration of Oregon residence, method of payment, or other forms of discrimination under applicable state or federal law;

(d) Be 18 years of age or older and not eligible to receive public education services under Public Law 94-142;

(e) Be an individual also receiving residential services that are paid or regulated by the Division including but not limited to:

(A) Comprehensive residential services regulated by OAR chapter 411, division 325;

(B) An adult foster home regulated by OAR chapter 411, division 360;

(C) A supported living program regulated by OAR chapter 411, division 328; or

(D) An individual’s own or family home when the individual receives comprehensive in-home support services that are provided according to OAR chapter 411, division 330.

(2) ENTRY. An entry ISP team meeting must be conducted prior to the initiation of services to the individual.

(a) The service provider must acquire the following information prior to an entry ISP team meeting:

(A) Written documentation the individual has been determined to have a developmental disability;

(B) A statement indicating the individual’s safety skills including ability to evacuate from a building when warned by a signal device;

(C) A brief written history of any behavioral challenges;

(D) Documentation of the individual’s current physical condition, including any physical limitations that would affect employment;

(E) Documentation of any guardian or conservator, or any other legal restriction on the rights of the individual, if applicable; and

(F) A copy of the individual’s most recent ISP, if applicable.

(b) The findings of the entry meeting must be recorded in the individual’s file and include at a minimum:

(A) The name of the individual proposed for services;

(B) The date of the meeting;

(C) The date determined to be the date of entry;

(D) Documentation of the participants at the meeting;

(E) Documentation as required by OAR 411-345-0190 and 411-345-0200;

(F) Documentation of the pre-entry information required by subsection (a) of this section;

(G) Documentation of the proposed transition plan as defined in OAR 411-320-0020 (CDDP) for services to be provided;

(H) Documentation of any deviation from the unit of service

(I) Documentation of the type of employment or alternatives to employment service the individual will receive; and

(J) Documentation of the decision to serve or not serve the individual requesting service, with reasons.

(3) EXIT.

(a) Each individual considered for exit must have a meeting by the ISP team before any decision to exit is made. Findings of such a meeting must be recorded in the individual’s file and include at a minimum:

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

(B) The date of the meeting;

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

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

(E) Documentation of the discussion of the strategies to prevent an exit from service (unless the individual is requesting exit);

(F) Documentation of the decision regarding exit including verification of a majority agreement of the meeting participants regarding the decision; and

(G) Documentation of the proposed plan for services to the individual after the exit.

(b) Requirements for an exit meeting may be waived if an individual is immediately removed from the service under the following conditions:

(A) The individual and the individual’s guardian requests an immediate removal from the service; or

(B) The individual is removed by a legal authority acting pursuant to civil or criminal proceedings.

(4) TRANSFER. A decision to transfer an individual within a service provider may be made by the ISP team. Findings of the ISP team must be recorded in the individual’s file and include at a minimum:

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

(b) The date of the meeting or telephone call;

(c) Documentation of the participants included in the meeting or telephone call;

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

(e) Documentation of the alternatives considered, including transfer;

(f) Documentation of the reasons why any preferences of the individual, legal representative, or family members cannot be honored;

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

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

(5) APPEAL. Any member of the ISP team may file an appeal in cases where the individual and the individual’s parent, guardian, or advocate object to, or the ISP team cannot reach majority agreement regarding an admission refusal, a request to exit the service, or a transfer within a service. In the case of a request to exit or transfer, the individual shall continue to receive the same services received prior to the appeal until the appeal is resolved.

(a) All appeals must be made in writing to the CDDP Director or designee for decision using the county’s appeal process. The CDDP Director must make a decision within 30 working days of receipt of the appeal and notify the appellant of the decision in writing.

(b) The decision of the CDDP Director may be appealed by the individual, the individual’s parent, guardian, advocate, or the service provider by notifying the Division in writing within 10 working days of receipt of the county’s decision.

(A) The Administrator of the Division shall appoint a committee composed of a Division representative, a service representative, and a Services Coordinator.

(B) In case of a conflict of interest, as determined by the Administrator, alternative representatives shall be temporarily appointed by the Administrator to the committee.

(C) The committee must review the appealed decision and make a written recommendation to the Administrator within 45 working days of receipt of the notice of appeal.

(D) The Administrator shall make a decision on the appeal within 10 working days after receipt of the recommendation from the committee.

(E) If the decision is for admission or continued placement and the service refuses admission or continued placement, the funding for that unit of service may be withdrawn by the contractor.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; MHD 2-2003(Temp), f. & cert. ef. 7-1-03 thru 12-27-03; Renumbered from 309-047-0065, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0160

Individual Support Plan

The ISP is an annual agreement made between an individual receiving services and the team of people supporting the individual that describes what is important to and for the individual receiving services, The ISP explains the balance of, and any conflicts between, what is important to and for the individual and documents commitments made by service providers and other team members to support the individual working toward their goals.

(1) An individual has the right to participate in their ISP meeting and must be afforded every opportunity to develop their ISP with the ISP team.

(2) The ISP must be implemented and a copy of each individual’s ISP must be available at the service site within 60 days of entry and updated at least annually or as changes occur.

(3) The service provider must:

(a) Assign a staff member to participate as a team member in the development of an ISP for each individual served;

(b) Follow any required process and format as described in this rule;

(c) Train staff to understand each individual’s ISP and supporting documents and to provide individual services; and

(d) Comply with Department or Division rules and policies regarding the ISP.

(4) A face-to-face meeting must be conducted annually with all ISP team members. An exception is made when the individual chooses not to participate in the meeting.

(5) In preparation for the ISP meeting, the service provider must:

(a) Gather person-centered information regarding preferences, interests, and desires of the individual supported;

(b) Review the current ISP to determine the ongoing appropriateness and adequacy of the services and supports identified in the plan; and

(c) Share all materials drafted in preparation for the ISP meeting with all team members one week in advance of the ISP meeting.

(6) The ISP must:

(a) Address an individual’s interest in pursuing a path to employment;

(b) Include action plans that further an individual’s achievement of employment or their goals for other types of day activities;

(c) Reflect decisions and agreements made by the team during planning;

(d) Include documentation of the commitments made by team members to support the individual’s accomplishment of personal goals;

(e) Identify the type of services needed, how services are delivered, and the frequency of provided services;

(f) Identify timeframes for completion of goals or activities: and

(g) Contain signature of all ISP team members.

(7) The format for the ISP is based on the residential service being provided.

(a) For adults residing in 24-hour residential services, the ISP must be in accordance with OAR 411-325-0430 and this rule.

(b) For adults residing in foster care, the ISP must be in accordance with OAR 411-360-0170 and this rule.

(c) For adults residing in supported living services, the ISP must be in accordance with OAR 411-328-0750, 411-320-0120, and this rule.

(d) For adults residing in in-home comprehensive services, the ISP must be in accordance with OAR 411-330-0050 and this rule.

(8) Any deviation from the unit of service must be agreed to and documented by the ISP team.

(9) To meet the changing needs of the individual throughout the authorized ISP period:

(a) The ISP and supporting documents must be amended with ISP team approval; and

(b) The documentation must be kept current and be available for review by the individual, guardian, CDDP, and Department representatives.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0075, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0170

Behavior Support

(1) The service provider must have and implement a written policy for behavior support utilizing individualized positive support techniques and prohibiting abusive practices.

(2) The service provider must inform the individual and the individual’s legal guardian of the behavior support policy, and any applicable procedures, at the time of entry to services and as changes to the behavior policy occur.

(3) Prior to the development of a Behavior Support Plan, the service provider must conduct a functional behavioral assessment of the behavior, which must be based upon information provided by one or more persons who know the individual. The functional behavioral assessment must include:

(a) A clear, measurable description of the behavior that includes (as applicable) frequency, duration, and intensity of the behavior;

(b) A clear description and justification of the need to alter the behavior;

(c) An assessment of the meaning of the behavior that includes the possibility that the behavior is one or more of the following:

(A) An effort to communicate;

(B) The result of medical conditions;

(C) The result of psychiatric conditions; and

(D) The result of environmental causes or other factors.

(d) A description of the context in which the behavior occurs; and

(e) A description of what currently maintains the behavior.

(4) The Behavior Support Plan must include:

(a) An individualized summary of the individual’s needs, preferences, and relationships;

(b) A summary of the functions of the behavior, as derived from the functional behavioral assessment;

(c) Strategies that are related to the functions of the behavior and are expected to be effective in reducing problem behaviors;

(d) Prevention strategies including environmental modifications and arrangements;

(e) Early warning signals or predictors that may indicate a potential behavioral episode and a clearly defined plan of response;

(f) A general crisis response plan that is consistent with OIS;

(g) A plan to address post crisis issues;

(h) A procedure for evaluating the effectiveness of the Behavior Support Plan that includes a method of collecting and reviewing data on frequency, duration, and intensity of the behavior;

(i) Specific instructions for staff who provide support to follow regarding the implementation of the Behavior Support Plan; and

(j) Positive behavior supports that includes the least intrusive intervention possible.

(5) Service providers must maintain the following additional documentation for implementation of Behavior Support Plans:

(a) Written evidence that the individual, the individual’s parent (if applicable), guardian or legal representative (if applicable), and the ISP team are aware of the development of the Behavior Support Plan and any objections or concerns;

(b) Written evidence of the ISP team decision for approval of the implementation of the Behavior Support Plan; and

(c) Written evidence of all informal and positive strategies used to develop an alternative behavior.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0080, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0180

Physical Intervention

(1) The service provider must only employ physical intervention techniques that are included in the approved OIS curriculum or as approved by the OIS Steering Committee. Physical intervention techniques must only be applied:

(a) When the health and safety of the individual and others are at risk and the ISP team has authorized the procedures in a documented ISP team decision that is included in the ISP and uses procedures that are intended to lead to less restrictive intervention strategies;

(b) As an emergency measure, if absolutely necessary to protect the individual or others from immediate injury; or

(c) As a health related protection ordered by a physician if absolutely necessary during the conduct of a specific medical or surgical procedure, or for the individual’s protection during the time that a medical condition exists.

(2) Staff supporting an individual must be trained by an instructor certified in OIS when the individual has a history of behavior requiring physical intervention and the ISP team has determined there is probable cause for future application of physical intervention. Documentation verifying OIS training for staff must be maintained in their personnel file.

(3) The service provider must obtain the approval of the OIS Steering Committee for any modification of standard OIS physical intervention techniques. The request for modification of physical intervention techniques must be submitted to the OIS Steering Committee and must be approved in writing by the OIS Steering Committee prior to the implementation of the modification. Documentation of the approval must be maintained in the individual’s record.

(4) Use of physical intervention techniques in emergency situations that are not part of an approved Behavior Support Plan must:

(a) Be reviewed by the services director or designee within one hour of application;

(b) Be used only until the individual is no longer an immediate threat to self or others;

(c) Be documented as an incident report and submitted to the services coordinator, or other Department designee (if applicable), and the individual’s legal guardian (if applicable), no later than one working day after the incident has occurred; and

(d) Prompt an ISP team meeting if an emergency intervention is used more than three times in a six-month period.

(5) Any use of physical interventions must be documented in an incident report excluding circumstances defined in section (8) of this rule. The incident report must include:

(a) The name of the individual to whom the physical intervention was applied;

(b) The date, type, and length of time the physical intervention was applied;

(c) A description of the incident precipitating the need for the use of the physical intervention;

(d) Documentation of any injury;

(e) The name and position of the staff member applying the physical intervention;

(f) The name and position of the staff witnessing the physical intervention;

(g) The name and position of the person providing the initial review of the use of the physical intervention; and

(h) Documentation of an administrative review that includes the follow-up to be taken to prevent a recurrence of the incident by the director or designee who is knowledgeable in OIS, as evident by a job description that reflects this responsibility.

(6) The service provider must forward a copy of the incident report within five working days of the incident, to the services coordinator and when applicable to the individual’s legal guardian.

(a) The services coordinator, or when applicable the Department designee, shall receive complete copies of incident reports.

(b) Copies of incident reports may not be provided to a legal guardian or other service provider when the report is part of an abuse or neglect investigation.

(c) Copies provided to a legal guardian or other service provider must have confidential information about other individuals removed or redacted as required by federal and state privacy laws.

(7) All interventions resulting in injuries must be documented in an incident report and forwarded to the services coordinator, or other Department designee (if applicable), within one working day of the incident.

(8) The service provider may substitute a behavior data summary in lieu of individual incident reports when:

(a) There is no injury to the individual or others;

(b) The intervention utilized is not a physical restraint;

(c) There is a formal written functional assessment and a written Behavior Support Plan;

(d) The individual’s Behavior Support Plan defines and documents the parameters of the baseline level of behavior;

(e) The physical intervention techniques and the behaviors for which they are applied remain within the parameters outlined in the individual’s Behavior Support Plan and the OIS curriculum;

(f) The behavior data collection system for recording observation, intervention, and other support information critical to the analysis of the efficacy of the Behavior Support Plan, is also designed to record items as required in section (5) of this rule; and

(g) There is written documentation of an ISP team decision that a behavior data summary had been authorized for substitution in lieu of incident reports.

(9) A copy of the behavior data summary must be forwarded every 30 days to the services coordinator or other Department designee (if applicable), and the individual’s legal guardian (if applicable).

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0085, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0190

Medical Services

(1) All individuals’ records must be kept confidential as described in OAR 411-345-0100.

(2) The service provider must have and implement written policies and procedures that describe the medical management system including medication administration, early detection and prevention of infectious disease, self-administration of medication, drug disposal, emergency medical procedures including the handling of bodily fluids, and confidentiality of medical records.

(3) Individuals must receive care that promotes their health and well being, as follows:

(a) The service provider must observe the health and physical condition of individuals and take action in a timely manner in response to identified changes in condition that could lead to deterioration or harm;

(b) The service provider must assist individuals with the use and maintenance of prosthetic devices as necessary for the activities of the service;

(c) The service provider, with the individual’s knowledge, must share information regarding medical conditions with the individual’s residential contact and the Services Coordinator; and

(d) The service provider must provide rest and lunch periods at least as required by applicable law unless the individual’s needs dictate additional time.

(4) The service provider must maintain records on each individual to aid physicians, medical professionals, and the service provider in understanding the individual’s medical history and current treatment program. These records must be kept current and organized in a manner that permits staff and medical persons to follow easily the individual’s course of treatment. Such documentation must include:

(a) A medical history obtained prior to entry to services including where available:

(A) A copy of a record of immunizations; and

(B) A list of known communicable diseases and allergies.

(b) A record of the individual’s current medical condition including:

(A) A copy of all current orders for medication administered, maintained at the service provider’s site;

(B) A list of all current medications; and

(C) A record of visits to medical professionals, consultants, or therapists if facilitated or provided by the service provider.

(5) The administration of medication at the service site must be avoided whenever possible. When medications, treatments, equipment, or special diets must be administered or monitored for self-administration, the service provider must:

(a) Obtain a copy of a written order, signed by a physician, physician’s designee, or a medical practitioner prescribing the medication, treatment, special diet, equipment or other medical service; and

(b) Follow written orders.

(6) PRN orders are not accepted for psychotropic medication.

(7) All medications administered or monitored in the case of self-administration must be:

(a) Kept in their original containers;

(b) Labeled by the dispensing pharmacy, product manufacturer, or physician, as specified per the physician’s or licensed health care practitioner’s written order;

(c) Kept in a secured locked container and stored as indicated by the product manufacturer; and

(d) Recorded on an individualized Medication Administration Record (MAR), including treatments and PRN orders.

(8) The MAR must include:

(a) The name of the individual;

(b) The brand or generic name of the medication including the prescribed dosage and frequency of administration as contained on physician order and medication;

(c) For topical medications and basic first aid treatments utilized without a physician’s order, a transcription of the printed instructions from the package or the description of the basic first aid treatment provided;

(d) Times and dates of administration or self-administration of the medication;

(e) The signature of the staff administering the medication or monitoring the self-administration of the medication;

(f) Method of administration;

(g) Documentation of any known allergies or adverse reactions to a medication;

(h) Documentation and an explanation of why a PRN medication was administered and the results of such administration; and

(i) An explanation of any medication administration irregularity with documentation of administrative review by the service provider’s executive director or designee.

(9) Safeguards to prevent adverse medication reactions shall be utilized to include:

(a) Maintaining information about each prescribed medication’s effects and side-effects;

(b) Communicating any concerns regarding any medication usage, effectiveness, or effects to the residential contact and the services coordinator; and

(c) Prohibiting the use of one individual’s medications by another.

(10) The service site or service provider may not keep unused, discontinued, outdated, or recalled drugs, or drug containers with worn, illegible, or missing labels. All unused, discontinued, outdated, or recalled drugs, or drug containers with worn, illegible, or missing labels must be promptly disposed of in a manner consistent with federal statutes and designed to prevent illegal diversion of the substances into the possession of people other than for whom it was prescribed. A written record must be maintained by the service provider of all disposed drugs and must include:

(a) Date of disposal;

(b) A description of the medication including amount;

(c) The individual for whom the medication was prescribed;

(d) The reason for disposal;

(e) The method of disposal;

(f) Signature of staff disposing; and

(g) For controlled medications, the signature of a witness to the disposal.

(11) For any individual who is self-administering medication the service provider must:

(a) Have documentation that a training program was initiated with approval of the individual’s ISP team or that training for the individual is unnecessary;

(b) If necessary, have a training program that is consistent with the self-administration training program in place at the individual’s residence;

(c) If necessary, have a training program that provides for retraining when there is a change in dosage, medication, or time of delivery;

(d) Have specific supports identified and documented for the individual when training has been deemed unnecessary; and

(e) Provide for an annual review, at a minimum, as part of the ISP process, upon completion of the training program or when training for the individual has been deemed necessary by the ISP team.

(12) The service provider must ensure that individuals able to self-administer medications keep them secured, unavailable to any other person, and stored as recommended by the product manufacturer.

(13) The service provider must immediately contact the services coordinator when the individual’s medical, behavioral, or physical needs change to a point that the individual’s needs may not be met by the service provider. The ISP team must determine alternative placement or arrangement if necessary.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0090, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0200

Individual Summary Sheets and Emergency Information

(1) INDIVIDUAL SUMMARY SHEETS. A current one to two page summary sheet record must be maintained at the service provider’s primary place of business for each individual receiving services. The record must include:

(a) The individual’s name, current address, telephone number, date of entry into services, date of birth, gender, preferred hospital, medical prime and private insurance number where applicable, guardianship status; and

(b) The name, address, and telephone number of:

(A) The individual’s legal representative, family, advocate, and other significant person;

(B) The individual’s preferred physician, secondary physician, and clinic;

(C) The individual’s preferred dentist;

(D) The individual’s services coordinator; and

(E) Other agencies and representatives providing services and supports to the individual.

(2) EMERGENCY INFORMATION. A service provider must maintain emergency information for each individual receiving supports and services from the service provider in addition to an individual summary sheet identified in section (1) of this rule.

(a) The emergency information must be kept current and must include:

(A) The individual’s name;

(B) The service provider’s name, address, and telephone number;

(C) The address and telephone number of the residence where the individual lives;

(D) The individual’s physical description, which may include a picture and the date it was taken, and identification of:

(i) The individual’s race, gender, height, weight range, hair, and eye color; and

(ii) Any other identifying characteristics that may assist in identifying the individual may the need arise, such as marks or scars, tattoos, or body piercing.

(E) Information on the individual’s abilities and characteristics including:

(i) How the individual communicates;

(ii) The language the individual uses or understands;

(iii) The ability of the individual to know and take care of bodily functions; and

(iv) Any additional information that may assist a person not familiar with the individual to understand what the individual may do for him or herself.

(F) The individual’s health support needs including:

(i) Diagnosis;

(ii) Allergies or adverse drug reactions;

(iii) Health issues that a person would need to know when taking care of the individual;

(iv) Special dietary or nutritional needs such as requirements around the textures or consistency of foods and fluids;

(v) Food or fluid limitations due to allergies, diagnosis, or medications the individual is taking that may be an aspiration risk or other risk for the individual;

(vi) Additional special requirements the individual has related to eating or drinking, such as special positional needs or a specific way foods or fluids are given to the individual;

(vii) Physical limitations that may affect the individual’s ability to communicate, respond to instructions, or follow directions; and

(viii) Specialized equipment needed for mobility, positioning, or other health related needs.

(G) The individual’s emotional and behavioral support needs including:

(i) Mental health or behavioral diagnosis and the behaviors displayed by the individual; and

(ii) Approaches to use when dealing with the individual to minimize emotional and physical outbursts.

(H) Any court ordered or guardian authorized contacts or limitations;

(I) The individual’s supervision requirements and why; and

(J) Any additional pertinent information the service provider has that may assist in the care and support of the individual in the event of a natural or man-made disaster.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0095, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0230

Incident Reports and Emergency Notifications

(1) A written incident report describing any injury, accident, act of physical aggression, or unusual incident involving an individual must be placed in the individual’s record. Such description must include:

(a) Conditions prior to or leading to the incident;

(b) A description of the incident;

(c) Staff response at the time; and

(d) Administrative review and follow-up to be taken to prevent a recurrence of the injury, accident, physical aggression, or unusual incident.

(2) Copies of all unusual incident (as defined by OAR 411-345-0020) reports must be sent to the Services Coordinator within five working days of the incident.

(3) The program must notify the CDDP immediately of an incident or allegation of abuse falling within the scope of OAR 407-045-0260.

(4) In the case of an unusual incident requiring emergency response, the service must immediately notify:

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

(b) The CDDP;

(c) The individual’s residential contact; and

(d) Any other agency responsible for the individual.

(5) In the case of an individual who is missing or absent without supervision beyond the time frames established by the ISP team, the service must immediately notify:

(a) The individual’s designated contact person;

(b) The individual’s guardian, if any, or nearest responsible relative;

(c) The individual’s residential contact;

(d) The local police department; and

(e) The CDDP.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0110, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 12-2010, f. 6-30-10, cert. ef. 7-1-10; SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0240

Emergency Plan and Safety Review

(1) Service providers must develop, keep current, and implement a written emergency plan for the protection of all individuals in the event of an emergency or disaster.

(a) The emergency plan must:

(A) Be practiced at least annually.

(B) Consider the needs of the individuals being supported and address all natural and human-caused events identified as a potential significant risk to the individuals such as a pandemic or an earthquake.

(C) Coordinate with each residential provider or residential contact to address the possibility of emergency or disaster resulting in the following:

(i) Extended utility outage;

(ii) No running water;

(iii) Inability to provide food or supplies; and

(iv) Staff unable to report as scheduled.

(D) Include provisions for evacuation and relocation that identifies:

(i) The duties of staff during evacuation, transport, and housing of individuals;

(ii) The requirement for staff to notify the Division and the local CDDP office of the plan to evacuate or the evacuation of the facility, as soon as the emergency or disaster reasonably allows;

(iii) The method and source of transportation;

(iv) Planned relocation sites that are reasonably anticipated to meet the needs of the individuals;

(v) A method that provides persons unknown to the individual the ability to identify each individual by the individual’s name and to identify the name of the individual’s supporting provider; and

(vi) A method for tracking and reporting to the Division, local CDDP office, or designee, the physical location of each individual until a different entity resumes responsibility for the individual,

(E) Address the needs of the individual including medical needs.

(F) Be submitted to the Division as a summary, per Division format, at least annually and upon revision and change of ownership.

(2) Service providers must post the following emergency telephone numbers in close proximity to all phones used by staff:

(a) The telephone numbers of the local fire, police department, and ambulance service, if not served by a 911 emergency services; and

(b) The telephone number of the service provider’s executive director and additional persons to be contacted in the case of an emergency.

(3) If an individual regularly accesses the community independently, the service provider must provide to the individual information about appropriate steps to take in an emergency, such as emergency contact telephone numbers, contacting police or fire personnel, or other strategies to obtain assistance.

(4) A documented safety review must be conducted quarterly to ensure the service site is free of hazards. The service provider must keep the quarterly safety review reports for five years and must make them available upon request by the CDDP or the Department.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0115, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0250

Evacuation

(1) The service provider must train all individuals immediately upon entry to each service site to leave the site in response to an alarm or other emergency signal to exit.

(2) The service provider must document the level of assistance needed by each individual to safely evacuate and such documentation must be maintained in the individual’s entry records.

(3) Facility-based service providers must conduct unannounced evacuation drills one per quarter each year when individuals are present, unless required more often by the Oregon Occupational Safety and Health Division.

(a) Drills must occur at different times of the day.

(b) Exit routes must vary based on the location of a simulated emergency.

(c) Any individual failing to evacuate the service site unassisted within three minutes, or an amount of time set by the local fire authority for the site, must be provided specialized training and support in evacuation procedures.

(4) Facility-based service providers must make written documentation at the time of each drill and keep the documentation for at least two years following the drill. Documentation must include:

(a) The date and time of the drill;

(b) The location of the simulated emergency and exit route;

(c) The last names of all individuals and staff present in the service area at the time of the drill;

(d) The type of evacuation assistance provided by staff to individuals’ that need more than three minutes to evacuate as specified in an individual’s safety plan;

(e) The amount of time required by each individual to evacuate if the individual needs more than three minutes to evacuate;

(f) The amount of time for all individuals to evacuate exclusive of individuals with specialized support per section (3)(c) of this rule; and

(g) The signature of the staff conducting the drill.

(5) The service provider must develop a written safety plan for individuals who are unable to evacuate the site within the required evacuation time or who, with concurrence of the ISP team, request not to participate in evacuation drills. The safety plan must include:

(a) Documentation of the risk to the individual’s medical, physical condition, and behavioral status;

(b) Identification of how the individual must evacuate the site including level of support needed;

(c) The routes to be used to evacuate the individual to a point of safety;

(d) Identification of assistive devices required for evacuation;

(e) The frequency the plan shall be practiced and reviewed by the individual and staff;

(f) The alternative practices;

(g) Approval of the plan by the individual’s guardian, services coordinator, and the service provider’s director; and

(h) A plan to encourage future participation in evacuation drills.

(6) The service provider must provide necessary adaptations or accommodations to ensure evacuation safety for individuals with sensory and physically impairments.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0120, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0260

Physical Environment

(1) All supported employment and community based services must ensure that the service site has no known health or safety hazards in its immediate environment and that individuals are trained to avoid recognizable hazards.

(2) The service provider must assure that at least once every five years a health and safety inspection is conducted of owned, leased, or rented buildings and property.

(a) The inspection must cover all areas and buildings where services are delivered to individuals, administrative offices, and storage areas.

(b) The inspection may be performed by:

(A) Oregon Occupational Safety and Health Division;

(B) The service’s workers compensation insurance carrier; or

(C) An appropriate expert such as a licensed safety engineer or consultant approved by the Division; and

(D) The Oregon Public Health Division, when necessary.

(c) The inspection must cover:

(A) Hazardous material handling and storage;

(B) Machinery and equipment used by the service;

(C) Safety equipment;

(D) Physical environment; and

(E) Food handling, when necessary.

(d) The documented results of the inspection, including recommended modifications or changes, and documentation of any resulting action taken must be kept by the service provider for five years.

(3) The service provider must ensure buildings and property at each owned, leased, or rented service site has annual fire and life safety inspections performed by the local fire authority or a Deputy State Fire Marshal. The documented results of the inspection, including documentation of recommended modifications or changes, and documentation of any resulting action taken must be kept by the service provider for five years.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0125, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 5-2011(Temp), f. & cert. ef. 2-7-11 thru 8-1-11; SPD 14-2011, f. & cert. ef. 7-1-11

411-345-0270

Vehicles and Drivers

(1) Services that own or operate vehicles that transport individuals must:

(a) Maintain the vehicles in safe operating condition;

(b) Comply with Oregon Driver and Motor Vehicle Services Division laws;

(c) Maintain insurance coverage; and

(d) Carry a first-aid kit in vehicles.

(2) Drivers operating vehicles to transport individuals must meet applicable Oregon Driver and Motor Vehicle Services Division requirements.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 7-1990(Temp), f. & cert. ef. 6-12-90; MHD 13-1990, f. & cert. ef. 12-7-90; MHD 1-1997, f. & cert. ef. 1-31-97; Renumbered from 309-047-0130, SPD 23-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 14-2011, f. & cert. ef. 7-1-11

 

Rule Caption: Foster Homes for Children with Developmental Disabilities.

Adm. Order No.: SPD 15-2011

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

Certified to be Effective: 7-1-11

Notice Publication Date: 6-1-2011

Rules Adopted: 411-346-0110, 411-346-0150, 411-346-0160, 411-346-0165, 411-346-0190, 411-346-0200, 411-346-0220

Rules Repealed: 411-346-0110(T), 411-346-0150(T), 411-346-0160(T), 411-346-0165(T), 411-346-0190(T), 411-346-0200(T), 411-346-0220(T)

Subject: In response to legislatively required budget reductions, the Department of Human Services is permanently amending various rules relating to foster homes for children with developmental disabilities in OAR chapter 411, division 346 to change the annual certification period to two years. Language associated with the certification timeframe and provider expectations for chimney inspection, emergency preparedness, and inactive referral status have also been changed to comply with the two year cycle.

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

411-346-0110

Definitions

(1) “Abuse” means:

(a) Abuse of a child under the age of 18 as defined in ORS 419B.005; and

(b) Abuse of an adult as defined in OAR 407-045-0260 when an individual between the ages of 18 and 21 resides in a certified child foster home.

(2) “Alternate Caregiver” means any person 18 and older responsible for the care or supervision of a child in foster care.

(3) “Alternative Educational Plan (AEP)” means any school plan that does not occur within the physical school setting.

(4) “Appeal” means the process for a contested hearing under ORS chapter 183 that the foster provider may use to petition the suspension, denial, non-renewal, or revocation of their certificate or application.

(5) “Applicant” means a person who wants to become a child foster provider, lives at the residence where a child in foster care shall live, and is applying for a child foster home certificate or is renewing a child foster home certificate.

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

(7) “Aversive Stimuli” means the use of any natural or chemical product to alter a child’s behavior such as the use of hot sauce or soap in the mouth and spraying ammonia or lemon water in the face of a child. Psychotropic medications are not considered aversive stimuli.

(8) “Behavior Supports” means a positive training plan used by the foster provider and alternate caregivers to help a child in foster care develop the self control and self direction necessary to assume responsibilities, make daily living decisions, and learn to conduct themselves in a manner that is socially acceptable.

(9) “Case Plan” means the goal-oriented, time-limited, individualized plan of action for a child and the child’s family developed by the child’s family and the Department’s Children, Adults, and Families Division for promotion of the child’s safety, permanency, and well being.

(10) “Case Worker” means an employee of the Department’s Children, Adults, and Families Division.

(11) “Certificate” means a document issued by the Department that notes approval to operate a child foster home for a period not to exceed two years.

(12) “Certifier” or “Certifying Agency” means the Department, Community Developmental Disability Program, or an agency approved by the Department who is authorized to gather required documentation to issue or maintain a child foster home certificate.

(13) “Child” means:

(a) An individual under the age of 18 who has a provisional eligibility determination of developmental disability by the Community Developmental Disability Program; or

(b) A young adult age 18 through 21 who is remaining in the same foster home for the purpose of completing their Individualized Education Plan, based on their Individual Support Plan team recommendation and an approved certification variance.

(14) “Child Foster Home (CFH)” means a home certified by the Department that is maintained and lived in by the person named on the foster home certificate.

(15) “Child Foster Home Contract” means an agreement between a provider and the Department that describes the responsibility of the foster care provider and the Department.

(16) “Child Placing Agency” means the Department, Community Developmental Disability Program, or the Oregon Youth Authority.

(17) “Commercial Basis” means providing and receiving compensation for the temporary care of individuals not identified as members of the household.

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

(19) “Denial” means the refusal of the certifying agency to issue a certificate of approval to operate a child foster home because the certifying agency has determined that the home or the applicant is not in compliance with one or more of these rules.

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

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

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

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

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

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

(22) “DHS-CW” means the child welfare program area within the Department’s Children, Adults, and Families Division.

(23) “Direct Nursing Services” means the provision of individual-specific advice, plans, or interventions, based on nursing process as outlined by the Oregon State Board of Nursing, by a nurse at the home or facility. Direct nursing service differs from administrative nursing services. Administrative nursing services include non-individual-specific services, such as quality assurance reviews, authoring health related agency policies and procedures, or providing general training for the foster provider or alternate caregivers.

(24) “Discipline” for the purpose of these rules, discipline is synonymous with behavior supports.

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

(26) “Domestic Animals” mean any various animals domesticated so as to live and breed in a tame condition. Examples of domestic animals are dogs, cats, and domesticated farm stock.

(27) “Educational Surrogate” means a person who acts in place of a parent in safeguarding a child’s rights in the special education decision-making process:

(a) When the parent cannot be identified or located after reasonable efforts;

(b) When there is reasonable cause to believe that the child has a disability and is a ward of the state; or

(c) At the request of a parent or adult student.

(28) “Emergency Certificate” means a foster home certificate issued for 30 days.

(29) “Foster Care” means a child is placed away from their parent or guardian in a certified child foster home.

(30) “Foster Provider” means the certified care provider who resides at the address listed on the foster home certificate. For the purpose of these rules, “foster provider” is synonymous with child foster parent or relative caregiver and is considered a private agency for purposes of mandatory reporting of abuse.

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

(32) “Guardian” means a parent for individuals less than 18 years of age or a person or agency appointed and authorized by an Oregon court to make decisions about services for an individual in foster care.

(33) “Health Care Provider” means a person or health care facility licensed, certified, or otherwise authorized or permitted by Oregon law to administer health care in the ordinary course of business or practice of a profession.

(34) “Home Inspection” means an on-site, physical review of the applicant’s home to assure the applicant meets all health and safety requirements within these rules.

(35) “Home Study” means the assessment process used for the purpose of determining an applicant’s abilities to care for a child in need of foster care placement.

(36) “Incident Report” means a written report of any unusual incident involving the child in foster care.

(37) “Individualized Education Plan (IEP)” means a written plan of instructional goals and objectives in conference with the teacher, parent or guardian, student, and a representative of the school district.

(38) “Individual Support Plan (ISP)” means the written details of the supports, activities, and resources required to meet the health, safety, financial, and personal goals of the child in foster care. The Individual Support Plan is the child’s plan of care for Medicaid purposes.

(39) “Individual Support Plan (ISP) Team” means a team composed of:

(a) The child in foster care when appropriate;

(b) The foster provider;

(c) The guardian;

(d) The Community Developmental Disability Program services coordinator; and

(e) May include family or any other approved persons who are approved by the child and the child’s guardian to develop the Individual Support Plan.

(40) “Licensed Medical Professional” means a person who meets the following:

(a) Holds at least one of the following valid licensures or certifications:

(A) Physician licensed to practice in Oregon;

(B) Nurse practitioner certified by the Oregon State Board of Nursing under ORS 678.375; or

(C) Physician’s assistant licensed to practice in Oregon; and

(b) Whose training, experience, and competence demonstrate expertise in children’s mental health, the ability to conduct a mental health assessment, and provide psychotropic medication management for a child in foster care.

(41) “Mandatory Reporter” means any public or private official who:

(a) For the purposes of this rule, is a foster provider, staff, or volunteer working with individuals birth to 17 years of age, and comes in contact with and has reasonable cause to believe a child has suffered abuse, or comes in contact with any person whom the official has reasonable cause to believe abused a child, regardless of whether or not the knowledge of the abuse was gained in the reporter’s official capacity. Nothing contained in ORS 40.225 to 40.295 shall affect the duty to report imposed by this section, except that a psychiatrist, psychologist, clergyman, attorney, or guardian ad litem appointed under ORS 419B.231 shall not be required to report such information communicated by a person if the communication is privileged under ORS 40.225 to 40.295.

(b) For the purposes of this rule, is a foster provider, staff, or volunteer working with individuals 18 years and older, and while acting in an official capacity, comes in contact with and has reasonable cause to believe an adult with developmental disabilities has suffered abuse, or comes in contact with any person whom the official has reasonable cause to believe abused an adult with developmental disabilities. Pursuant to ORS 430.765(2) psychiatrists, psychologists, clergy, and attorneys are not mandatory reporters with regard to information received through communications that are privileged under ORS 40.225 to 40.295.

(42) “Mechanical Restraint” means any mechanical device, material, object, or equipment that is attached or adjacent to an individual’s body that the individual cannot easily remove or easily negotiate around that restricts freedom of movement or access to the individual’s body.

(43) “Member of the Household” means any adults and children living in the home, including any employees or volunteers assisting in the care provided to a child placed in the home. For the purpose of these rules, a child in foster care is not considered a member of the household.

(44) “Mental Health Assessment” means the determination of a child’s need for mental health services by interviewing the child and obtaining all pertinent biopsychosocial information, as identified by the individual, family, and collateral sources that:

(a) Addresses the current complaint or condition presented by the child;

(b) Determines a diagnosis; and

(c) Provides treatment direction and individualized services and supports.

(45) “Misuse of Funds” includes but is not limited to providers or their staff:

(a) Borrowing from or loaning money to a child in foster care;

(b) Witnessing a will in which the provider or a staff is a beneficiary;

(c) Adding the provider’s name to an individual’s bank account or other titles for personal property without approval of the individual, when of age to give legal consent, or the individual’s legal representative and authorization of the Individual Support Plan team;

(d) Inappropriately expending or theft of an individual’s personal funds;

(e) Using an individual’s personal funds for the provider’s or staff’s own benefit; or

(f) Commingling an individual’s funds with provider or another individual’s funds.

(46) “Monitoring” means the observation by the Department, or designee, of a certified child foster home to determine continuing compliance with these rules.

(47) “Nurse” means a person who holds a current license from the Oregon Board of Nursing as a registered nurse (RN) or licensed practical nurse (LPN).

(48) “Nursing Care Plan” means a plan of care developed by a registered nurse that describes the medical, nursing, psychosocial, and other needs of the individual and how those needs shall be met. The Nursing Care Plan includes which tasks shall be taught or delegated to the foster provider and alternate caregivers.

(49) “Occupant” means any person having official residence in a certified child foster home.

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

(51) “Oregon Youth Authority (OYA)” means an agency that has been given commitment and supervision responsibilities over those youth offenders, by order of the juvenile court under ORS 137.124 or other statute, until the time that a lawful release authority authorizes release or terminates the commitment or placement.

(52) “Permanent Foster Care” means a long term contractual agreement between the foster parent and the Department’s Children, Adults, and Families Division, approved by the juvenile court that specifies the responsibilities and authority of the foster parent and the commitment by the permanent foster parent to raise a child until the age of majority or until the court determines that permanent foster care is no longer the appropriate plan for the child.

(53) “Protected Health Information” means any oral or written health information that identifies the child and relates to the child’s past, present, or future physical or mental health condition, health care treatment, or payment for health care treatment.

(54) “Protective Physical Intervention” means:

(a) Any manual physical holding of or contact with a child that restricts the child’s freedom of movement; and

(b) The use of any physical action to maintain the health and safety of a child or others during a potentially dangerous situation or event.

(55) “Psychotropic Medication” means medication the prescribed intent of which is to affect or alter thought processes, mood, or behavior including but not limited to anti-psychotic, antidepressant, anxiolytic (anti-anxiety), and behavior medications. The classification of a medication depends upon its stated, intended effect when prescribed.

(56) “Qualified Mental Health Professional” means a person who meets both of the following:

(a) Holds at least one of the following educational degrees:

(A) Graduate degree in psychology;

(B) Bachelor’s degree in nursing and licensed in Oregon;

(C) Graduate degree in social work;

(D) Graduate degree in a behavioral science field;

(E) Graduate degree in recreational, art, or music therapy;

(F) Bachelor’s degree in occupational therapy and licensed in Oregon; and

(b) Whose education and experience demonstrates the competencies to:

(A) Identify precipitating events;

(B) Gather histories of mental and physical disabilities, alcohol and drug use, past mental health services, and criminal justice contacts;

(C) Assess family, social, and work relationships;

(D) Conduct a mental status examination;

(E) Document a multiaxial DSM diagnosis;

(F) Write and supervise a Treatment Plan;

(G) Conduct a mental health assessment; and

(H) Provide individual, family, or group therapy within the scope of his or her practice.

(57) “Respite” means intermittent services provided on a periodic basis, but not more than 14 consecutive days, for the relief of, or due to the temporary absence of, persons normally providing the supports to individuals unable to care for themselves.

(58) “Revocation” means the action taken by the certifying agency to rescind a child foster home certificate of approval after determining that the child foster home is not in compliance with one or more of these rules.

(59) “Services Coordinator” means an employee of the Community Developmental Disability Program or the Department, who is selected to plan, procure, coordinate, monitor Individual Support Plan services, and to act as a proponent for individuals with developmental disabilities.

(60) “Significant Medical Needs” means but is not limited to total assistance required for all activities of daily living such as access to food or fluids, daily hygiene which is not attributable to the child’s chronological age, and frequent medical interventions required by the care plan for health and safety of the child.

(61) “Specialized Diet” means that the amount, type of ingredients, or selection of food or drink items is limited, restricted, or otherwise regulated under a physician’s order. Examples include but are not limited to low calorie, high fiber, diabetic, low salt, lactose free, or low fat diets.

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

(63) “Suspension of Certificate” means a temporary withdrawal of the approval to operate a child foster home after the certifying agency determines that the child foster home is not in compliance with one or more of these rules.

(64) “These Rules” mean the rules in OAR chapter 411, division 346.

(65) “Unauthorized Absence” means any length of time when a child is absent from the foster home without prior approval as specified on the Individual Support Plan.

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

(67) “Urgent Medical Need” means the onset of psychiatric symptoms requiring attention within 48 hours to prevent a serious deterioration in a child’s mental or physical condition.

(68) “Variance” means a temporary exemption from a regulation or provision of these rules that may be granted by the Department upon written application by the certifying agency.

(69) “Volunteer” means any person assisting in a child foster home without pay to support the care provided to a child placed in the child foster home.

Stat. Auth.: ORS 409.050, 410.070, 430.215, & 443.835

Stats. Implemented: ORS 443.830 & 443.835

Hist.: MHD 15-2000(Temp), f. & cert. ef. 11-30-00 thru 5-28-01; MHD 3-2001, f. 5-25-01, cert. ef. 5-28-01; Renumbered from 309-046-0110, SPD 34-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 10-2007, f. 6-27-07, cert. ef. 7-5-07; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 7-2010, f. 6-29-10, cert. ef. 7-1-10; SDP 6-2011(Temp), f. & cert. ef. 2-10-11 thru 8-1-11; SPD 15-2011, f. & cert. ef. 7-1-11

411-346-0150

General Requirements for Certification

(1) The applicant or foster provider must participate in certification and certification renewal studies and in the ongoing monitoring of their homes.

(2) The applicant or foster provider must give the information required by the Department to verify compliance with all applicable rules, including change of address and change of number of persons in the household such as relatives, employees, or volunteers.

(3) The applicant seeking certification from the Department must complete the Department application forms. When two or more adults living in the home share foster provider responsibilities to any degree, they must be listed on the application as applicant and co-applicant.

(4) The applicant must disclose each state or territory they have lived in the last five years and for a longer period if requested by the certifier. The disclosure must include the address, city, state, and zip code of previous residences.

(5) Information provided by the applicants must include:

(a) Names and addresses of any agencies in the United States where any occupant of the home has been licensed or certified to provide care to children or adults and the status of such license or certification. This may include but is not limited to licenses or certificates for residential care, nurse, nurse’s aide, and foster care;

(b) Proposed number, gender, age range, disability, and support needs of children to be served in foster care;

(c) School reports for any child of school age living in the home at the time of initial application. School reports for any child of school age living in the home within the last year may also be required;

(d) Names and addresses of at least four persons, three of whom are unrelated, who have known each applicant for two years or more and who can attest to their character and ability to care for children. The Department may contact schools, employers, adult children, and other sources as references;

(e) Reports of all criminal charges, arrests or convictions, the dates of offenses, and the resolution of those charges for all employees or volunteers and persons living in the home. If the applicant’s minor children shall be living in the home, the applicants must also list reports of all criminal or juvenile delinquency charges, arrests or convictions, the dates of offenses, and the resolution of those charges;

(f) Founded reports of child abuse or substantiated abuse, with dates, locations, and resolutions of those reports for all persons living in the home, as well as all applicant or provider employees, independent contractors, and volunteers;

(g) Demonstration, upon initial certification, of successful completion of 15 hours of pre-service training.

(h) Demonstration, upon initial certification, of income sufficient to meet the needs and to ensure the stability and financial security of the family independent of the foster care payment;

(i) All child support obligations in any state, whether the obligor is current with payments or in arrears, and whether any applicant’s or foster provider’s wages are being attached or garnished for any reason;

(j) A physician’s statement, on a form provided by the Department, that each applicant is physically and mentally capable of providing care;

(k) A floor plan of the house showing the location of:

(A) Rooms, indicating the bedrooms for the child in foster care, caregiver, and other occupants of the home;

(B) Windows;

(C) Exit doors;

(D) Smoke detectors and fire extinguishers; and

(E) Wheel chair ramps, if applicable; and

(l) A diagram of the house and property showing safety devices for fire places, wood stoves, water features, outside structures, and fencing.

(6) Falsification or omission of any of the information for certification may be grounds for denial or revocation of the child foster home certification.

(7) Applicants must be at least 21 years of age. Applicants who are “Indian,” as defined in the Indian Child Welfare Act, may be 18 years of age or older, if an Indian child to be placed is in the legal custody of DHS-CW.

(8) Applicants, providers, alternate caregivers, providers’ employees or volunteers, other occupants in the home who are 18 years or older, and other adults having regular contact in the home with a child in foster care or any subject individual as described in OAR 407-007-0200 to 407-007-0370 must consent to a background check by the Department, in accordance with OAR 407-007-0200 to 407-007-0370 (Background Check Rules) and under ORS 181.534. The Department may require a background check as defined in OAR 407-007-0210 on members of the household under 18 if there is reason to believe that a member may pose a risk to a child placed in the home. All persons subject to a background check as defined in OAR 407-007-0210 are required to complete an Oregon background check and a national background check, as described in OAR 407-007-0200 to 407-007-0370, including the use of fingerprint cards.

(a) Effective July 28, 2009, public funds may not be used to support, in whole or in part, a person described in section (8) of this rule in any capacity who has been convicted of any of the disqualifying crimes listed in OAR 407-007-0275.

(b) A person does not meet qualifications as described in this rule if the person has been convicted of any of the disqualifying crimes listed in OAR 407-007-0275.

(c) Section (8)(a) and (b) of this rule do not apply to employees hired prior to July 28, 2009 that remain in the current position for which the employee was hired.

(d) Any person as described in section (8) of this rule must self-report any potentially disqualifying condition as described in OAR 407-007-0280 and OAR 407-007-0290. The person must notify the Department or designee within 24 hours.

(9) The Department may not issue or renew a certificate if an applicant or member of the household:

(a) Has, after completing the Department’s background check as defined in OAR 407-007-0210, a fitness determination of “denied.”

(b) Has, at any time, been convicted of a felony in Oregon or any jurisdiction that involves:

(A) Child abuse or neglect;

(B) Spousal abuse;

(C) Criminal activity against children, including child pornography; or

(D) Rape, sexual assault, or homicide.

(c) Has, within the past five years from the date the background check as defined in OAR 407-007-0210 was signed been convicted of a felony in Oregon or any jurisdiction that involves:

(A) Physical assault or battery (other than against a spouse or child); or

(B) Any drug-related offense.

(d) Has been found to have abused or neglected a child or adult as defined in ORS 419B.005 or as listed in OAR 407-045-0260.

(e) Has, within the past five years from the date the child foster home application was signed, been found to have abused or neglected a child or adult in the United States as defined by that jurisdiction or any other jurisdiction.

(10) The applicant or foster provider may request to withdraw their application any time during the certification process by notifying the certifier in writing. Written documentation by the certifier of verbal notice may substitute for written notification.

(11) The Department may not issue or renew a certificate for a minimum of five years if the applicant is found to have a license or certificate to provide care to children or adults, suspended, revoked, or not renewed by other than voluntary request. This shall be grounds for suspension and revocation of the certificate.

(12) The Department may not issue or renew a certificate based on an evaluation of any negative references, school reports, physician’s statement, or previous licensing or certification reports from other agencies or states.

(13) A Department employee may be a foster provider, or an employee of an agency that contracts with the Department as a foster provider, if the employee’s position with the Department does not influence referral, regulation, or funding of such activities. Prior to engaging in such activity, the employee must obtain written approval from the Assistant Director of the Department. The written approval must be on file with the Assistant Director of the Department and in the Department’s certification file.

(14) An application is incomplete and void unless all supporting materials are submitted to the Department within 90 days from the date of the application.

(15) An application may not be considered complete until all required information is received and verified by the Department. Within 60 days upon receipt of the completed application, a decision shall be made by the Department to approve or deny certification.

(16) The Department shall determine compliance with these rules based on receipt of the completed application material, an investigation of information submitted, an inspection of the home, a completed home study, and a personal interview with the provider. A certificate issued on or after February 1, 2010 shall be valid for a maximum of two years, unless revoked or suspended.

(17) The Department may attach conditions to the certificate that limit, restrict, or specify other criteria for operation of the child foster home.

(18) A condition may be attached to the certificate that limits the provider to the care of a specific child. No other referrals shall be made to a provider with this limitation.

(19) A child foster home certificate is not transferable or applicable to any location or persons other than those specified on the certificate.

(20) The foster provider who cares for a child funded by the Department must enter into a contract with the Department and follow the Department rules governing reimbursement for services and refunds.

(21) The foster provider may not be the parent or legal guardian of any child placed in their home for foster care services funded by the Department.

(22) If the applicant or foster provider intends to provide care for a child with significant medical needs then at least one provider or applicant must have the following:

(a) An equivalent of one year of full-time experience in providing direct care to individuals;

(b) Health care professional qualifications.

(A) Such as a registered nurse (RN) or licensed practical nurse (LPN); or

(B) Has the equivalent of two additional years full-time experience providing care and support to an individual who has a medical condition that is serious and could be life-threatening;

(c) Copies of all current health related license or certificates and provide those documents to the certifying agent;

(d) Current certification in First Aid and Cardiopulmonary Resuscitation (CPR). The CPR training must be done by a recognized training agency and the CPR certificate must be appropriate to the ages of the child served in the foster home;

(e) Current satisfactory references from at least two medical professionals, such as a physician and registered nurse, who have direct knowledge of the applicant’s ability and past experiences as a caregiver. The medical professional references serve as two of the four references in section (5)(d) of this rule; and

(f) Positive written recommendation from the Department’s Medically Fragile Children’s Unit (MFCU) if the provider or applicant has provided services through the program or if the provider or applicant has historically received services through the program for a child in their family home or foster home.

(23) A foster provider may not accept a child with significant medical needs unless an initial care plan addressing the health and safety supports is in place at the time of placement.

Stat. Auth.: ORS 409.050, 410.070, 430.215, & 443.835

Stats. Implemented: ORS 443.830 & 443.835

Hist.: MHD 15-2000(Temp), f. & cert. ef. 11-30-00 thru 5-28-01; MHD 3-2001, f. 5-25-01, cert. ef. 5-28-01; Renumbered from 309-046-0150, SPD 34-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 10-2007, f. 6-27-07, cert. ef. 7-5-07; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 2-2010(Temp), f. & cert. ef. 3-18-10 thru 6-30-10; SPD 7-2010, f. 6-29-10, cert. ef. 7-1-10; SDP 6-2011(Temp), f. & cert. ef. 2-10-11 thru 8-1-11; SPD 15-2011, f. & cert. ef. 7-1-11

411-346-0160

Renewal of Certificate

(1) At least 90 days prior to the expiration of a certificate, the Department shall send a reminder notice and application for renewal to the currently certified provider. Submittal of a renewal application prior to the expiration date keeps the certificate in effect until the Department takes action. If the renewal application is not submitted prior to the expiration date, the child foster home shall be treated as an uncertified home.

(2) The certification renewal process includes the renewal application and the same supporting documentation as required for a new certification. With the discretion of the certifier, a financial statement, physician statement, and floor plan may not be required.

(3) Copies of the services coordinator’s monitoring check list or recommendations from the services coordinators who have had children in the home within the last year may be requested at time of certification renewal.

(4) School reports may not be required if the Department or the certifier reasonably assumes this information has not changed or is not necessary.

(5) The Department or the certifier may investigate any information in the renewal application and shall conduct a home inspection.

(6) The provider shall be given a copy of the inspection form documenting any deficiencies and a time frame to correct deficiencies. Deficiencies must be corrected no longer than 60 days from the date of inspection. If documented deficiencies are not corrected within the time frame specified, the renewal application shall be denied.

(7) Applicants, providers, providers’ substitute caregivers, employees, volunteers, and any other occupants in the home 18 years of age and older must submit to an Oregon background check as defined in OAR 407-007-0210 and must continue to meet all certification standards as outlined in these rules.

(8) Each foster provider must provide documentation of a minimum of 10 hours of Department approved training per year prior to the renewal of the certificate. A mutually agreed upon training plan may be part of the re-certification process.

(9) When serving children with significant medical needs, the foster provider must have a minimum of six of the ten hours of annual training requirements in specific medical training beyond First Aid and CPR. The CPR training must be done by a recognized training agency and the CPR certificate must be appropriate to the ages of the children served in the foster home.

Stat. Auth.: ORS 409.050, 410.070, 430.215, & 443.835

Stats. Implemented: ORS 443.830 & 443.835

Hist.: MHD 15-2000(Temp), f. & cert. ef. 11-30-00 thru 5-28-01; MHD 3-2001, f. 5-25-01, cert. ef. 5-28-01; Renumbered from 309-046-0160, SPD 34-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 10-2007, f. 6-27-07, cert. ef. 7-5-07; SPD 7-2010, f. 6-29-10, cert. ef. 7-1-10; SDP 6-2011(Temp), f. & cert. ef. 2-10-11 thru 8-1-11; SPD 15-2011, f. & cert. ef. 7-1-11

411-346-0165

Emergency Certification

(1) An emergency certificate may be issued by the Department for up to 30 days, provided the following conditions are met:

(a) An Oregon background check as defined in OAR 407-007-0210 indicates no immediate need for fingerprinting for all persons living in the home;

(b) A DHS-CW background check identifies no founded reports of child abuse committed by persons living in the home;

(c) Applicant has no previous revocations or suspensions of any license or certificate by any issuing agency for a foster home, group home, or any other care or support services;

(d) A review of support enforcement obligations and public assistance cases identifies no substantial financial concerns;

(e) An application and two references are submitted;

(f) An abbreviated home study is done; and

(g) A satisfactory home inspection and a Health and Safety Checklist are completed.

(2) When a child with significant medical needs shall be living in the foster home, the following additional requirements must be met before an emergency certificate may be issued:

(a) Current satisfactory references from at least two medical professionals, such as a physician and registered nurse, who have direct knowledge of the applicant’s ability and past experiences as a caregiver; AND

(b) A positive written recommendation from the Department’s Medically Fragile Children’s Unit (MFCU) if the provider or applicant has provided services through the program or has historically received services through the program for a child in their family home or foster home; AND

(c) Current certification in First Aid and CPR. The CPR training must be done by a recognized training agency and the CPR certificate must be appropriate to the ages of the children served in the foster home; AND

(d) Copies of all current medical related licenses or certificates must be provided to the certifier; AND

(e) Six hours of medical training beyond CPR and First Aid training as appropriate to the ages of the children served in the foster home; OR

(f) Licensed as a registered nurse, licensed practical nurse, emergency medical technician, nurse practitioner, or physician’s assistant.

(3) Emergency certificates may be issued if the renewal process is incomplete at the time of the renewal.

Stat. Auth.: ORS 409.050, 410.070, 430.215, & 443.835

Stats. Implemented: ORS 443.830 & 443.835

Hist.: SPD 34-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 10-2007, f. 6-27-07, cert. ef. 7-5-07; SPD 7-2010, f. 6-29-10, cert. ef. 7-1-10; SDP 6-2011(Temp), f. & cert. ef. 2-10-11 thru 8-1-11; SPD 15-2011, f. & cert. ef. 7-1-11

411-346-0190

Standards and Practices for Care and Services

(1) The foster provider must:

(a) Provide structure and daily activities designed to promote the physical, social, intellectual, cultural, spiritual, and emotional development of the child in their home.

(b) Provide playthings and activities in the foster home, including games, recreational and educational materials, and books appropriate to the chronological age, culture, and developmental level of the child.

(c) In accordance with the ISP and if applicable as defined in the DHS-CW case plan, encourage the child to participate in community activities with family, friends, and on their own when appropriate.

(d) Promote the child’s independence and self-sufficiency by encouraging and assisting the child to develop new skills and perform age-appropriate tasks.

(e) In accordance with the ISP and if applicable as defined in the DHS-CW case plan, ask the child in foster care to participate in household chores appropriate to the child’s age and ability that commensurate with those expected of the provider’s own children.

(f) Provide the child with reasonable access to a telephone and to writing materials.

(g) In accordance with the ISP and if applicable as defined in the DHS-CW Case Plan, permit and encourage the child to have visits with family and friends.

(h) Allow regular contacts and private visits or phone calls with the child’s CDDP services coordinator and if applicable the DHS-CW case worker.

(i) Not allow a child in foster care to baby-sit in the foster home or elsewhere without permission of the child’s CDDP services coordinator and the guardian.

(2) RELIGIOUS, ETHNIC, AND CULTURAL HERITAGE.

(a) The foster provider must recognize, encourage, and support the religious beliefs, ethnic heritage, cultural identity, and language of a child and the child’s family.

(b) In accordance with the ISP and guardian preferences, the foster provider must participate with the ISP team to arrange transportation and appropriate supervision during religious services or ethnic events for a child whose beliefs and practices are different from those of the provider.

(c) The foster provider may not require a child to participate in religious activities or ethnic events contrary to the child’s beliefs.

(3) EDUCATION. The foster provider:

(a) Must enroll each child of school age in public school, within five school days of the placement, and arrange for transportation.

(b) Must comply with any Alternative Educational Plan described in the child’s IEP.

(c) Must be actively involved in the child’s school program and must participate in the development of the child’s IEP. The foster provider may apply to be the child’s educational surrogate if requested by the parent or guardian.

(d) Must consult with school personnel when there are issues with the child in school and report to the guardian and CDDP services coordinator any serious situations that may require Department involvement.

(e) Must support the child in his or her school or educational placement.

(f) Must assure the child regularly attends school or educational placement and monitor the child’s educational progress.

(g) May sign consent to the following school related activities:

(A) School field trips within the state of Oregon;

(B) Routine social events;

(C) Sporting events;

(D) Cultural events; and

(E) School pictures for personal use only unless prohibited by the court or legal guardian.

(4) ALTERNATE CAREGIVERS.

(a) The foster provider must arrange for safe and responsible alternate care.

(b) A Child Care Plan for a child in foster care must be approved by the Department, the CDDP, or DHS-CW before it is implemented. When a child is cared for by a child care provider or child care center, the provider or center must be certified as required by the State Child Care Division (ORS 657A.280) or be a certified foster provider.

(c) The foster provider must have a Respite Plan approved by the certifier or the Department when using alternate caregivers.

(d) The foster provider must assure the alternate caregivers, consultants, and volunteers are:

(A) 18 years of age or older;

(B) Capable of assuming foster care responsibilities;

(C) Present in the home;

(D) Physically and mentally capable to perform the duties of the foster provider as described in these rules;

(E) Cleared by a background check as described in OAR 411-346-0150(8) including a DHS-CW background check;

(F) Able to communicate with the child, individuals, agencies providing care to the child, CDDP services coordinator, and appropriate others;

(G) Trained on fire safety and emergency procedures;

(H) Trained on the child’s ISP, Behavior Support Plan, and any related protocols and able to provide the care needed for the child;

(I) Trained on the required documentation for health, safety, and behavioral needs of the child;

(J) A licensed driver and with vehicle insurance in compliance with the Oregon DMV laws when transporting children by motorized vehicle; and

(K) Not be a person who requires care in a foster care or group home.

(e) When the foster provider uses an alternate caregiver and the child shall be staying at the alternate caregiver’s home, the foster provider must assure the alternate caregiver’s home meets the necessary health, safety, and environmental needs of the child.

(f) When the foster provider arranges for social activities of the child for less than 24 hours, including an overnight arrangement, the foster provider must assure that the person shall be responsible and capable of assuming child care responsibilities and be present at all times. The foster provider still maintains primary responsibility for the child.

(5) FOOD AND NUTRITION.

(a) The foster provider must offer three nutritious meals daily at times consistent with those in the community.

(A) Daily meals must include food from the four basic food groups, including fresh fruits and vegetables in season, unless otherwise specified in writing by a physician or physician assistant.

(B) There must be no more than a 14-hour span between the evening meal and breakfast unless snacks and liquids are served as supplements.

(C) Consideration must be given to cultural and ethnic background in food preparation.

(b) Any home canned food used must be processed according to current guidelines of Oregon State University extension services (http://extension.oregonstate.edu/fch/food-preservation).

(c) All food items must be used prior to the item’s expiration date.

(d) The foster provider must implement specialized diets only as prescribed in writing by the child’s physician or physician assistant.

(e) The foster provider must prepare and serve meals in the foster home where the child lives. Payment for meals eaten away from the foster home (e.g. restaurants) for the convenience of the foster provider is the responsibility of the foster provider.

(f) The foster provider, when serving milk, must only use pasteurized liquid or powdered milk for consumption by a child in foster care.

(g) A child who must be bottle-fed and cannot hold the bottle, or is 11 months or younger, must be held during bottle-feeding.

(6) CLOTHING AND PERSONAL BELONGINGS.

(a) The foster provider must assure that each child has his or her own clean, well-fitting, seasonal clothing appropriate to age, gender, culture, individual needs, and comparable to the community standards.

(b) A school-age child must participate in choosing their own clothing whenever possible.

(c) The foster provider must allow a child to bring and acquire appropriate personal belongings.

(d) The foster provider must assure that when a child leaves the child foster home, the child’s belongings including all personal funds, medications, and personal items remain with the child. This includes all items brought with the child and obtained while living in the home.

(7) BEHAVIOR SUPPORT AND DISCIPLINE PRACTICES.

(a) The foster provider must teach and discipline a child with respect, kindness, and understanding, using positive behavior management techniques. Unacceptable practices include but are not limited to:

(A) Physical force, spanking, or threat of physical force inflicted in any manner upon the child;

(B) Verbal abuse, including derogatory remarks about the child or the child’s family that undermine a child’s self-respect;

(C) Denial of food, clothing, or shelter;

(D) Denial of visits or contacts with family members, except when otherwise indicated in the ISP or if applicable the DHS-CW case plan;

(E) Assignment of extremely strenuous exercise or work;

(F) Threatened or unauthorized use of physical interventions;

(G) Threatened or unauthorized use of mechanical restraints;

(H) Punishment for bed-wetting or punishment related to toilet training;

(I) Delegating or permitting punishment of a child by another child;

(J) Threat of removal from the foster home as a punishment;

(K) Use of shower or aversive stimuli as punishment; and

(L) Group discipline for misbehavior of one child.

(b) The foster provider must set clear expectations, limits, and consequences of behavior in a non-punitive manner.

(c) If time-out separation from others is used to manage behavior, it must be included on the child’s ISP and the foster provider must provide it in an unlocked, lighted, well-ventilated room of at least 50 square feet. The ISP must include whether the child needs to be within hearing distance or within sight of an adult during the time-out. The time limit must take into consideration the child’s chronological age, emotional condition, and developmental level. Time-out is to be used for short duration and frequency as approved by ISP team.

(d) No child in foster care or other child in a foster home shall be subjected to physical abuse, sexual abuse, sexual exploitation, neglect, emotional abuse, mental injury, or threats of harm as defined in ORS 419B.005 and OAR 407-045-0260.

(e) BEHAVIOR SUPPORT PLAN (BSP). For a child who has demonstrated a serious threat to self, others, or property and for whom it has been decided a BSP is needed, the BSP must be developed with the approval of the ISP team.

(f) PROTECTIVE PHYSICAL INTERVENTION. A protective physical intervention must be used only for health and safety reasons and under the following conditions:

(A) As part of the child’s ISP team approved BSP.

(i) When protective physical intervention shall be employed as part of the BSP, the foster provider and alternate caregivers must complete OIS training prior to the implementation of the BSP.

(ii) The use of any modified OIS protective physical intervention must have approval from the OIS Steering Committee in writing prior to their implementation. Documentation of the approval must be maintained in the child’s records.

(B) As in a health-related protection prescribed by a physician or qualified health care provider, but only if absolutely necessary during the conduct of a specific medical or surgical procedure, or only if absolutely necessary for protection during the time that a medical condition exists.

(C) As an emergency measure if absolutely necessary to protect the child or others from immediate injury and only until the child is no longer an immediate threat to self or others.

(g) MECHANICAL RESTRAINT.

(A) The foster provider may not use mechanical restraints on a child in foster care other than car seat belts or normally acceptable infant safety products unless ordered by a physician or health care provider and with an agreement of the ISP team.

(B) The foster provider must maintain the original order in the child’s records and forward a copy to the CDDP services coordinator and guardian.

(h) DOCUMENTATION AND NOTIFICATION OF USE OF PROTECTIVE PHYSICAL INTERVENTION.

(A) The foster provider must document the use of all protective physical interventions or mechanical restraints in an incident report. A copy of the incident report must be provided to the CDDP services coordinator and guardian.

(B) If an approved protective physical intervention is used, the foster provider must send a copy of the incident report within five working days to the services coordinator and guardian.

(C) If an emergency or non ISP team approved protective physical intervention is used, the foster provider must send a copy of the incident report within 24 hours to the services coordinator and guardian. The foster provider must make verbal notification to the CDDP services coordinator and guardian no later than the next working day.

(D) The original incident report must be on file with the foster provider in the child’s records.

(E) The incident report must include:

(i) The name of the child to whom the protective physical intervention was applied;

(ii) The date, location, type, and duration of entire incident and protective physical intervention;

(iii) The name of the provider and witnesses or persons involved in applying the protective physical intervention;

(iv) The name and position of the person notified regarding the use of the protective physical intervention; and

(v) A description of the incident, including precipitating factors, preventive techniques applied, description of the environment, description of any physical injury resulting from the incident, and follow-up recommendations.

(8) MEDICAL AND DENTAL CARE. The foster provider must:

(a) Provide care and services, as appropriate to the child’s chronological age, developmental level, and condition of the child, and as identified in the ISP.

(b) Assure that physician or qualified health care provider orders and those of other licensed medical professionals are implemented as written.

(c) Inform the child’s physicians or qualified health care providers of current medications and changes in health status and if the child refuses care, treatments, or medications.

(d) Inform the guardian and CDDP services coordinator of any changes in the child’s health status except as otherwise indicated in the DHS-CW Permanent Foster Care contract agreement and as agreed upon in the child’s ISP.

(e) Obtain the necessary medical, dental, therapies, and other treatments of care including but not limited to:

(A) Making appointments;

(B) Arranging for or providing transportation to appointments; and

(C) Obtaining emergency medical care.

(f) Have prior consent from the guardian for medical treatment that is not routine, including surgery and anesthesia except in cases where a DHS-CW Permanent Foster Care contract agreement exists.

(g) Keep current medical records. The records must include, when applicable:

(A) Any history of physical, emotional, and medical problems, illnesses, or mental health status;

(B) Current orders for all medications, treatments, therapies, use of protective physical intervention, specialized diets, adaptive equipment, and any known food or medication allergies;

(C) Completed medication administration record (MAR) from previous months;

(D) Pertinent medical and behavioral information such as hospitalizations, accidents, immunization records including Hepatitis B status and previous TB tests, and incidents or injuries affecting the health, safety, or emotional well-being of the child;

(E) Documentation or other notations of guardian consent for medical treatment that is not routine including surgery and anesthesia;

(F) Record of medical appointments;

(G) Medical appointment follow-up reports provided to the foster provider; and

(H) Copies of previous mental health assessments, assessment updates including multi-axial DSM diagnosis and treatment recommendations, and progress records from mental health treatment services.

(h) Provide, when requested, copies of medical records and medication administration records to the child’s legal guardian, services coordinator, and DHS-CW caseworker.

(i) Provide copies, as applicable, of the medical records described in section (8)(g)(H) above to the licensed medical professional prior to the medical appointment or no later than the time of the appointment with the licensed medical professional.

(9) MEDICATIONS AND PHYSICIAN OR QUALIFIED HEALTH CARE PROVIDER ORDERS.

(a) There must be authorization by a physician or qualified health care provider in the child’s file prior to the usage of or implementation of any of the following:

(A) All prescription medications;

(B) Non prescription medications except over the counter topicals;

(C) Treatments other than basic first aid;

(D) Therapies and use of mechanical restraint as a health and safety related protection;

(E) Modified or specialized diets;

(F) Prescribed adaptive equipment; and

(G) Aids to physical functioning.

(b) The foster provider must have:

(A) A copy of an authorization in the format of a written order signed by a physician or a qualified health care provider; or

(B) Documentation of a telephone order by a physician or qualified health care provider with changes clearly documented on the MAR, including the name of the person giving the order, the date and time, and the name of the person receiving the telephone order; or

(C) A current pharmacist prescription or manufacturer’s label as specified by the physician’s order on file with the pharmacy.

(c) A provider or alternate caregiver must carry out orders as prescribed by a physician or a qualified health care provider. Changes may not be made without a physician or a qualified health care provider’s authorization.

(d) Each child’s medication, including refrigerated medication, must be clearly labeled with the pharmacist’s label, or in the manufacturer’s originally labeled container, and kept in a locked location, or stored in a manner that prevents access by children.

(e) Unused, outdated, or recalled medications may not be kept in the foster home and must be disposed of in a manner that shall prevent illegal diversion into the possession of people other than for which it was prescribed.

(f) The foster provider must keep a MAR for each child. The MAR must be kept for all medications administered by the foster provider or alternate caregiver to that child, including over the counter medications and medications ordered by physicians or qualified health care providers and administered as needed (PRN) for the child.

(g) The MAR must include:

(A) The name of the child in foster care;

(B) A transcription of the written physician’s or licensed health practitioner’s order including the brand or generic name of the medication, prescribed dosage, frequency, and method of administration;

(C) A transcription of the printed instructions from the package for topical medications and treatments without a physician’s order;

(D) Times and dates of administration or self-administration of the medication;

(E) Signature of the person administering the medication or the person monitoring the self-administration of the medication;

(F) Method of administration;

(G) An explanation of why a PRN medication was administered;

(H) Documented effectiveness of any PRN medication administration;

(I) An explanation of all medication administration or documentation irregularities; and

(J) Any known allergy or adverse drug reactions and procedures that maintain and protect the physical health of the child placed in the foster home.

(h) Any errors in the MAR must be corrected by circling the error and then writing on the back of the MAR what the error was and why.

(i) Treatments, medication, therapies, and specialized diets must be documented on the MAR when not used or applied according to the order.

(j) SELF-ADMINISTRATION OF MEDICATION. For any child who is self-administering medication, the foster provider must:

(A) Have documentation that a training program was initiated with approval of the child’s ISP team or that training for the child was unnecessary;

(B) Have a training program that provides for retraining when there is a change in dosage, medication, and time of delivery;

(C) Provide for an annual review, at a minimum as part of the ISP process, upon completion of the training program;

(D) Assure that the child is able to handle his or her own medication regime;

(E) Keep medications stored in a locked area inaccessible to others; and

(F) Maintain written documentation of all training in the child’s medical record.

(k) The foster provider may not use alternative medications intended to alter or affect mood or behavior, such as herbals or homeopathic remedies, without direction and supervision of a licensed medical professional.

(l) Any medication that is used with the intent to alter behavior of a child with a developmental disability must be documented on the ISP.

(m) BALANCING TEST. When a psychotropic medication is first prescribed and annually thereafter, the foster provider must obtain a signed balancing test from the prescribing health care provider using the Department’s Balancing Test Form. Foster providers must present the physician or health care provider with a full and clear description of the behavior and symptoms to be addressed as well as any side effects observed.

(n) PRN prescribed psychotropic medication is prohibited.

(o) A mental health assessment by a qualified mental health professional or licensed medical professional must be completed, except as noted in subsection (A) of this section, prior to the administration of a new medication for more than one psychotropic or any antipsychotic medication to a child in foster care.

(A) A mental health assessment is not required in the following situations:

(i) In a case of urgent medical need;

(ii) For a substitution of a current medication within the same class; or

(iii) A medication order given prior to a medical procedure; or

(B) When a mental health assessment is required, the foster provider:

(i) Must notify the DHS-CW caseworker when the child is in legal custody of DHS-CW worker; or

(ii) Shall arrange for a mental health assessment when the child is a voluntary care placement.

(C) The mental health assessment:

(i) Must have been completed within three months prior to the prescription; or

(ii) May be an update of a prior mental health assessment that focuses on a new or acute problem.

(D) Whenever possible, information from the mental health assessment must be communicated to the licensed medical professional prior to the issuance of a prescription for psychotropic medication.

(p) Within one business day after receiving a new prescription or knowledge of a new prescription for psychotropic medication for the child in foster care, the foster provider must notify:

(A) The child’s parent when the parent retains legal guardianship;

(B) The child’s family member or the person who has legal guardianship; or

(C) DHS-CW when DHS-CW is the legal guardian of the child; and

(D) The CDDP services coordinator.

(q) The notification from the foster provider to the legal guardian and the CDDP services coordinator must contain:

(A) The name of the prescribing physician, or qualified health care provider;

(B) The name of the medication;

(C) The dosage, any change of dosage or suspension, or discontinuation of the current psychotropic medication;

(D) The dosage administration schedule prescribed; and

(E) The reason the medication was prescribed.

(r) The foster provider must get a written informed consent prior to filling a prescription for any new psychotropic medication except in a case of urgent medical need from DHS-CW when DHS-CW is the legal guardian.

(s) The foster provider shall cooperate as requested, when a review of psychotropic medications is indicated.

(10) DIRECT NURSING SERVICES.

(a) When direct nursing services are provided to a child the foster provider must:

(A) Coordinate with the nurse and the ISP team to ensure that the services being provided are sufficient to meet the child’s health needs; and

(B) Implement the Nursing Care Plan, or appropriate portions therein, as agreed upon by the ISP team and the registered nurse.

(b) When nursing tasks are delegated, they must be delegated by a licensed registered nurse in accordance with OAR chapter 851, division 047.

(11) CHILD RECORDS.

(a) GENERAL INFORMATION OR SUMMARY RECORD. The provider must maintain a record for each child in the home. The record must include:

(A) The child’s name, date of entry into the foster home, date of birth, gender, religious preference, and guardianship status;

(B) The names, addresses, and telephone numbers of the child’s guardian, family, advocate, or other significant person;

(C) The name, address, and telephone number of the child’s preferred primary health provider, designated back up health care provider and clinic, dentist, preferred hospital, medical card number and any private insurance information, and Oregon Health Plan choice;

(D) The name, address, and telephone number of the child’s school program; and

(E) The name, address, and telephone number of the CDDP services coordinator and representatives of other agencies providing services to the child.

(b) EMERGENCY INFORMATION. The foster provider must maintain emergency information for each child receiving foster care services in the child foster home. The emergency information must be kept current and must include:

(A) The child’s name;

(B) The child’s address and telephone number;

(C) The child’s physical description which may include a picture and the date it was taken, and identification of:

(i) The child’s race, gender, height, weight range, hair and eye color; and

(ii) Any other identifying characteristics that may assist in identifying the child should the need arise, such as marks or scars, tattoos, or body piercing.

(D) Information on the child’s abilities and characteristics including:

(i) How the child communicates;

(ii) The language the child uses or understands;

(iii) The ability of the child to know how to take care of bodily functions; and

(iv) Any additional information that could assist a person not familiar with the child to understand what the child can do for him or herself.

(E) The child’s health support needs including:

(i) Diagnosis;

(ii) Allergies or adverse drug reactions;

(iii) Health issues that a person would need to know when taking care of the child;

(iv) Special dietary or nutritional needs such as requirements around textures or consistency of foods and fluids;

(v) Food or fluid limitations, due to allergies, diagnosis, or medications the child is taking that may be an aspiration risk or other risk for the child;

(vi) Additional special requirements the child has related to eating or drinking, such as special positional needs or a specific way foods or fluids are given to the child;

(vii) Physical limitations that may affect the child’s ability to communicate, respond for instructions, or follow directions;

(viii) Specialized equipment needed for mobility, positioning, or other health related needs;

(ix) The child’s emotional and behavioral support needs including:

(I) Mental health or behavioral diagnosis and the behaviors displayed by the child; and

(II) Approaches to use when supporting the child to minimize emotional and physical outbursts.

(x) Any court ordered or guardian authorized contacts or limitations;

(xi) The child’s supervisions requirements and why; and

(xii) Any additional pertinent information the provider has that may assist in the care and support of the child should a natural or man-made disaster occur.

(c) EMERGENCY PLANNING. The foster provider must post emergency telephone numbers in close proximity to all phones utilized by the foster provider or substitute caregivers. The posted emergency telephone numbers must include:

(A) Telephone numbers of the local fire, police department, and ambulance service if not served by a 911 emergency services; and

(B) The telephone number of any emergency physician and additional persons to be contacted in the case of an emergency.

(d) WRITTEN EMERGENCY PLAN.

(A) Foster providers must develop, maintain, update, and implement a written Emergency Plan for the protection of all children in foster care in the event of an emergency or disaster. The Emergency Plan must:

(i) Be practiced at least annually. The Emergency Plan practice may consist of a walk-through of the provider’s and alternative caregiver’s responsibilities.

(ii) Consider the needs of the child and address all natural and human-caused events identified as a significant risk for the home such as a pandemic or an earthquake.

(iii) Include provisions and sufficient supplies, such as sanitation and food supplies, to shelter in place, when unable to relocate, for a minimum of three days under the following conditions:

(I) Extended utility outage;

(II) No running water;

(III) Inability to replace food supplies; and

(IV) Alternative caregiver is unable provide respite or additional support and care.

(iv) Include provisions for evacuation and relocation that identifies:

(I) The duties of the alternative caregivers during evacuation, transporting, and housing of the child including instructions to notify the child’s parent or legal guardian, the Department or designee, the CDDP services coordinator, and DHS-CW as applicable, of the plan to evacuate or the evacuation of the home as soon as the emergency or disaster reasonably allows;

(II) The method and source of transportation;

(III) Planned relocation sites that are reasonably anticipated to meet the needs of the child;

(IV) A method that provides persons unknown to the child the ability to identify each child by the child’s name, and to identify the name of the child’s supporting provider; and

(V) A method for tracking and reporting to the Department or the Department’s designee and the local CDDP, the physical location of each child in foster care until a different entity resumes responsibility for the child,

(v) Address the needs of the child including provisions to provide:

(I) Immediate and continued access to medical treatment, information necessary to obtain care, treatment, food, and fluids for the child, during and after an evacuation and relocation;

(II) Continued access to life sustaining pharmaceuticals, medical supplies, and equipment during and after an evacuation and relocation;

(III) Behavior support needs anticipated during an emergency; and

(IV) The supports needed to meet the life-sustaining and safety needs of the child.

(B) The foster provider must provide and document all training to alternative caregivers regarding their responsibilities for implementing the emergency plan.

(C) The foster provider must re-evaluate and revise the Emergency Plan at least annually or when there is a significant change in the home.

(D) The foster provider must complete the Emergency Plan Summary, on the form supplied by the Department, and must send it to the Department annually and upon change of licensee or location of the child foster home.

(e) INDIVIDUAL SUPPORT PLAN (ISP). Within 60 days of placement, the child’s ISP must be prepared by the ISP team and, at a minimum, updated annually.

(A) The foster provider must participate with the ISP team in the development and implementation of the ISP to address each child’s behavior, medical, social, financial, safety, and other support needs.

(B) Prior to or upon entry to or exit from the foster home, the foster provider must participate in the development and implementation of a Transition Plan for the child.

(i) The Transition Plan must include a summary of the services necessary to facilitate the adjustment of the child to the foster home or after care plan; and

(ii) Identify the supports necessary to ensure health, safety, and any assessments and consultations needed for ISP development.

(f) FINANCIAL RECORDS.

(A) The foster provider must maintain a separate financial record for each child. Errors must be corrected with a single strike through and initialed by the person making the correction. The financial record must include:

(i) The date, amount, and source of all income received on behalf of the child;

(ii) The room and board fee that is paid to the provider at the beginning of each month;

(iii) The date, amounts, and purpose of funds disbursed on behalf of the child; and

(iv) The signature of the person making the entry.

(B) Any single transaction over $25 purchased with the child’s personal funds, unless otherwise indicated in the child’s ISP, must be documented including receipts in the child’s financial record.

(C) The child’s ISP team may address how the child’s personal spending money shall be managed.

(D) If the child has a separate commercial bank account, records from that account must be maintained with the financial record.

(E) The child’s personal funds must be maintained in a safe manner and separate from other members of the household funds.

(F) Misuse of funds may be cause for suspension, revocation, or denial of renewal of the child foster home certificate.

(g) PERSONAL PROPERTY RECORD.

(A) The foster provider must maintain a written record of each child’s property of monetary value of more than $25 or that has significant personal value to the child, parent, or guardian, or as determined by the ISP team. Errors must be corrected with a single strike through and initialed by the person making the correction.

(B) Personal property records are not required for children who have a court approved Permanent Foster Care contract agreement unless requested by the child’s guardian.

(C) The personal property record must include:

(i) The description and identifying number, if any;

(ii) The date when the child brought in the personal property or made a new purchase;

(iii) The date and reason for the removal from the record; and