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Oregon Bulletin

October 1, 2011

 

Oregon Health Authority,
Addictions and Mental Health Division:
Addiction Services
Chapter 415

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.

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

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Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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