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Oregon Bulletin

December 1, 2011

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

Rule Caption: Application for Initial Licensure and License Renewal for Residential Care and Assisted Living Facilities .

Adm. Order No.: SPD 23-2011(Temp)

Filed with Sec. of State: 11-10-2011

Certified to be Effective: 11-10-11 thru 5-7-12

Notice Publication Date:

Rules Amended: 411-054-0005, 411-054-0013, 411-054-0016

Subject: The Department of Human Services (Department) is temporarily amending rules in OAR chapter 411, division 054 to clarify the requirement that residential care (RCF) and assisted living facilities (ALF) disclose the name and financial interest of any person with an ownership interest of 10 percent or more and who is the license applicant or facility operator. The existing language was determined by Legislative Counsel to exceed the intent and scope of the enabling statutes.

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

411-054-0005

Definitions

For the purpose of these rules, the following definitions apply:

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

(2) “Activities of Daily Living (ADL)” mean those personal functional activities required by an individual for continued well being, health, and safety. Activities consist of eating, dressing/grooming, bathing/personal hygiene, mobility (ambulation and transfer), elimination (toileting, bowel, and bladder management), and cognition/behavior.

(3) “Administrator” means the person who is designated by the licensee that is responsible for the daily operation and maintenance of the facility.

(4) “Advance Directive” means a document that contains a health care instruction or a power of attorney for health care.

(5) “Applicant” means the person, persons, or entity, required to complete a facility application for license. Except as set forth in OAR 411-054-0013(1)(a), Applicant includes a sole proprietor, each partner in a partnership, and each member with a 10 percent or more ownership interest in a limited liability company, corporation, or entity that owns the residential care or assisted living facility business. Except as set forth in 411-054-0013(1)(a), Applicant also includes the sole proprietor, each partner in a partnership, and each member with a 10 percent or more ownership interest in a limited liability company, corporation, or entity that operates the assisted living or residential care facility on behalf of the facility business owner.

(6) “Area Agency on Aging (AAA)” as defined in ORS 410.040 means the Department designated agency charged with the responsibility to provide a comprehensive and coordinated system of services to seniors or individuals with disabilities in a planning and service area. For the purpose of these rules, the term Area Agency on Aging is inclusive of both Type A and B Area Agencies on Aging that contract with the Department to perform specific activities in relation to residential care and assisted living facilities including:

(a) Conducting inspections and investigations regarding protective service, abuse, and neglect;

(b) Monitoring; and

(c) Making recommendations to the Division regarding facility license approval, denial, revocation, suspension, non-renewal, and civil penalties.

(7) “Assistant Director” means the assistant director of the Division, or that individual’s designee.

(8) “Assisted Living Facility (ALF)” means a building, complex, or distinct part thereof, consisting of fully, self-contained, individual living units where six or more seniors and adult individuals with disabilities may reside in homelike surroundings. The assisted living facility offers and coordinates a range of supportive services available on a 24-hour basis to meet the activities of daily living, health, and social needs of the residents as described in these rules. A program approach is used to promote resident self-direction and participation in decisions that emphasize choice, dignity, privacy, individuality, and independence.

(9) “Caregiver” means a facility employee who is trained in accordance with OAR 411-054-0070 to provide personal care services to residents. The employee may be either a direct care staff or universal worker as defined in this rule.

(10) “Change of Condition — Short Term” means a change in the resident’s health or functioning that is expected to resolve or be reversed with minimal intervention or is an established, predictable, cyclical pattern associated with a previously diagnosed condition.

(11) “Change of Condition — Significant” means a major deviation from the most recent evaluation that may affect multiple areas of functioning or health that is not expected to be short term and imposes significant risk to the resident. Examples of significant change of condition include but are not limited to:

(a) Broken bones;

(b) Stroke, heart attack, or other acute illness or condition onset;

(d) Uncontrolled pain;

(e) Fast decline in activities of daily living;

(f) Significant unplanned weight loss;

(g) Pattern of refusing to eat;

(h) Level of consciousness change; and

(i) Pressure ulcers (stage 2 or greater).

(12) “Choice” means a resident has viable options that enable the resident to exercise greater control over his or her life. Choice is supported by the provision of sufficient private and common space within the facility that allows residents to select where and how to spend time and receive personal assistance.

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

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

(15) “Dignity” means providing support in such a way as to validate the self-worth of the individual. Creating an environment that allows personal assistance to be provided in privacy, supports dignity as does delivering services in a manner that shows courtesy and respect.

(16) “Direct Care Staff” means a facility employee whose primary responsibility is to provide personal care services to residents. These personal care services may include:

(a) Medication administration;

(b) Resident-focused activities;

(d) Supervision and support of residents; and

(e) Serving meals, but not meal preparation.

(17) “Directly Supervised” means that a qualified staff member maintains visual contact with the supervised person.

(18) “Disaster” means a sudden emergency occurrence beyond the control of the licensee, whether natural, technological, or manmade that renders the licensee unable to operate the facility or the facility is uninhabitable.

(19) “Disclosure” means the written information the facility is required to provide to consumers to enhance the understanding of facility costs, services, and operations.

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

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

(22) “Exception” means a written variance granted by the Division from a regulation or provision of these rules.

(23) “Facility” means the residential care or assisted living facility licensee and the operations, policies, procedures, and employees of the residential care or assisted living facility.

(24) “FPS” means the Facilities Planning and Safety Program within the Public Health Division.

(25) “Homelike Environment” means a living environment that creates an atmosphere supportive of the resident’s preferred lifestyle. Homelike environment is also supported by the use of residential building materials and furnishings.

(26) “Incident of Ownership” means an ownership interest, an indirect ownership interest, or a combination of direct and indirect ownership interest.

(27) “Independence” means supporting resident capabilities and facilitating the use of those abilities. Creating barrier free structures and careful use of assistive devices supports independence.

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

(29) “Individuality” means recognizing variability in residents’ needs and preferences and having flexibility to organize services in response to different needs and preferences.

(30) “Licensed Nurse” means an Oregon licensed practical or registered nurse.

(31) “Licensee” means the entity that owns the residential care or assisted living facility business, and to whom an assisted living or residential care facility license has been issued.

(32) “Managed Risk” means a process by which a resident’s high-risk behavior or choices are reviewed with the resident. Alternatives to and consequences of the behavior or choices are explained to the resident and the resident’s decision to modify behavior or accept the consequences is documented.

(33) “Management” or “Operator” means possessing the right to exercise operational or management control over, or directly or indirectly conduct, the day-to-day operation of a facility.

(34) “Modified Special Diet” means a diet ordered by a physician or other licensed health care professional that may be required to treat a medical condition (e.g., heart disease or diabetes).

(a) Modified special diets include but are not limited to:

(A) Small frequent meals;

(B) No added salt;

(D) Simple textural modifications.

(b) Medically complex diets are not included.

(35) “New Construction” means:

(a) A new building;

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

(d) Additions, conversions, renovations, or remodeling of existing buildings.

(36) “Nursing Care” means the practice of nursing as governed by ORS Chapter 678 and OAR chapter 851, division 047.

(37) “Owner” means a person with an ownership interest.

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

(39) “Personal Incidental Funds (PIF)” means the monthly amount allowed each Medicaid resident for personal incidental needs. For purposes of this definition, personal incidental funds include monthly payments, as allowed, and previously accumulated resident savings.

(40) “Privacy” means a specific area or time over which the resident maintains a large degree of control. Privacy is supported with services that are delivered with respect for the resident’s civil rights.

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

(42) “Psychoactive Medications” mean medications used to alter mood, level of anxiety, behavior, or cognitive processes. Psychoactive medications include antidepressants, anti-psychotics, sedatives, hypnotics, and anti-anxiety medications.

(43) “Resident” means any person who is receiving room, board, care, and services on a 24-hour basis in a residential care or assisted living facility for compensation.

(44) “Residential Care Facility (RCF)” means a building, complex, or distinct part thereof, consisting of shared or individual living units in a homelike surrounding where six or more seniors and adult individuals with disabilities may reside. The residential care facility offers and coordinates a range of supportive services available on a 24-hour basis to meet the activities of daily living, health, and social needs of the residents as described in these rules. A program approach is used to promote resident self-direction and participation in decisions that emphasize choice, dignity, individuality, and independence.

(45) “Restraint” means any physical device that the resident cannot manipulate that is used to restrict movement or normal access to the resident’s body.

(46) “Retaliation” means to threaten or intimidate, or take an action that is detrimental to a person (e.g., harassment, abuse, coercion, etc.).

(47) “Service Plan” means a written, individualized plan for services developed by a service planning team and the resident, or the resident’s legal representative, that reflects the resident’s capabilities, choices, and if applicable, measurable goals, and managed risk issues. The service plan defines the division of responsibility in the implementation of the services.

(48) “Service Planning Team” means two or more individuals, as set forth in OAR 411-054-0036 that assist the resident in determining what services and care are needed, preferred, and may be provided to the resident.

(49) “Services” means supervision or assistance provided in support of a resident’s needs, preferences, and comfort, including health care and activities of daily living, that help develop, increase, maintain, or maximize the resident’s level of independent, psychosocial, and physical functioning.

(50) “Subject Individual” means any person 16 years of age or older on whom the Department may conduct a criminal records check and from whom the Department may require fingerprints for the purpose of conducting a national criminal records check.

(a) For the purpose of these rules, subject individual includes:

(A) All applicants, licensees, and operators of a residential care or assisted living facility;

(B) All persons employed or that are receiving training in an assisted living or residential care facility;

(b) For the purpose of these rules, subject individual does not apply to;

(A) Residents and visitors of residents; or

(B) Persons employed by a private business that provides services to residents and is not regulated by the Department.

(51) “Supportive Device” means a device that may have restraining qualities that supports and improves a resident’s physical functioning.

(52) “These Rules” mean the rules in OAR chapter 411, division 054.

(53) “Underserved” means services are significantly unavailable within the service area in a comparable setting for:

(a) The general public; or

(b) A specific population, for example, residents with dementia or traumatic brain injury.

(54) “Unit” means an individual living space constructed as a completely private apartment, including living and sleeping space, kitchen area, bathroom, and adequate storage areas.

(55) “Universal Worker” means a facility employee whose assignments include other tasks (e.g., housekeeping, laundry, food service, etc.) in addition to providing direct resident services. Universal worker does not include administrators, clerical or administrative staff, building maintenance staff, or licensed nurses who provide services as specified in OAR 411-054-0034.

Stat. Auth.: ORS 410.070 & 443.450

Stats. Implemented: ORS 443.400 - 443.455 & 443.991

Hist.: SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07; SPD 16-2008, f. 12-31-08, cert. ef. 1-1-09; SPD 13-2009, f. 9-30-09, cert. ef. 10-1-09; SPD 23-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 10-2010, f. 6-30-10, cert. ef. 7-1-10; SPD 24-2010(Temp), f. & cert. ef. 10-5-10 thru 4-2-11; SPD 7-2011, f. 3-31-11, cert. ef. 4-1-11; SPD 23-2011(Temp), f. & cert. ef. 11-10-11 thru 5-7-12

411-054-0013

Application for Initial Licensure and License Renewal

(1) APPLICATION. Applicants for initial licensure and license renewal must complete an application on a form provided by the Division. The form must be signed by the applicant’s legally authorized representative, dated, contain all information requested by the Division, and be accompanied by the required licensing fee.

(a) Applicants must provide all information and documentation as required by the Division including but not limited to identification of financial interest of any person, including stockholders who have an incident of ownership in the applicant representing an interest of 10 percent or more. For purposes of rule, a person with a 10 percent or more ownership interest is presumed to have an effect on the operation of the facility with respect to factors affecting the care or training provided, unless the person can establish the person has no involvement in the operation of the facility.

(b) If the owner of the assisted living or residential care facility is a different entity from the operator or management company of the facility, both the operator and the owner must complete an application for licensure. Only one license fee is required.

(c) The application shall require the identification of any individual with a 10 percent or more incident of ownership that has ever been convicted of a crime associated with the operation of a long-term, community-based, or health care facility or agency under federal law or the laws of any state.

(d) The application shall require the identification of all states where the applicant, or individual having a 10 percent or more incident of ownership in the facility, currently or previously has been licensed as owner or operator of a long-term, community-based, or health care facility or agency under the laws of any state including any facility, currently or previously owned or operated, that had its license denied or revoked or received notice of the same under the laws of any state.

(e) The Division may deny, revoke, or refuse to renew the license if the applicant fails to provide complete and accurate information on the application and the Division concludes that the missing or corrected information is needed to determine if a license should be granted.

(f) Each application for a new license must include a completed and signed credit history and criminal records request form for the applicant and for each person with 10 percent or more incident of ownership in the applicant.

(g) The Division may require financial information as stated in OAR 411-054-0016(3) (New Applicant Qualifications), when considering an applicant’s request for renewal of a license.

(h) Applicants must provide other information and documentation as the Division may reasonably require for the proper administration of these rules, including but not limited to information about ownership interest and involvement in the operation of the facility in other business enterprises, as relevant.

(2) LICENSE RENEWAL. Application for a license renewal must be made at least 45 days prior to the expiration date of the existing license. Filing of an application for renewal and payment of the required non-refundable fee before the date of expiration extends the effective date of expiration until the Division takes action upon such application.

(a) The Division shall refuse to renew a license if the facility is not substantially in compliance with all applicable laws and rules or if the State Fire Marshal or authorized representative has given notice of noncompliance.

(b) An applicant for license renewal must provide the Division with a completed criminal records request form for the applicant and for each person with incident of ownership of 10 percent or more in the applicant when required by the Division.

(c) A building inspection may be requested at the Division’s discretion. The Division may require physical improvements if the health or safety of residents is negatively impacted.

(3) DEMONSTRATED CAPABILITY.

(a) Prior to issuance of a license or a license renewal, the applicant must demonstrate to the satisfaction of the Division that the applicant is capable of providing care in a manner consistent with the requirements of these rules.

(b) The Division may consider the background and qualifications of any person with a 10 percent or more incident of ownership in the facility when determining whether an applicant may be licensed.

(c) The Division may consider the applicant’s history of compliance with Division rules and orders including the history of compliance of any person with a 10 percent or more incident of ownership in the facility.

Stat. Auth.: ORS 410.070 & 443.450

Stats. Implemented: ORS 443.400 - 443.455, 443.991

Hist.: SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07; SPD 10-2010, f. 6-30-10, cert. ef. 7-1-10; SPD 23-2011(Temp), f. & cert. ef. 11-10-11 thru 5-7-12

411-054-0016

New Applicant Qualifications

For the purpose of this rule, “applicant” means each person, as defined in ORS 442.015, who holds 10 percent or more incident of ownership in the facility as described in OAR 411-054-0013(1)(a). Applicants for licensure (excluding license renewal but including all changes of ownership, management, or operator) must meet the following criteria:

(1) CRIMINAL RECORDS. Each applicant may not have convictions of any of the crimes listed in OAR 407-007-0275 and must complete a criminal records check conducted by the Department in accordance with OAR 407-007-0200 to 407-007-0370.

(2) PERFORMANCE HISTORY. The Division shall consider an applicant’s performance history, including repeat sanctions or rule violations, before issuing a license.

(a) Each applicant must be free of incident of ownership history in any facility in Oregon that provides or provided (at the time of ownership) care to children, elderly, ill, or individuals with disabilities that had its license or certification involuntarily suspended or voluntarily terminated during any state or federal sanction process during the past five years.

(b) Applicants must be free of incident of ownership history in any facility in any state that had its license or certification involuntarily suspended or voluntarily terminated during any state or federal sanction process during the past five years.

(c) Failure to provide accurate information or demonstrate required performance history could result in the Division’s denial of a license.

(3) FINANCIAL HISTORY. Each applicant must:

(a) Be free of incident of ownership history in any facility or business that failed to reimburse any state for Medicaid overpayments or civil penalties during the past five years.

(b) Be free of incident of ownership history in any facility or business that failed to compensate employees or pay worker’s compensation, food supplies, utilities, or other costs necessary for facility operation during the past five years.

(c) Submit proof of fiscal responsibility, including an auditor’s certified financial statement, and other verifiable documentary evidence of fiscal solvency documenting that the prospective licensee has sufficient resources to operate the facility for 60 days. Proof of fiscal responsibility must include liquid assets sufficient to operate the facility for 45 days. Anticipated Medicaid income is not considered “liquid assets,” but may be considered “financial resources.” Liquid assets may be demonstrated by:

(A) An unencumbered line of credit;

(B) A performance bond; or

(d) Provide a pro forma (revenues, expenditures, and resident days) by month for the first 12 months of operation of the facility and demonstrate the ability to cover any cash flow problems identified by the pro forma.

(4) EXPERIENCE. If an applicant does not have experience in the management of nursing facilities, assisted living, or residential care, the applicant must employ the services of a consultant or management company with experience in the provision of assisted living or residential care for a period of at least six months. The consultant and the terms and length of employment are subject to the approval of the Division.

Stat. Auth.: ORS 410.070 & 443.450

Stats. Implemented: ORS 443.400 - 443.455, 443.991

Hist.: SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07; SPD 23-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 10-2010, f. 6-30-10, cert. ef. 7-1-10; SPD 23-2011(Temp), f. & cert. ef. 11-10-11 thru 5-7-12

Rule Caption: In-Home Services, Instrumental Activities of Daily Living (IADL).

Adm. Order No.: SPD 24-2011(Temp)

Filed with Sec. of State: 11-15-2011

Certified to be Effective: 1-1-12 thru 6-29-12

Notice Publication Date:

Rules Amended: 411-030-0070

Subject: In response to a budgetary shortfall, the Department of Human Services (Department) is temporarily amending OAR 411-030-0070 to reduce the in-home services maximum monthly hours for instrumental activities of daily living (IADL) by 10 percent. This reduction becomes effective January 1, 2012.

Meal preparation and housekeeping will be the only IADL service hours reduced since the current rule allows the highest allotment of hours in these two areas. This reduction will minimize the loss of IADL hours in areas the rule currently allows a small allotment (medication and oxygen management, transportation or escort assistance, and shopping). Reducing meal preparation and housekeeping hours will accomplish a total 10 percent reduction of the IADLs.

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

411-030-0070

Maximum Hours of Service

(1) LEVELS OF ASSISTANCE FOR DETERMINING SERVICE PLAN HOURS.

(a) “Minimal Assistance” means the individual is able to perform the majority of an activity, but requires some assistance from another person.

(b) “Substantial Assistance” means the individual can perform only a small portion of the tasks that comprise the activity without assistance from another person.

(c) “Full Assistance” means the individual needs assistance from another person through all phases of the activity, every time the activity is attempted.

(2) MAXIMUM MONTHLY HOURS FOR ADL.

(a) The planning process uses the following limitations for time allotments for ADL tasks. Hours authorized must be based on the service needs of the individual. Case managers may authorize up to the amount of hours identified in these assistance levels (minimal, substantial, or full assist).

(A) Eating:

(i) Minimal assistance, 5 hours;

(ii) Substantial assistance, 20 hours;

(iii) Full assistance, 30 hours;

(B) Dressing/Grooming:

(i) Minimal assistance, 5 hours;

(ii) Substantial assistance, 15 hours;

(iii) Full assistance, 20 hours;

(i) Minimal assistance, 10 hours;

(ii) Substantial assistance, 15 hours;

(iii) Full assistance, 25 hours;

(D) Mobility:

(i) Minimal assistance, 10 hours;

(ii) Substantial assistance, 15 hours;

(iii) Full assistance, 25 hours;

(E) Elimination (Toileting, Bowel, and Bladder):

(i) Minimal assistance, 10 hours;

(ii) Substantial assistance, 20 hours;

(iii) Full assistance, 25 hours;

(F) Cognition/Behavior:

(i) Minimal assistance, 5 hours;

(ii) Substantial assistance, 10 hours;

(iii) Full assistance, 20 hours.

(b) Service plan hours for ADL may only be authorized for an individual if the individual requires assistance (minimal, substantial, or full assist) from another person in that activity of daily living as determined by a service assessment applying the parameters in OAR 411-015-0006.

(c) For households with two or more eligible individuals, each individual’s ADL service needs must be considered separately. In accordance with section (3)(c) of this rule, authorization of IADL hours shall be limited for each additional individual in the home.

(d) Hours authorized for ADL are paid at hourly rates in accordance with the rate schedule. The Independent Choices Program cash benefit is based on the hours authorized for ADLs paid at the hourly rates. Participants of the Independent Choices Program may determine their own employee provider pay rates.

(3) MAXIMUM MONTHLY HOURS FOR IADL.

(a) The planning process uses the following limitations for time allotments for IADL tasks. Hours authorized must be based on the service needs of the individual. Case managers may authorize up to the amount of hours identified in these assistance levels (minimal, substantial, or full assist).

(A) Medication and Oxygen Management:

(i) Minimal assistance, 2 hours;

(ii) Substantial assistance, 4 hours;

(iii) Full assistance, 6 hours;

(B) Transportation or Escort Assistance:

(i) Minimal assistance, 2 hours;

(ii) Substantial assistance, 3 hours;

(iii) Full assistance, 5 hours;

(i) Minimal assistance prior to January 1, 2012:

(I) Breakfast, 4 hours;

(II) Lunch, 4 hours;

(III) Supper, 8 hours.

(ii) Minimal assistance effective January 1, 2012:

(I) Breakfast, 3 hours;

(II) Lunch, 3 hours;

(III) Supper, 7 hours.

(iii) Substantial assistance prior to January 1, 2012:

(I) Breakfast, 8 hours;

(II) Lunch, 8 hours;

(III) Supper, 16 hours.

(iv) Substantial assistance effective January 1, 2012:

(I) Breakfast, 7 hours;

(II) Lunch, 7 hours;

(III) Supper, 14 hours.

(v) Full assistance prior to January 1, 2012:

(I) Breakfast, 12 hours;

(II) Lunch, 12 hours;

(III) Supper, 24 hours.

(vi) Full assistance effective January 1, 2012:

(I) Breakfast, 10 hours;

(II) Lunch, 10 hours;

(III) Supper, 21 hours.

(D) Shopping:

(i) Minimal assistance, 2 hours;

(ii) Substantial assistance, 4 hours;

(iii) Full assistance, 6 hours;

(E) Housecleaning:

(i) Minimal assistance:

(I) Prior to January 1, 2012, 5 hours.

(II) Effective January 1, 2012, 4 hours.

(ii) Substantial assistance:

(I) Prior to January 1, 2012, 10 hours.

(II) Effective January 1, 2012, 9 hours.

(iii) Full assistance:

(I) Prior to January 1, 2012, 20 hours.

(II) Effective January 1, 2012, 18 hours.

(b) Rates shall be paid in accordance with the rate schedule. When a live-in employee is present, these hours may be paid at less than minimum wage according to the Fair Labor Standards Act. The Independent Choices Program cash benefit is based on the hours authorized for IADL tasks paid at the hourly rates. Participants of the Independent Choices Program may determine their own employee provider pay rates.

(c) When two or more individuals eligible for IADL task hours live in the same household, the assessed IADL need of each individual must be calculated. Payment shall be made for the highest of the allotments and a total of four additional IADL hours per month for each additional individual to allow for the specific IADL needs of the other individuals.

(d) Service plan hours for IADL tasks may only be authorized for an individual if the individual requires assistance (minimal, substantial, or full assist) from another person in that IADL task as determined by a service assessment applying the parameters in OAR 411-015-0007.

(e) Notwithstanding any other rule, an individual requesting a contested case hearing on the IADL service plan reductions effective January 1, 2012 resulting from the implementation of this rule are not entitled to continuation of benefits pending the outcome of a contested case hearing.

(4) TWENTY-FOUR HOUR AVAILABILITY.

(a) Payment for twenty-four hour availability shall be authorized only when an individual employs a live-in homecare worker or Independent Choices Program employee provider and requires twenty-four availability due to the following:

(A) The individual requires assistance with ADL or IADL tasks at unpredictable times throughout most 24 hour periods; and

(B) The individual requires minimal, substantial, or full assistance with ambulation and requires assistance with transfer (as defined in OAR 411-015-0006); or

(D) The individual requires full assist in at least three of the eight components of cognition/behavior (as defined in OAR 411-015-0006).

(b) The number of hours allowed per month shall have the following maximums. Hours authorized are based on the service needs of the individual. Case managers may authorize up to the amount of hours identified in these assistance levels (minimal, substantial, or full assist).

(A) Minimal assistance — 60 hours. Minimal assistance hours may be authorized when an individual requires one of these assessed needs as defined in OAR 411-015-0006:

(i) Full assist in cognition; or

(ii) Full assist in toileting or bowel or bladder.

(B) Substantial assistance — 110 hours. Substantial assistance hours may be authorized when an individual requires these assessed needs as defined in OAR 411-015-0006:

(i) Assist in transfer; and

(ii) Assist in ambulation; and

(iii) Full assist in cognition; or

(iv) Full assist in toileting or bowel or bladder.

(i) The authorized provider cannot get at least five continuous hours of sleep in an eight hour period during a 24-hour work period; and

(ii) The eligible individual requires these assessed needs as defined in OAR 411-015-0006:

(I) Full assist in transfer; and

(II) Assist in mobility; or

(III) Full assist in toileting or bowel or bladder; or

(IV) Full assist in cognition.

(c) Service plans that include full-time live-in homecare workers or Independent Choices Program employee providers must include a minimum of 60 hours per month of twenty-four hour availability. When a live-in homecare worker or Independent Choices Program employee provider is employed less than full time, the hours must be pro-rated. Full-time means the live-in homecare worker is providing services to the client-employer seven days per week throughout a calendar month.

(d) Rates for twenty-four hour availability shall be in accordance with the rate schedule and paid at less than minimum wage according to the Fair Labor Standards Act and ORS 653.020(2).

(e) Twenty-four hour availability assumes the homecare worker is available to address the service needs of an individual as they arise throughout a 24 hour period. A homecare worker who engages in employment outside the eligible individual’s home or building during the work periods the homecare worker is on duty, is not considered available to meet the service needs of the individual.

(5) Under no circumstances shall any provider receive payment from the Department for more than the total amount authorized by the Department on the service plan authorization form. All service payments must be prior-authorized by the Department/AAA.

(6) AUTHORIZED HOURS ARE SUBJECT TO THE AVAILABILITY OF FUNDS. Case managers must assess and utilize as appropriate, natural supports, cost-effective assistive devices, durable medical equipment, housing accommodations, and alternative service resources (as defined in OAR 411-015-0005) which could reduce the individual’s reliance on paid in-home services hours.

(7) The Department may authorize paid in-home services only to the extent necessary to supplement potential or existing resources within the individual’s natural supports system.

(8) Payment by the Department for waivered in-home services shall only be made for those tasks described in this rule as ADL, IADL tasks, and twenty-four hour availability. Services must be authorized to meet the needs of the eligible individual and may not be provided to benefit the entire household.

(9) EXCEPTIONS TO MAXIMUM HOURS OF SERVICE.

(a) To meet an extraordinary ADL service need that has been documented, the hours authorized for ADL may exceed the full assistance hours (defined in section (2) of this rule) as long as the total number of ADL hours in the service plan does not exceed 145 hours per month.

(b) Monthly service payments that exceed 145 ADL hours per month may be approved by the Department when the exceptional payment criteria identified in OAR 411-027-0020 and 411-027-0050 is met.

(c) Monthly service plans that exceed 380 hours per month for a live-in homecare worker or Independent Choices Program employee provider, or that exceed the equivalent monthly service payment for an hourly services plan, may be approved by the Department when the exceptional payment criteria identified in OAR 411-027-0020 and 411-027-0050 is met.

(d) As long as the total number of IADL task hours in the service plan does not exceed 76 hours per month and the service need is documented, the hours authorized for IADL tasks may exceed the hours for full assistance (as defined in section (3) of this rule) for the following tasks and circumstances:

(A) Housekeeping based on medical need (such as immune deficiency);

(B) Short-term extraordinary housekeeping services necessary to reverse unsanitary conditions that jeopardize the health of the individual; or

(e) Monthly service plans that exceed 76 hours per month in IADL tasks may be approved by the Department when the individual meets the exceptional payment criteria identified in OAR 411-027-0020 and 411-027-0050.

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

Stat. Auth.: ORS 409.050, 410.070 & 410.090

Stats. Implemented: ORS 410.010, 410.020 & 410.070

Hist.: SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93; SSD 6-1994, f. & cert. ef. 11-15-94; SDSD 8-1999(Temp), f. & cert. ef. 10-15-99 thru 4-11-00; SDSD 3-2000, f. 4-11-00, cert. ef. 4-12-00; SPD 14-2003, f. & cert. ef. 7-31-03; SPD 15-2003 f. & cert. ef. 9-30-03; SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04; SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04; SPD 18-2005(Temp), f. 12-20-05, cert. ef. 12-21-05 thru 6-1-06; SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 4-2008(Temp), f. & cert. ef. 4-1-08 thru 9-24-08; SPD 13-2008, f. & cert. ef. 9-24-08; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 24-2011(Temp), f. 11-15-11, cert. ef. 1-1-12 thru 6-29-12

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.