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Oregon Bulletin

December 1, 2011

 

Oregon Health Authority
Chapter 943

Rule Caption: Authorization for Authority employees to appear on behalf of the Authority in contested case hearings.

Adm. Order No.: OHA 23-2011

Filed with Sec. of State: 10-31-2011

Certified to be Effective: 11-1-11

Notice Publication Date: 10-1-2011

Rules Adopted: 943-001-0009

Rules Repealed: 943-001-0009(T)

Subject: Provides authorization for Authority employees or officers (lay representatives) to appear on behalf of the Authority in contested case hearings. Prohibits Authority lay representatives from making legal arguments and explains process for submitting legal argument when necessary.

Rules Coordinator: Evonne Alderete—(503) 932-9663

943-001-0009

Lay Representation in Contested Case Hearings

(1) Contested case hearings are conducted in accordance with the Attorney General’s model rules at OAR 137-003-0501 to 0700. Subject to the approval of the Attorney General, an officer or employee of the Oregon Health Authority (Authority) is authorized to appear on behalf of the agency in the following types of hearings conducted by the Authority:

(a) Eligibility and termination determinations related to medical assistance coverage.

(b) Suspension, reduction, or denial of medical assistance services, prior authorization, or medical management decisions.

(c) Enrollment or disenrollment decisions related to managed care plans.

(d) Eligibility for or termination of health insurance premium assistance, or determination of subsidy levels.

(e) Provider issues including provider enrollment or denial of enrollment, overpayment determinations, audits, and sanctions.

(f) Other administrative actions including criminal background checks, hardship waivers related to medical assistance, client overpayments related to medical assistance.

(g) Oregon State Hospital’s involuntary administration of a significant procedure to a patient or resident.

(2) The agency representative may not make legal argument on behalf of the agency.

(a) “Legal argument” includes arguments on:

(A) The jurisdiction of the agency to hear the contested case;

(B) The constitutionality of a statute or rule or the application of a constitutional requirement to an agency; and

(C) The application of court precedent to the facts of the particular contested case proceeding.

(b) “Legal argument” does not include presentation of motions, evidence, examination and cross-examination of witnesses or presentation of factual arguments or arguments on:

(A) The application of the statutes or rules to the facts in the contested case;

(B) Comparison of prior actions of the agency in handling similar situations;

(C) The literal meaning of the statutes or rules directly applicable to the issues in the contested case;

(D) The admissibility of evidence;

(E) The correctness of procedures being followed in the contested case hearing.

(3) When an agency officer or employee appears on behalf of the Authority, the administrative law judge shall advise the representative of the manner in which objections may be made and matters preserved for appeal. Such advice is of a procedural nature and does not change applicable law on waiver or the duty to make timely objection. Where such objections involve legal argument, the administrative law judge provide reasonable opportunity for the agency officer or employee to consult legal counsel and permit the Authority’s legal counsel to file written legal argument within a reasonable time after the conclusion of the hearing.

Stat. Auth: ORS 413.042

Stats Implemented: ORS 183.452

Hist.: OHA 2-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; OHA 23-2011, f. 10-31-11, cert. ef. 11-1-11

 

Rule Caption: Oregon Health Authority Shared Service and Cooperative Relationships with Department of Human Services.

Adm. Order No.: OHA 24-2011

Filed with Sec. of State: 10-31-2011

Certified to be Effective: 11-1-11

Notice Publication Date: 10-1-2011

Rules Adopted: 943-001-0020

Rules Repealed: 943-001-0020(T)

Subject: HB 2009 (2009) created the Oregon Health Authority and transferred to the Authority the Department of Human Services’ (Department) Divisions with respect to health and health care. The Authority is adopting this rule to assure continuity as a part of the operational transfer from functions previously performed by the Department as a result of HB 2009(2009). The Authority is adopting this rule permanently for continued operational and business continuity.

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

Rules Coordinator: Evonne Alderete—(503) 932-9663

943-001-0020

Oregon Health Authority Shared Service and Cooperative Relationships with Department of Human Services

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

(2) For all the programs, functions, and duties with respect to health or health care (generally described in Oregon Laws 2009, chapter 595, section 19(1)(a)), transferred to the Authority from the Department (“transferred program”) or for shared services, the Authority declares that:

(a) All transferred program rules shall remain in effect until superceded by adoption of Authority rules or adoption of rules by the Authority coordinating shared services with the Department.

(b) All transferred program administration, policies, and procedures remain in effect pending the completion of review and adoption by the Authority or adoption of such policies and procedures related to coordination of shared services with the Department.

(c) Any judicial or administrative action, proceeding, contested case hearing, or administrative review matters, or new action, proceeding, or matter involving or relating to the duties or powers transferred to the Authority are the responsibility of the Authority.

(d) Rights and obligations legally incurred under transferred program contracts, leases, and business transactions remain legally valid and are the responsibility of the Authority.

(e) Statutorily required filings, notices or service of papers, applications, notices or other documents to be mailed, provided to, or served on the Authority shall be mailed, provided to, or served on the Authority. Any notices required by ORS 113.145, 114.525 and 130.370 to be sent to the Authority may be consolidated with similar notices to the Department and sent to the Estate Administration Unit of the Department. Any notices required by 416.530 to be sent to the Authority may be consolidated with similar notices to the Department and sent to the Personal Injury Lien Unit of the Department Any consolidated notice shall be considered notice to the Authority as long as the Authority’s interest or claim in the matter is identified in the notice consistent with requirements in applicable statute.

(f) A reference to an Administrator or Assistant Director in any transferred program rule of the Authority means the Director of the Authority’s program that is covered by that chapter of the Oregon Administrative Rules or the Authority’s program specified in the rule.

(3) As the state Medicaid agency for the administration of funds from Titles XIX and XXI of the Social Security Act, the Authority is charged with the administration of the medical assistance program. The Authority is responsible for facilitating outreach and enrollment efforts to connect eligible individuals with all available publicly funded health programs.

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

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

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

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

Stat. Auth.:ORS 413.042

Statutes Implemented: ORS 413.042

Hist.: OHA 3-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; OHA 24-2011, f. 10-31-11, cert. ef. 11-1-11

 

Rule Caption: Confidentiality and Inadmissibility of Mediation and Workplace Interpersonal Dispute Mediation Communications.

Adm. Order No.: OHA 25-2011

Filed with Sec. of State: 10-31-2011

Certified to be Effective: 11-1-11

Notice Publication Date: 10-1-2011

Rules Adopted: 943-014-0200, 943-014-0205

Rules Repealed: 943-014-0200(T), 943-014-0205(T)

Subject: HB 2009 (2009) created the Oregon Health Authority (Authority) and transferred to the Authority the Department of Human Services’ (Department) Divisions with respect to health and health care. Effective July 1, 2011 the Authority is adopting its own operational and programmatic rules as a part of the operational transfer from functions previously performed by the Department as a result of HB 2009(2009). These rule adoptions duplicate the rules in the Department’s chapter 407 and provide legal authority for the Authority to conduct business. These rules set forth the requirements, responsibilities, and duties of the Authority related to the disclosure of communications received as a result of mediations and workplace interpersonal dispute mediations. Those same requirements, responsibilities, and duties remain in the Department” OAR chapter 407 regarding disclosure of communications received as a result of mediation.

Rules Coordinator: Evonne Alderete—(503) 932-9663

943-014-0200

Confidentiality and Inadmissibility of Mediation Communications

(1) The words and phrases used in this rule have the same meaning as given to them in ORS 36.110 and 36.234.

(2) Nothing in this rule affects any confidentiality created by other law. Nothing in this rule relieves a public body from complying with the Public Meetings Law, ORS 192.610 to 192.690. Whether or not they are confidential under this or other rules of the agency, mediation communications are exempt from disclosure under the Public Records Law to the extent provided in 192.410 to 192.505.

(3) This rule applies only to mediations in which the agency is a party or is mediating a dispute as to which the agency has regulatory authority. This rule does not apply when the agency is acting as the “mediator” in a matter in which the agency also is a party as defined in ORS 36.234.

(4) To the extent mediation communications would otherwise be compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in ORS 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary in section (9) of this rule.

(5) Mediations Excluded. Sections (6)–(10) of this rule do not apply to:

(a) Mediation of workplace interpersonal disputes involving the interpersonal relationships between this agency’s employees, officials or employees and officials, unless a formal grievance under a labor contract, a tort claim notice or a lawsuit has been filed; or

(b) Mediation in which the person acting as the mediator will also act as the hearings officer in a contested case involving some or all of the same matters;

(c) Mediation in which the only parties are public bodies;

(d) Mediation involving two or more public bodies and a private party if the laws, rule or policies governing mediation confidentiality for at least one of the public bodies provide that mediation communications in the mediation are not confidential;

(e) Mediation involving 15 or more parties if the agency has designated that another mediation confidentiality rule adopted by the agency may apply to that mediation.

(6) Disclosures by Mediator. A mediator may not disclose or be compelled to disclose mediation communications in a mediation and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding unless:

(a) All the parties to the mediation and the mediator agree in writing to the disclosure; or

(b) The mediation communication may be disclosed or introduced into evidence in a subsequent proceeding as provided in subsections (c)–(d), (j)–(l) or (o)–(p) of section (9) of this rule; or

(c) The mediation communication includes information related to the health or safety of any child, then the mediation communication may be disclosed and may be admitted into evidence in a subsequent proceeding to the extent the disclosure is necessary to prevent or mitigate a threat or danger to the health or safety of any child.

(d) The mediation communication includes information relating to suffering by or commission of abuse upon certain persons and that information would otherwise be required to be reported by a public or private official under the provisions of ORS 124.060 (person 65 years of age or older), 430.765 (1) and (2) (person who is mentally ill or developmentally disabled who is 18 years of age or older and receives services from a community program or facility) or 441.640 (person who is a resident in a long-term care facility), in which case that portion of the mediation communication may be disclosed as required by statute.

(7) Confidentiality and Inadmissibility of Mediation Communications. Except as provided in sections (8)–(9) of this rule, mediation communications are confidential and may not be disclosed to any other person, are not admissible in any subsequent administrative, judicial or arbitration proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent proceeding, or introduced as evidence by the parties or the mediator in any subsequent proceeding.

(8) Written Agreement. Section (7) of this rule does not apply to a mediation unless the parties to the mediation agree in writing, as provided in this section, that the mediation communications in the mediation will be confidential and/or nondiscoverable and inadmissible. If the mediator is the employee of and acting on behalf of a state agency, the mediator or an authorized agency representative must also sign the agreement. The parties’ agreement to participate in a confidential mediation must be in substantially the following form. This form may be used separately or incorporated into an “agreement to mediate.” [Form not included. See ED. NOTE.]

(9) Exceptions to confidentiality and inadmissibility.

(a) Any statements, memoranda, work products, documents and other materials, otherwise subject to discovery that were not prepared specifically for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding.

(b) Any mediation communications that are public records, as defined in ORS 192.410(4), and were not specifically prepared for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential or privileged under state or federal law.

(c) A mediation communication is not confidential and may be disclosed by any person receiving the communication to the extent that person reasonably believes that disclosing the communication is necessary to prevent the commission of a crime that is likely to result in death or bodily injury to any person. A mediation communication is not confidential and may be disclosed in a subsequent proceeding to the extent its disclosure may further the investigation or prosecution of a felony crime involving physical violence to a person.

(d) Any mediation communication related to the conduct of a licensed professional that is made to or in the presence of a person who, as a condition of his or her professional license, is obligated to report such communication by law or court rule is not confidential and may be disclosed to the extent necessary to make such a report.

(e) The parties to the mediation may agree in writing that all or part of the mediation communications are not confidential or that all or part of the mediation communications may be disclosed and may be introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential, privileged or otherwise prohibited from disclosure under state or federal law.

(f) A party to the mediation may disclose confidential mediation communications to a person if the party’s communication with that person is privileged under ORS Chapter 40 or other provision of law. A party to the mediation may disclose confidential mediation communications to a person for the purpose of obtaining advice concerning the subject matter of the mediation, if all the parties agree.

(g) An employee of the agency may disclose confidential mediation communications to another agency employee so long as the disclosure is necessary to conduct authorized activities of the agency. An employee receiving a confidential mediation communication under this subsection is bound by the same confidentiality requirements as apply to the parties to the mediation.

(h) A written mediation communication may be disclosed or introduced as evidence in a subsequent proceeding at the discretion of the party who prepared the communication so long as the communication is not otherwise confidential under state or federal law and does not contain confidential information from the mediator or another party who does not agree to the disclosure.

(i) In any proceeding to enforce, modify or set aside a mediation agreement, a party to the mediation may disclose mediation communications and such communications may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of mediation communications or agreements to persons other than the parties to the agreement.

(j) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, mediation communications are not confidential and may be disclosed and may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements.

(k) When a mediation is conducted as part of the negotiation of a collective bargaining agreement, the following mediation communications are not confidential and such communications may be introduced into evidence in a subsequent administrative, judicial or arbitration proceeding:

(A) A request for mediation; or

(B) A communication from the Employment Relations Board Conciliation Service establishing the time and place of mediation; or

(C) A final offer submitted by the parties to the mediator pursuant to ORS 243.712; or

(D) A strike notice submitted to the Employment Relations Board.

(l) To the extent a mediation communication contains information the substance of which is required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that portion of the communication may be disclosed as required by statute.

(m) Written mediation communications prepared by or for the agency or its attorney are not confidential and may be disclosed and may be introduced as evidence in any subsequent administrative, judicial or arbitration proceeding to the extent the communication does not contain confidential information from the mediator or another party, except for those written mediation communications that are:

(A) Attorney-client privileged communications so long as they have been disclosed to no one other than the mediator in the course of the mediation or to persons as to whom disclosure of the communication would not waive the privilege; or

(B) Attorney work product prepared in anticipation of litigation or for trial; or

(C) Prepared exclusively for the mediator or in a caucus session and not given to another party in the mediation other than a state agency; or

(D) Prepared in response to the written request of the mediator for specific documents or information and given to another party in the mediation; or

(E) Settlement concepts or proposals, shared with the mediator or other parties.

(n) A mediation communication made to the agency may be disclosed and may be admitted into evidence to the extent the Agency Director, or designee determines that disclosure of the communication is necessary to prevent or mitigate a serious danger to the public’s health or safety, and the communication is not otherwise confidential or privileged under state or federal law.

(o) The terms of any mediation agreement are not confidential and may be introduced as evidence in a subsequent proceeding, except to the extent the terms of the agreement are exempt from disclosure under ORS 192.410 to 192.505, a court has ordered the terms to be confidential under ORS 17.095 or state or federal law requires the terms to be confidential.

(p) The mediator may report the disposition of a mediation to the agency at the conclusion of the mediation so long as the report does not disclose specific confidential mediation communications. The agency or the mediator may use or disclose confidential mediation communications for research, training or educational purposes, subject to the provisions of ORS 36.232(4).

(q) The mediation communication may be disclosed and may be admitted into evidence in a subsequent proceeding to the extent the disclosure is necessary to prevent or mitigate a threat or danger to the health or safety of any child or person 65 years of age or older, person who is mentally ill or developmentally disabled and receives services from a community program or facility as defined in ORS 430.735 or person who is a resident of a long-term care facility.

(10) When a mediation is subject to section (7) of this rule, the agency will provide to all parties to the mediation and the mediator a copy of this rule or a citation to the rule and an explanation of where a copy of the rule may be obtained. Violation of this provision does not waive confidentiality or inadmissibility.

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

Stat. Authority: ORS 413.042

Stats. Implemented: ORS 36.224, 36.228, 36.230, 36.232 & 36.234

Hist.: OHA 9-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; OHA 25-2011, f. 10-31-11, cert. ef. 11-1-11

943-014-0205

Confidentiality and Inadmissibility of Workplace Interpersonal Dispute Mediation Communications

(1) This rule applies to workplace interpersonal disputes, which are disputes involving the interpersonal relationships between this agency’s employees, officials or employees and officials. This rule does not apply to disputes involving the negotiation of labor contracts or matters about which a formal grievance under a labor contract, a tort claim notice or a lawsuit has been filed.

(2) The words and phrases used in this rule have the same meaning as given to them in ORS 36.110 and 36.234.

(3) Nothing in this rule affects any confidentiality created by other law.

(4) To the extent mediation communications would otherwise be compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in ORS 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary in section (9) of this rule.

(5) Disclosures by Mediator. A mediator may not disclose or be compelled to disclose mediation communications in a mediation and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding unless:

(a) All the parties to the mediation and the mediator agree in writing to the disclosure; or

(b) The mediation communication may be disclosed or introduced into evidence in a subsequent proceeding as provided in subsections (c) or (h)–(j) of section (7) of this rule; or

(c) The mediation communication includes information related to the health or safety of any child, then the mediation communication may be disclosed and may be admitted into evidence in a subsequent proceeding to the extent the disclosure is necessary to prevent or mitigate a threat or danger to the health or safety of any child.

(d) The mediation communication includes information relating to suffering by or commission of abuse upon certain persons and that information would otherwise be required to be reported by a public or private official under the provisions of ORS 124.060 (person 65 years of age or older), 430.765 (1) and (2) (person who is mentally ill or developmentally disabled who is 18 years of age or older and receives services from a community program or facility) or 441.640 (person who is a resident in a long-term care facility), in which case that portion of the mediation communication may be disclosed as required by statute.

(6) Confidentiality and Inadmissibility of Mediation Communications. Except as provided in section (7) of this rule, mediation communications in mediations involving workplace interpersonal disputes are confidential and may not be disclosed to any other person, are not admissible in any subsequent administrative, judicial or arbitration proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent proceeding, or introduced into evidence by the parties or the mediator in any subsequent proceeding so long as:

(a) The parties to the mediation and the agency have agreed in writing to the confidentiality of the mediation; and

(b) The person agreeing to the confidentiality of the mediation on behalf of the agency:

(A) Is neither a party to the dispute nor the mediator; and

(B) Is designated by the agency to authorize confidentiality for the mediation; and

(C) Is at the same or higher level in the agency than any of the parties to the mediation or who is a person with responsibility for human resources or personnel matters in the agency, unless the agency head or member of the governing board is one of the persons involved in the interpersonal dispute, in which case the Governor or the Governor’s designee.

(7) Exceptions to confidentiality and inadmissibility.

(a) Any statements, memoranda, work products, documents and other materials, otherwise subject to discovery that were not prepared specifically for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding.

(b) Any mediation communications that are public records, as defined in ORS 192.410(4), and were not specifically prepared for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential or privileged under state or federal law.

(c) A mediation communication is not confidential and may be disclosed by any person receiving the communication to the extent that person reasonably believes that disclosing the communication is necessary to prevent the commission of a crime that is likely to result in death or bodily injury to any person. A mediation communication is not confidential and may be disclosed in a subsequent proceeding to the extent its disclosure may further the investigation or prosecution of a felony crime involving physical violence to a person.

(d) The parties to the mediation may agree in writing that all or part of the mediation communications are not confidential or that all or part of the mediation communications may be disclosed and may be introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential, privileged or otherwise prohibited from disclosure under state or federal law.

(e) A party to the mediation may disclose confidential mediation communications to a person if the party’s communication with that person is privileged under ORS chapter 40 or other provision of law. A party to the mediation may disclose confidential mediation communications to a person for the purpose of obtaining advice concerning the subject matter of the mediation, if all the parties agree.

(f) A written mediation communication may be disclosed or introduced as evidence in a subsequent proceeding at the discretion of the party who prepared the communication so long as the communication is not otherwise confidential under state or federal law and does not contain confidential information from the mediator or another party who does not agree to the disclosure.

(g) In any proceeding to enforce, modify or set aside a mediation agreement, a party to the mediation may disclose mediation communications and such communications may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of mediation communications or agreements to persons other than the parties to the agreement.

(h) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, mediation communications are not confidential and may be disclosed and may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements.

(i) To the extent a mediation communication contains information the substance of which is required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that portion of the communication may be disclosed as required by statute.

(j) The mediator may report the disposition of a mediation to the agency at the conclusion of the mediation so long as the report does not disclose specific confidential mediation communications. The agency or the mediator may use or disclose confidential mediation communications for research, training or educational purposes, subject to the provisions of ORS 36.232(4).

(k) The mediation communication may be disclosed and may be admitted into evidence in a subsequent proceeding to the extent the disclosure is necessary to prevent or mitigate a threat or danger to the health or safety of any child or person 65 years of age or older, person who is mentally ill or developmentally disabled and receives services from a community program or facility as defined in ORS 430.735 or person who is a resident of a long-term care facility.

(8) The terms of any agreement arising out of the mediation of a workplace interpersonal dispute are confidential so long as the parties and the agency so agree in writing. Any term of an agreement that requires an expenditure of public funds, other than expenditures of $1,000 or less for employee training, employee counseling or purchases of equipment that remain the property of the agency, may not be made confidential.

(9) When a mediation is subject to section (6) of this rule, the agency will provide to all parties to the mediation and to the mediator a copy of this rule or an explanation of where a copy may be obtained. Violation of this provision does not waive confidentiality or inadmissibility.

Stat. Auth.: ORS 413.042

Stats. Implemented: ORS 36.224, 36.228, 36.230, 36.232 & 36.234

Hist.: OHA 9-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; OHA 25-2011, f. 10-31-11, cert. ef. 11-1-11

 

Rule Caption: Electronic Data Transmission (EDT) Rule.

Adm. Order No.: OHA 26-2011

Filed with Sec. of State: 10-31-2011

Certified to be Effective: 11-1-11

Notice Publication Date: 10-1-2011

Rules Adopted: 943-120-0100, 943-120-0110, 943-120-0112, 943-120-0114, 943-120-0116, 943-120-0118, 943-120-0120, 943-120-0130, 943-120-0140, 943-120-0150, 943-120-0160, 943-120-0165, 943-120-0170, 943-120-0180, 943-120-0190, 943-120-0200

Rules Repealed: 943-120-0100(T), 943-120-0110(T), 943-120-0112(T), 943-120-0114(T), 943-120-0116(T), 943-120-0118(T), 943-120-0120(T), 943-120-0130(T), 943-120-0140(T), 943-120-0150(T), 943-120-0160(T), 943-120-0165(T), 943-120-0170(T), 943-120-0180(T), 943-120-0190(T), 943-120-0200(T)

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

Rules Coordinator: Evonne Alderete—(503) 932-9663

943-120-0100

Definitions

The following definitions apply to OAR 943-120-0100 through 943-120-0200:

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

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

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

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

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

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

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

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

(9) “Covered Entity” means a health plan, health care clearing house, health care provider who transmits any health information in electronic form in connection with a transaction covered by 45 CFR 162.100 through 162.1902, or allied agency that transmits any health information in electronic form in connection with a transaction, including direct data entry (DDE), and who must comply with the National Provider Identifier (NPI) requirements of 45 CFR 162.402 through 162.414.

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

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

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

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

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

(15) “Electronic Data Interchange (EDI)” means the exchange of business documents from application to application in a federally mandated format or, if no federal standard has been promulgated, using bulk transmission processes and other formats as the Authority designates for EDI transactions. For purposes of these rules (OAR 943-120-0100 through 943-120-0200), EDI does not include electronic transmission by web portal.

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

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

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

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

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

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

(22) “HIPAA Transaction Rule” means the standards for electronic transactions at 45 CFR Part 160 and 162 as revised effective January 16, 2009 (from version in effect on January 1, 2008) adopted by the Department of Health and Human Services (DHHS) to implement the Health Insurance Portability and Accountability Act of 1996, 42 USC 1320d et. seq.

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

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

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

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

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

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

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

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

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

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

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

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

(35) “Security Access Codes” means the access code assigned by the Authority to the web portal submitter or EDI submitter for the purpose of allowing access to the Authority’s information system, including the web portal, to execute data transmissions or otherwise carry out the express terms of a trading partner agreement, provider enrollment agreement, and these rules. Security access codes may include passwords, PINs, or other codes. For password standards, refer to the Authority’s ISPO best practice: http://www.dhs.state.or.us/policy/admin/security/090_002.htm.

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

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

(a) Classification of components;

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

(c) Delineation of procedures.

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

(39) “Submitter” means a provider, PHP, clinic, or allied agency that may or may not have entered into a Trading Partner Agreement depending upon whether the need is to exchange Electronic Data Transactions or access the Authority’s Web Portal.

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

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

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

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

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

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

(46) “Web Portal” means a site on the World Wide Web that provides secure access with personalized capabilities to its visitors and a pathway to other content designed for use with the Authority specific DDE applications.(47) “Web Portal Submitter” means an individual or entity authorized to establish an electronic media connection with the Authority to conduct a DDE transaction. A web portal submitter may be a provider or a provider’s agent.

Stat. Auth.: ORS 413.042 &414.065

Stats. Implemented: ORS 413.042 & 414.065

Hist.: OHA 13-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; OHA 26-2011, f. 10-31-11, cert. ef. 11-1-11

943-120-0110

Purpose

(1) These rules establish requirements applicable to providers, PHPs, and allied agencies that want to conduct electronic data transactions with the Authority. These rules govern the conduct of all web portal or EDI transactions with the Authority. These rules only apply to services or items that are paid for by the Authority. If the service or item is paid for by a plan or an allied agency, these rules do not apply.

(2) These rules establish the Authority’s electronic data transaction requirements for purposes of the Health Insurance Portability and Accountability Act of 1996, 42 USC 1320d–1320d-8, Public Law 104-191, sec. 262 and sec. 264, and the implementing standards for electronic transactions rules. Where a federal HIPAA standard has been adopted for an electronic data transaction, this rule implements and does not alter the federal standard.

(3) These rules establish procedures that must be followed by any provider, PHP, or allied agency in the event of a security or privacy incident, regardless of whether the incident is related to the use of an electronic data transaction.

Stat. Auth.: ORS 413.042 &414.065

Stats. Implemented: ORS 413.042 & 414.065

Hist.: OHA 13-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; OHA 26-2011, f. 10-31-11, cert. ef. 11-1-11

943-120-0112

Scope and Sequence of Electronic Data Transmission Rules

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

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

(a) Automated voice response, via a telephone;

(b) Web portal access;

(c) EDI submitter access; or

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

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

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

(b) Web portal access;

(c) EDI submitter access; or

(d) POS for pharmacy providers.

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

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

(6) Providers and allied agencies that continue to use only paper formats for claims transactions are only subject to the confidentiality and security rule, OAR 943-120-0170.

Stat. Auth.: ORS 413.042 &414.065

Stats. Implemented: ORS 413.042 & 414.065

Hist.: OHA 13-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; OHA 26-2011, f. 10-31-11, cert. ef. 11-1-11

943-120-0114

Provider Enrollment Agreement

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

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

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

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

(c) Providers using the PIN are responsible for protecting the confidentiality and security of the PIN pursuant to OAR 943-120-0170.

Stat. Auth.: ORS 413.042 &414.065

Stats. Implemented: ORS 413.042 & 414.065

Hist.: OHA 13-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; OHA 26-2011, f. 10-31-11, cert. ef. 11-1-11

943-120-0116

Web Portal Submitter

(1) Any provider activating their web portal access for web portal submission may be a web portal submitter. The provider will be referred to as the web portal submitter when functioning in that capacity, and shall be required to comply with these rules governing web portal submitters.

(2) The authorized signer of the provider enrollment agreement shall be the individual who is responsible for the provider’s DDE claims submission process.

(a) If a provider submits their own claims directly, the provider will be referred to as the web portal submitter when functioning in that capacity and shall be required to comply with these rules governing web portal submitters.

(b) If a provider uses an agent or clinic to submit DDE claims using the Authority’s web portal, the agent or clinic will be referred to as the web portal submitter when functioning in that capacity and shall be required to comply with these rules governing web portal submitters.

Stat. Auth.: ORS 413.042 &414.065

Stats. Implemented: ORS 413.042 & 414.065

Hist.: OHA 13-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; OHA 26-2011, f. 10-31-11, cert. ef. 11-1-11

943-120-0118

Conduct of Direct Data Entry Using Web Portal

(1) The web portal submitter is responsible for the conduct of the DDE transactions submitted on behalf of the provider, as follows:

(a) Accuracy of Web Portal Submissions. The web portal submitter must take reasonable care to ensure that data and DDE transmissions are timely, complete, accurate, and secure, and must take reasonable precautions to prevent unauthorized access to the information system or the DDE transmission. The Authority will not correct or modify an incorrect DDE transaction prior to processing. The transactions may be rejected and the web portal submitter will be notified of the rejection.

(b) Cost of Equipment. The web portal submitter and the Authority must bear their own information system costs. The web portal submitter must, at their own expense, obtain access to Internet service that is compatible with and has the capacity for secure access to the Authority’s web portal. Web portal submitters must pay their own costs for all charges, including but not limited to charges for equipment, software and services, Internet connection and use time, terminals, connections, telephones, and modems. The Authority is not responsible for providing technical assistance for access to or use of Internet web portal services or the processing of a DDE transaction.

(c) Format of DDE Transactions. The web portal submitter must send and receive all data transactions in the Authority’s approved format. Any attempt to modify or alter the DDE transaction format may result in denial of web portal access.

(d) Re-submissions. The web portal submitter must maintain source documents and back-up files or other means sufficient to re-create a data transmission in the event that re-creation becomes necessary for any purpose, within timeframes required by federal or state law, or by contractual agreement. Back ups, archives, or related files are subject to the terms of these rules to the same extent as the original data transmission.

(2) Security and Confidentiality. To protect security and confidentiality, web portal submitters must comply with the following:

(a) Refrain from copying, reverse engineering, disclosing, publishing, distributing, or altering any data or data transmissions, except as permitted by these rules or the contract, or use the same for any purpose other than that which the web portal submitter was specifically given access and authorization by the Authority or the provider.

(b) Refrain from obtaining access by any means to any data or the Authority’s network and information system for any purpose other than that which the web portal submitter has received express authorization to receive access. If the web portal submitter receives data or data transmissions from the Authority which are clearly not intended for the receipt of web portal submitter, the web portal submitter will immediately notify the Authority and make arrangements to return or re-transmit the data or data transmission to the Authority. After re-transmission, the web portal submitter must immediately delete the data contained in the data transmission from its information system.

(c) Install necessary security precautions to ensure the security of the DDE transmission or records relating to the information system of either the Authority or the web portal submitter when the information system is not in active use by the web portal submitter.

(d) Protect and maintain, at all times, the confidentiality of security access codes issued by the Authority. Security access codes are strictly confidential and specifically subject, without limitation, to all of the restrictions in OAR 943-120-0170. The Authority may change the designated security access codes at any time and in any manner as the Authority in its sole discretion considers necessary.

Stat. Auth.: ORS 413.042 &414.065

Stats. Implemented: ORS 413.042 & 414.065

Hist.: OHA 13-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; OHA 26-2011, f. 10-31-11, cert. ef. 11-1-11

943-120-0120

Registration Process — EDI Transactions

(1) The EDI transaction process is preferred by providers, PHPs, and allied agencies for conducting batch or real time transactions, rather than the individual data entry process used for DDE. EDI registration is an administrative process governed by these rules. The EDI registration process begins with the submission of a TPA by a provider, PHP, clinic, or allied agency, including all requirements and documentation required by these rules.

(2) Trading partners must be Authority providers, PHPs, clinics, or allied agencies with a current Authority contract. The Authority will not accept a TPA from individuals or entities who do not have a current contract with the Authority.

(a) The Authority may receive and hold the TPA for individuals or entities that have submitted a provider enrollment agreement or other pending contract, subject to the satisfactory execution of the pending document.

(b) Termination, revocation, suspension, or expiration of the contract will result in the concurrent termination, revocation, suspension, or expiration of the TPA without any additional notice; except that the TPA will remain in effect to the extent necessary for a trading partner or the Authority to complete obligations involving EDI under the contract for dates of service when the contract was in effect. Contracts that are periodically renewed or extended do not require renewal or extension of the TPA unless there is a lapse of time between contracts.

(c) Failure to identify a current Authority contract during the registration process will result in a rejection of the TPA. The Authority will verify that the contract numbers identified by a provider, PHP, clinic, or allied agency are current contracts.

(d) If contract number or contract status changes, the trading partner must provide the Authority with updated information within five business days of the change in contract status. If the Authority determines that a valid contract no longer exists, the Authority shall discontinue EDI transactions applicable for any time period in which the contract no longer exists; except that the TPA will remain in effect to the extent necessary for the trading partner or the Authority to complete obligations involving EDI under the contract for dates of service when the contract was in effect.

(3) Trading Partner Agreement. To register as a trading partner with the Authority, a provider, PHP, clinic, or allied agency must submit a signed TPA to the Authority.

(4) Application for Authorization. In addition to the requirements of section (3) of this rule, a trading partner must submit an application for authorization to the Authority. The application provides specific identification and legal authorization from the trading partner for an EDI submitter to conduct EDI transactions on behalf of a trading partner.

(5) Trading Partner Agents. A trading partner may use agents to facilitate the electronic transmission of data. If a trading partner will be using an agent as an EDI submitter, the application for authorization required under section (4) of this rule must identify and authorize an EDI submitter and must include the EDI certification signed by an EDI submitter before the Authority may accept electronic submission from or send electronic transmission to an EDI submitter.

(6) EDI Registration. In addition to the requirements of section (3) of this rule, a trading partner must also submit its EDI registration form. This form requires the trading partner or its authorized EDI submitter to register an EDI submitter and the name and type of EDI transaction they are prepared to conduct. Signature of the trading partner or authorized EDI submitter is required on the EDI registration form. The registration form will also permit the trading partner to identify the individuals or EDI submitters who are authorized to submit or receive EDI registered transactions.

(7) Review and Acceptance Process. The Authority will review the documentation provided to determine compliance with sections (1) through (6) of this rule. The information provided may be subject to verification by the Authority. When the Authority determines that the information complies with these rules, the Authority will notify the trading partner and EDI submitter by email about any testing or other requirements applicable to place the registered transaction into a production environment.

Stat. Auth.: ORS 413.042 &414.065

Stats. Implemented: ORS 413.042 & 414.065

Hist.: OHA 13-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; OHA 26-2011, f. 10-31-11, cert. ef. 11-1-11

943-120-0130

Trading Partner as EDI Submitter — EDI Transactions

(1) A trading partner may be an EDI submitter. Registered trading partners that also qualify as an EDI submitter may submit their own EDI transactions directly to the Authority. A trading partner will be referred to as an EDI submitter when functioning in that capacity and will be required to comply with applicable EDI submitter rules, except as provided in section (3) of this rule.

(2) Authorization and Registration Designating Trading Partner as EDI Submitter. Before acting as an EDI submitter, a trading partner must designate in the application for application that they are an EDI submitter who is authorized to send and receive data transmissions in the performance of EDI transactions. A trading partner must complete the “Trading Partner Application for Authorization to Submit EDI Transactions” and the “EDI Submitter Information” required in the application. A trading partner must also submit the EDI registration form identifying them as an EDI submitter. A trading partner must notify the Authority of any material changes in the information no less than ten days prior to the effective date of the change.

(3) EDI Submitter Certification Conditions. Where a trading partner is acting as its own EDI submitter, the trading partner is not required to submit the EDI submitter certification conditions in the application for authorization applicable to agents.

Stat. Auth.: ORS 413.042 &414.065

Stats. Implemented: ORS 413.042 & 414.065

Hist.: OHA 13-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; OHA 26-2011, f. 10-31-11, cert. ef. 11-1-11

943-120-0140

Trading Partner Agents as EDI Submitters — EDI Transactions

(1) Responsibility for Agents. If a trading partner uses the services of an agent, including but not limited to an EDI submitter in any capacity in order to receive, transmit, store, or otherwise process data or data transmissions or perform related activities, a trading partner shall be fully responsible to the Authority for the agent’s acts.

(2) Notices Regarding EDI Submitter. Prior to the commencement of an EDI submitter’s services, a trading partner must designate in the application for authorization the specific EDI submitters that are authorized to send and receive data transmissions in the performance of EDI transactions of a trading partner. A trading partner must complete the “Trading partner Authorization of EDI Submitter” and the “EDI Submitter Information” required in the application. A trading partner must also submit the EDI registration form identifying and providing information about an EDI submitter. A trading partner or authorized EDI submitter must notify the Authority of any material changes in the EDI submitter authorization or information no less than five days prior to the effective date of the changes.

(3) EDI Submitter Authority. A trading partner must authorize the actions that an EDI submitter may take on behalf of a trading partner. The application for authorization permits a trading partner to authorize which decisions may only be made by a trading partner and which decisions are authorized to be made by an EDI submitter. The EDI submitter information authorized in the application for authorization will be recorded by the Authority in an EDI submitter profile. The Authority may reject EDI transactions from an EDI submitter acting without authorization from a trading partner.

(4) EDI Submitter Certification Conditions. Each authorized EDI submitter acting as an agent of a trading partner must execute and comply with the EDI submitter certification conditions that are incorporated into the application for authorization. Failure to include the signed EDI submitter certification conditions with the application shall result in a denial of EDI submitter authorization by the Authority. Failure of an EDI submitter to comply with the EDI submitter certification conditions may result in termination of EDI submitter registration for EDI transactions with the Authority.

(5) EDI Submitters Responsibilities. In addition to the requirements of section (1) of this rule, a trading partner is responsible for ensuring that an EDI submitter makes no unauthorized changes in the data content of all data transmissions or the contents of an envelope, and that an EDI submitter will take all appropriate measures to maintain the timeliness, accuracy, truthfulness, confidentiality, security, and completeness of each data transmission. A trading partner is responsible for ensuring that its EDI submitters are specifically advised of, and will comply with, the terms of these rules and any TPA.

Stat. Auth.: ORS 413.042 &414.065

Stats. Implemented: ORS 413.042 & 414.065

Hist.: OHA 13-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; OHA 26-2011, f. 10-31-11, cert. ef. 11-1-11

943-120-0150

Testing — EDI Transactions

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

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

(3) When third party and/or business-to-business testing is completed to the Authority’s satisfaction, the Authority will notify an EDI submitter that it will register and accept the transactions in the production environment. This notification authorizes an EDI submitter to submit the registered EDI transactions to the Authority for processing and response, as applicable. If there are any changes in the trading partner or EDI submitter authorization, profile data or EDI registration information on file with the Authority, updated information must be submitted to the Authority as required in OAR 943-120-0190.

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

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

Stat. Auth.: ORS 413.042 &414.065

Stats. Implemented: ORS 413.042 & 414.065

Hist.: OHA 13-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; OHA 26-2011, f. 10-31-11, cert. ef. 11-1-11

943-120-0160

Conduct of Transactions — EDI Transactions

(1) EDI Submitter Obligations. An EDI submitter is responsible for the conduct of the EDI transactions registered on behalf of a trading partner, including the following:

(a) EDI Transmission Accuracy. An EDI submitter shall take reasonable care to ensure that data and data transmissions are timely, complete, accurate, and secure; and shall take reasonable precautions to prevent unauthorized access to the information system, the data transmission, or the contents of an envelope which is transmitted either to or from the Authority. The Authority will not correct or modify an incorrect transaction prior to processing. The transaction may be rejected and an EDI submitter notified of the rejection.

(b) Re-transmission of Indecipherable Transmissions. Where there is evidence that a data transmission is lost or indecipherable, the sending party must make best efforts to trace and re-transmit the original data transmission in a manner which allows it to be processed by the receiving party as soon as practicable.

(c) Cost of Equipment. An EDI submitter and the Authority will pay for their own information system costs. An EDI submitter shall, at its own expense, obtain and maintain its own information system. An EDI submitter shall pay its own costs for all charges related to data transmission including, without limitation, charges for information system equipment, software and services, electronic mailbox maintenance, connect time, terminals, connections, telephones, modems, any applicable minimum use charges, and for translating, formatting, sending, and receiving communications over the electronic network to the electronic mailbox, if any, of the Authority. The Authority is not responsible for providing technical assistance in the processing of an EDI transaction.

(d) Back-up Files. EDI submitters must maintain adequate data archives and back-up files or other means sufficient to re-create a data transmission in the event that re-creation becomes necessary for any purpose, within timeframes required by state and federal law, or by contractual agreement. Data archives or back-up files shall be subject to these rules to the same extent as the original data transmission.

(e) Transmissions Format. Except as otherwise provided herein, EDI submitters must send and receive all data transmissions in the federally mandated format, or (if no federal standard has been promulgated) other formats as the Authority designates.

(f) Testing. EDI submitters must, prior to the initial data transmission and throughout the term of a TPA, test and cooperate with the Authority in the testing of information systems as the Authority considers reasonably necessary to ensure the accuracy, timeliness, completeness, and confidentiality of each data transmission.

(2) Security and Confidentiality. To protect security and confidentiality of transmitted data, EDI submitters must comply with the following:

(a) Refrain from copying, reverse engineering, disclosing, publishing, distributing, or altering any data, data transmissions, or the contents of an envelope, except as necessary to comply with the terms of these rules or the TPA, or use the same for any purpose other than that which an EDI submitter was specifically given access and authorization by the Authority or a trading partner;

(b) Refrain from obtaining access by any means to any data, data transmission, envelope, mailbox, or the Authority’s information system for any purpose other than that which an EDI submitter has received express authorization. If an EDI submitter receives data or data transmissions from the Authority which clearly are not intended for an EDI submitter, an EDI submitter shall immediately notify the Authority and make arrangements to return or re-transmit the data or data transmission to the Authority. After re-transmission, an EDI submitter shall immediately delete the data contained in the data transmission from its information system;

(c) Install necessary security precautions to ensure the security of the information systems or records relating to the information systems of either the Authority or an EDI submitter when the information system is not in active use by an EDI submitter;

(d) Protect and maintain the confidentiality of security access codes issued by the Authority to an EDI submitter; and

(e) Provide special protection for security and other purposes, where appropriate, by means of authentication, encryption, the use of passwords, or other means. Unless otherwise provided in these rules, the recipient of a protected data transmission must at least use the same level of protection for any subsequent transmission of the original data transmission.

(3) Authority Obligations. The Authority shall:

(a) Make available to an EDI submitter, by electronic media, those types of data and data transmissions which an EDI submitter is authorized to receive.

(b) Inform an EDI submitter of acceptable formats in which data transmissions may be made and provide notification to an EDI submitter within reasonable time periods consistent with HIPAA transaction standards, if applicable, or at least 30 days prior by electronic notice of other changes in formats.

(c) Provide an EDI submitter with security access codes that will allow an EDI submitter access to the Authority’s information system. Security access codes are strictly confidential and EDI submitters must comply with all of the requirements of OAR 943-120-0170. The Authority may change the designated security access codes at any time and manner as the Authority, in its sole discretion, deems necessary. The release of security access codes shall be limited to authorized electronic data personnel of an EDI submitter and the Authority with a need to know.

(4) Department of Consumer and Business Services (DCBS) submission standards Health insurers and health care entities in Oregon shall make all necessary actions required by the DCBS Oregon Companion Guides to comply with the Health Insurance Reform Administrative Streamlining and Simplification as specified in OAR 836-100-0100 to 836-100-0120.

Stat. Auth.: ORS 413.042 &414.065

Stats. Implemented: ORS 413.042 & 414.065

Hist.: OHA 13-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; OHA 26-2011, f. 10-31-11, cert. ef. 11-1-11

943-120-0165

Pharmacy Point of Sale Access

Pharmacy providers who electronically bill pharmaceutical claims must participate in and submit claims using the POS system, except as provided in OAR 410-121-0150.

Stat. Auth.: ORS 413.042 &414.065

Stats. Implemented: ORS 413.042 & 414.065

Hist.: OHA 13-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; OHA 26-2011, f. 10-31-11, cert. ef. 11-1-11

943-120-0170

Security

(1) Individually Identifiable Health Information. All providers, PHPs, and allied agencies are responsible for ensuring the security of individually identifiable health information, consistent with the requirements of the privacy statutes and regulations, and shall take reasonable action to prevent any unauthorized disclosure of confidential information by a provider, PHP, allied agency, or other agent. A provider, web portal submitter, trading partner, EDI submitter, or other agent must comply with any and all applicable privacy statutes and regulations relating to confidential information.

(2) General Requirements for Electronic Submitters. A provider (web portal submitter), trading partner (EDI submitter), or other agent must maintain adequate security procedures to prevent unauthorized access to data, data transmissions, security access codes, or the Authority’s information system, and must immediately notify the Authority of all unauthorized attempts by any individual or entity to obtain access to or otherwise tamper with the data, data transmissions, security access codes, or the Authority’s information system.

(3) Notice of Unauthorized Disclosures. All providers, PHPs, and allied agencies must promptly notify the Authority of all unlawful or unauthorized disclosures of confidential information that come to its agents’ attention pursuant to the Authority’s ISPO policy: http://www.dhs.state.or.us/policy/admin/security/090_005.pdf, and shall cooperate with the Authority if corrective action is required by the Authority. The Authority shall promptly notify a provider, PHP, or allied agency of all unlawful or unauthorized disclosures of confidential information in relation to a provider, PHP, or allied agency that come to the Authority’s or its agents’ attention, and will cooperate with a provider, PHP, or allied agency if corrective action is required.

(4) Wrongful use of the web portal, EDI systems, or the Authority’s network and information system, or wrongful use or disclosure of confidential information by a provider, allied agency, electronic submitters, or their agents may result in the immediate suspension or revocation of any access granted under these rules or other Authority rules, at the sole discretion of the Authority.

(5) A provider, allied agency, PHP, or electronic submitter must report to the Authority’s Information Security Office at dhsinfo.security@state.or.us and to the Authority program contact individual, any privacy or security incidents that compromise, damage, or cause a loss of protection to confidential information, information assets, or the Authority’s network and security system. Reports must be made in the following manner:

(a) No later than five business days from the date on which a provider, allied agency, PHP, or electronic submitter becomes aware of the incident; and

(b) Provide the results of the incident assessment findings and resolution strategies no later than 30 business days after the report is due under section (4)(a).

(6) A provider, allied agency, PHP, or electronic submitter must comply with the Authority’s requests for corrective action concerning a privacy or security incident and with applicable laws requiring mitigation of harm caused by the unauthorized use or disclosure of confidential information.

Stat. Auth.: ORS 413.042 &414.065

Stats. Implemented: ORS 413.042 & 414.065

Hist.: OHA 13-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; OHA 26-2011, f. 10-31-11, cert. ef. 11-1-11

943-120-0180

Record Retention and Audit

(1) Records Retention. A provider, web portal submitter, trading partner, and EDI submitter shall maintain, for a period of no less than seven years from the date of service, complete, accurate, and unaltered copies of all source documents associated with all data transmissions.

(2) EDI Trade Data Log. An EDI submitter must establish and maintain a trade data log that must record all data transmissions taking place between an EDI submitter and the Authority during the term of a TPA. A trading partner and EDI submitter must take necessary and reasonable steps to ensure that the trade data log constitutes a current, truthful, accurate, complete, and unaltered record of all data transmissions between the parties and must be retained by each party for no less than 24 months following the date of the data transmission. The trade data log may be maintained on electronic media or other suitable means provided that, if necessary, the information may be timely retrieved and presented in readable form.

(3) Right to Audit. A provider must allow and require any web portal submitter to allow, and a trading partner must allow and require an EDI submitter or other agent to allow access to the Authority, the Oregon Secretary of State, the Oregon Department of Justice Medicaid Fraud Unit, or its designees, and DHHS or its designees to audit relevant business records, source documents, data, data transmissions, trade data logs, or information systems of a provider and its web portal submitter, and a trading partner, and its agents, as necessary, to ensure compliance with these rules. A provider must allow and require its web portal submitter to allow, and a trading partner must allow and require an EDI submitter or other agent to allow the Authority, or its designee, access to ensure that adequate security precautions have been made and are implemented to prevent unauthorized disclosure of any data, data transmissions, or other information.

Stat. Auth.: ORS 413.042 &414.065

Stats. Implemented: ORS 413.042 & 414.065

Hist.: OHA 13-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; OHA 26-2011, f. 10-31-11, cert. ef. 11-1-11

943-120-0190

Material Changes

(1) Changes in Any Material Information - EDT Process. A trading partner must submit an updated TPA, application for authorization, or EDI registration form to the Authority within ten business days of any material change in information. A material change includes but is not limited to mailing or email address change, contract number or contract status (termination, expiration, extension), identification of authorized individuals of a trading partner or EDI submitter, the addition or deletion of authorized transactions, or any other change that may affect the accuracy of or authority for an EDI transaction. The Authority may act on data transmissions submitted by a trading partner and its EDI submitter based on information on file in the application for authorization and EDI registration forms until an updated form has been received and approved by the Authority. A trading partner’s signature or the signature of an authorized EDI submitter is required to ensure that an updated TPA, authorization, or EDI registration form is valid and authorized.

(2) Changes in Any Material Information — Web Portal Access. Providers must submit an updated web portal registration form to the Authority within ten business days of any material changes in information. A material change includes but is not limited to mailing or email address change, contract number or contract status (termination, suspension, expiration), identification of web portal submitter contact information, or any other change that may affect the accuracy of or authority for a DDE transaction. The Authority is authorized to act on data transmissions submitted by a provider and its web portal submitter based on information on file in the web portal registration form until an updated form has been received and approved by the Authority. A provider’s signature or the signature of an authorized business representative is required to ensure that an updated web portal registration form is valid and authorized.

(3) Failure to submit a timely updated form may impact the ability of a data transaction to be processed without errors. Failure to submit a signed, updated form may result in the rejection of a data transmission.

Stat. Auth.: ORS 413.042 &414.065

Stats. Implemented: ORS 413.042 & 414.065

Hist.: OHA 13-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; OHA 26-2011, f. 10-31-11, cert. ef. 11-1-11

943-120-0200

Authority System Administration

(1) No individual or entity shall be registered to conduct a web portal or an EDI transaction with the Authority except as authorized under these the rules. Eligibility and continued participation as a provider, PHP, allied agency or web portal submitter in the conduct of DDE transactions, or as a trading partner or EDI submitter in the conduct of registered transactions, is conditioned on the execution and delivery of the documents required in these rules, the continued accuracy of that information consistent with OAR 943-120-0190, and compliance with a requirements of these rules. Data, including confidential information, governed by these rules may be used for purposes related to treatment, payment, and health care operations and for the administration of programs or services by the Authority.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Stat. Auth.: ORS 413.042 &414.065

Stats. Implemented: ORS 413.042 & 414.065

Hist.: OHA 13-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; OHA 26-2011, f. 10-31-11, cert. ef. 11-1-11

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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