Oregon Bulletin
Rule
Caption: Health Professionals’ Services
Program
Adm.
Order No.: ADS 3-2011
Filed with Sec. of
State: 8-16-2011
Certified to be
Effective: 8-16-11
Notice Publication
Date: 7-1-2011
Rules Amended: 415-065-0010, 415-065-0015, 415-065-0055
Subject: This rule activity adds a definition for “comply
continuously” and one subsection to existing rules related to a statewide
health professionals’ monitoring program for licensees of participating health
licensing boards, as required by ORS 676.190, who are unable to practice with
professional skill and safety due to substance use disorders, mental health
disorders of both types of disorders.
The new
subsection will authorize the treatment vendor, upon receipt of a court order,
to release identifying information to a licensee’s board, including a report of
substantial noncompliance, if a licensee has revoked his or her consent to
release information.
Rules Coordinator: Richard Luthe—(503) 947-1186
415-065-0010
Definitions
The following terms mean:
(1) “Admitted to the hospital for mental illness” for
purposes of ORS 676.190 means admitted to the hospital for treatment of a
mental health disorder that gives rise to concerns about the licensee’s ability
or willingness to participate in the program. Admission for evaluation or
diagnosis does not constitute being admitted to the hospital for mental
illness.
(2) “Assessment or evaluation” means the process an
independent third-party evaluator uses to diagnose the licensee and to
recommend treatment options for the licensee.
(3) “Board” means a health professional regulatory board
as defined in ORS 676.160 or the Oregon Health Licensing Agency for a board,
council or program listed in 676.606.
(4) “Business day” means Monday through Friday, 8:00
a.m. to 5:00 p.m. Pacific Time, except legal holidays as defined in ORS 187.010
or 187.020.
(5) “Comply Continuously” means to have been:
(a) Enrolled in the program for at least two
uninterrupted years without any reports of substantial noncompliance involving
significant violations of the monitoring agreement and
(b) Deemed by the vendor if self-referred, or by the
licensee’s board if board referred, to have otherwise successfully complied
with all terms of the monitoring agreement.
(6) “Diagnosis” means the principal mental health or
substance use diagnosis listed in the DSM. The diagnosis is determined through
the assessment and any examinations, tests or consultations suggested by the
assessment and is the medically appropriate reason for services.
(7) “Division” means the Oregon Health Authority, Addictions
and Mental Health Division.
(8) “DSM” means the Diagnostic and Statistical Manual
of Mental Disorders-IV-R, published by the American Psychiatric Association.
(9) “Family” means any natural, formal, or informal
support persons identified as important by the licensee.
(10) “Federal regulations” means:
(a) As used in ORS 676.190(1)(f)(D), a “positive
toxicology test result as determined by federal regulations pertaining to drug
testing” means test results meet or exceed the cutoff concentrations shown in
49 CFR § 40.87 (2009) for the substances listed there.
(b) As used in ORS 676.190(4)(i), requiring a “licensee
to submit to random drug or alcohol testing in accordance with federal
regulations” means licensees are selected for random testing by a
scientifically valid method, such as a random number table or a computer-based
random number generator that is matched with licensees’ unique identification
numbers or other comparable identifying numbers. Under the selection process
used, each covered licensee shall have an equal chance of being tested each
time selections are made, as described in 49 CFR § 199.105(c)(5)(2009). Random
drug tests must be unannounced and the dates for administering random tests
must be spread reasonably throughout the calendar year, as described in 49 CFR §
199.105(c)(7)(2009).
(11) “Fitness to practice evaluation” means the process
a qualified, independent third-party evaluator uses to determine if the
licensee can safely perform the essential functions of the licensee’s health
practice.
(12) “Independent third-party evaluator” means an
individual who is approved by a licensee’s board to evaluate, diagnose, and
offer treatment options for substance use disorders, mental health disorders,
or co-occurring disorders.
(13) “Individual service record” means the official
permanent program documentation, written or electronic, for each licensee,
which contains all information required by these rules and maintained by the
program to demonstrate compliance with these rules
(14) “Licensee” means a health professional who is
licensed or certified by or registered with a board and the professional is
receiving services in the program under these rules.
(15) “Mental health disorder” means a clinically
significant behavioral or psychological syndrome or pattern that occurs in an
individual and that is associated with present distress or disability or with a
significantly increased risk of suffering death, pain, disability, or an
important loss of freedom that is identified in the DSM. “Mental health
disorder” includes gambling disorders.
(16) “Monitoring agreement” means an individualized
agreement between a licensee and the vendor that meets the requirements for a
diversion agreement set by ORS 676.190.
(17) “Monitoring Entity” means an independent
third-party that monitors licensees’ program enrollment status and monitoring
agreement compliance.
(18) “Non-treatment compliance monitoring” means the
non-medical, non-therapeutic services employed by the vendor to track and
report the licensee’s compliance with the monitoring agreement.
(19) “Peer” means another licensee currently enrolled
in the program.
(20) “Provisional enrollment” means temporary
enrollment, pending verification that a self-referred licensee meets all
program eligibility criteria.
(21) “Self-referred licensee” means a licensee who
seeks to participate in the program without a referral from the board.
(22) “Substance Use Disorders” means disorders related
to the taking of a drug of abuse including alcohol, to the side effects of a
medication, and to a toxin exposure. The disorders include substance use
disorders such as substance dependence and substance abuse, and
substance-induced disorders, including substance intoxication, withdrawal,
delirium, and dementia, as well as substance induced psychotic disorder, mood
disorder and other disorders, as defined in DSM criteria.
(23) “Substantial non-compliance” means that a licensee
is in violation of the terms of his or her monitoring agreement in a way that
gives rise to concerns about the licensee’s ability or willingness to
participate in the program. Substantial non-compliance and non-compliance
include, but are not limited to, the factors listed in ORS 676.190(1)(f).
Conduct that occurred before a licensee entered into a monitoring agreement
does not violate the terms of that monitoring agreement.
(24) “Successful completion” means that for the period
of service deemed necessary by the vendor or by the licensee’s board by rule,
the licensee has complied with the licensee’s monitoring agreement to the
satisfaction of the program, and has met the terms of the fee agreement between
the program and the licensee.
(25) “Toxicology testing” means urine testing or
alternative chemical monitoring including but not limited to blood, saliva, or
breath.
(26) “Treatment” means the planned, specific,
individualized health and behavioral-health procedures, activities, services
and supports that a treatment provider uses to remediate symptoms of a
substance use disorder, mental health disorder or both types of disorders.
(27) “Vendor” means the entity that has contracted with
the Division to conduct the program.
Stat. Auth.: ORS 409.050 &
676.190
Stats. Implemented: ORS 676.185 -
676.200
Hist.: ADS 3-2010, f. & cert.
ef. 7-1-10; ADS 3-2011, f. & cert. ef. 8-16-11
415-065-0015
Clinical Council
(1) The Division, in collaboration with the boards, may
establish a Clinical Council that provides clinical guidance and advice to the
vendor, in light of evidenced-based research and data about substance use
disorders, mental health disorders or both types of disorders.
(2) The Clinical Council shall consist of eight
members. The Division shall appoint one member and the boards, in consultation
with the Division, shall appoint seven members.
(3) The Clinical Council shall select a chairperson
from among its members.
(4) To be eligible for appointment to the Clinical
Council, an individual must be a resident of Oregon and must have expertise in
the recognition, intervention, assessment and treatment of persons who have a
substance use disorders, mental health disorders or both types of disorders.
(5) In recruiting and selecting members for the
Clinical Council, the Division and the boards shall seek members who have
expertise with a range of culturally appropriate treatment options for people
with substance use disorders, mental health disorders or both types of
disorders.
Stat. Auth.: ORS 409.050 &
676.190
Stats. Implemented: ORS 676.185 -
676.200
Hist.: ADS 3-2010, f. & cert.
ef. 7-1-10; ADS 3-2011, f. & cert. ef. 8-16-11
415-065-0055
Program Requirements
The vendor shall:
(1) Inform the licensee about the program services,
requirements, benefits, risks, and confidentiality limitations and ensure that
the licensee has signed a consent for services. The consent for services
explains:
(a) Information the vendor will give to the board or to
the monitoring entity and under what circumstances;
(b) Information the monitoring entity will give to the
board and under what circumstances; and
(c) That the board may take action to suspend,
restrict, modify, or revoke the licensee’s license or end the licensee’s
participation in the program based on information from the vendor or the
monitoring entity.
(2) Enter into a monitoring agreement with the
licensee;
(3) Assess the licensee’s compliance with his or her
monitoring agreement;
(4) Assess the ability of the licensee’s employer, when
an employer exists to supervise the licensee, and require the employer to
establish minimum training requirements for the licensee’s supervisor;
(5) Report the licensee’s substantial noncompliance
with his or her monitoring agreement to the monitoring entity within one
business day after the vendor learns of any substantial noncompliance; and
(6) At least weekly, submit a list to the monitoring
entity of licensees who are enrolled in the program and a list of licensees who
successfully completed the program.
(7) Seek a court order authorizing the vendor to
release identifying information to a licensee’s board, including a report of
substantial noncompliance as is described in OAR 415-065-0060, if a
self-referred licensee enrolled in the program, or a provisionally enrolled
licensee with a qualifying diagnosis, revokes his or her consent to report
substantial noncompliance to the licensee’s board.
(a) The vendor shall file documents with the court
seeking a court order as soon as possible but no later than three business days
from the date it was notified that the licensee revoked consent to report
substantial noncompliance.
(b) The vendor shall comply with 42 USC &
290dd-2(b)(2); 42 CFR Part 2; the Health Insurance Portability and
Accountability Act (HIPAA), Public Law 104-191, 45 CFR Parts 160, 162 and 164
and ORS 179.505, ORS 192.518–192.524 in seeking such a court order.
(c) The vendor shall disclose to the licensee’s board,
within one (1) business day, any information the court authorizes it to
disclose.
Stat. Auth.: ORS 413.042 &
676.190
Stats. Implemented: ORS 676.185 -
676.200
Hist.: ADS 3-2010, f. & cert.
ef. 7-1-10; ADS 1-2011(Temp), f. & cert. ef. 2-11-11 thru 8-5-11; ADS
3-2011, f. & cert. ef. 8-16-11
Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.
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