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Oregon Bulletin

December 1, 2013

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

Rule Caption: Temporary amendments to OAR 415-065 entitled Health Professionals’ Services Program.

Adm. Order No.: ADS 7-2013(Temp)

Filed with Sec. of State: 11-8-2013

Certified to be Effective: 11-8-13 thru 5-7-14

Notice Publication Date:

Rules Amended: 415-065-0020, 415-065-0055, 415-065-0065

Subject: The purpose of these rules is to establish a consolidated, statewide health professionals’ monitoring program for licensees of participating health licensing boards, as required by ORS 676.190, who are unable to practice with professional skill and safety due to substance use disorders, mental health disorders, or both types of disorders. The program shall provide non-treatment compliance monitoring and reporting services.

Rules Coordinator: Nola Russell—(503) 945-7652

415-065-0020

Audits

(1) The Division shall arrange for an independent third-party every four years to audit the program and to ensure compliance with the program guidelines.

(2) The Division shall report the results of the audit to the Legislative Assembly, the Governor, and the boards.

(3) The Division’s report may not contain individually identifiable information about the licensees.

Stat. Auth.: ORS 413.042 & 676.190

Stats. Implemented: ORS 676.185 - 676.200

Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 3-2012, f. 6-27-12, cert. ef. 7-1-12; ADS 7-2013(Temp), f. & cert. ef. 11-8-13 thru 5-7-14

415-065-0055

Program Requirements

The contractor shall:

(1) Inform the licensee about the program services, requirements, benefits, risks, and confidentiality limitations and ensure that the licensee has signed a consent for services. The consent for services explains:

(a) Information the contractor will give to the board and under what circumstances;

(b) That the board may take action to suspend, restrict, modify, or revoke the licensee’s license or end the licensee’s participation in the program based on information from the contractor.

(2) Enter into a monitoring agreement with the licensee;

(3) Assess the licensee’s compliance with his or her monitoring agreement;

(4) Assess the ability of the licensee’s employer, when an employer exists, to supervise the licensee and an assessment of any documentation of the direct supervisor’s completion of licensee supervision specialized training;

(5) Report the licensee’s substantial noncompliance with his or her monitoring agreement to a noncompliant licensee’s board within one business day after the contractor learns of any substantial noncompliance; and

(6) At least weekly, submit to licensees’ boards:

(a) A list of licensees who were referred to the program by the health profession licensing board and who are enrolled in the program; and

(b) A list of licensees who were referred to the program by the health profession licensing board and who successfully completed the program.

(7) The lists submitted under section 6(a)(b) are exempt from disclosure as a public record under ORS 192.140 to 192.505.

(8) Seek a court order authorizing the contractor to release identifying information to a licensee’s board, including a report of substantial noncompliance as is described in OAR 415-065-0060, if a self-referred licensee enrolled in the program, or a provisionally enrolled licensee with a qualifying diagnosis, revokes his or her consent to report substantial noncompliance to the licensee’s board.

(a) The contractor shall file documents with the court seeking a court order as soon as possible but no later than three business days from the date it was notified that the licensee revoked consent to report substantial noncompliance.

(b) The contractor shall comply with 42 USC & 290dd-2(b)(2); 42 CFR Part 2; the Health Insurance Portability and Accountability Act (HIPAA), Public Law 104-191, 45 CFR Parts 160, 162 and 164 and ORS 179.505, 192.518–192.524 in seeking such a court order.

(c) The contractor shall disclose to the licensee’s board, within one (1) business day, any information the court authorizes it to disclose.

Stat. Auth.: ORS 413.042 & 676.190

Stats. Implemented: ORS 676.185 - 676.200

Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 1-2011(Temp), f. & cert. ef. 2-11-11 thru 8-5-11; ADS 3-2011, f. & cert. ef. 8-16-11; ADS 2-2012, f. & cert. ef. 2-9-122; ADS 3-2012, f. 6-27-12, cert. ef. 7-1-12; ADS 7-2013(Temp), f. & cert. ef. 11-8-13 thru 5-7-14

415-065-0065

Program Services

The contractor shall provide the following services:

(1) Safe Practice Investigations of Self-referred Licensees:

(a) The contractor shall conduct a focused safe-practice investigation of a self-referred licensee to determine whether the licensee’s practice while impaired presents or has presented a danger to the public. The investigation may include contractor interviews with the licensee’s employer, supervisor, co-workers, family, or significant others.

(b) The contractor shall complete the safe-practice investigation within 15 business days of the contractor’s receipt of the independent third party’s evaluation with a qualifying diagnosis. The licensee remains provisionally enrolled in the program during this process.

(2) Monitoring Agreements:

(a) The contractor shall develop and the licensee shall sign an individualized, written monitoring agreement that is consistent with the independent third-party’s evaluation and treatment recommendations unless otherwise authorized by the appropriate board, and on any other relevant and appropriate information, which may include information from employers, supervisors, co-workers, family, and significant others.

(b) The contractor shall amend the monitoring agreement as necessary to respond to changes in the licensee’s situation, with the goal of protecting the public, except that the contractor shall not amend the treatment plan established by the independent third-party evaluation unless authorized by the appropriate board to do so.

(c) The contractor shall give the licensee and their employer, when an employer exists, a copy of the licensee’s monitoring agreement, including any amendments, and shall immediately place a copy of the monitoring agreement, including any amendments, in the licensee’s individual service record.

(d) The monitoring agreement shall:

(A) Require the licensee to participate in the program for at least two years or longer, as specified by board rule or order;

(B) Require the licensee to participate in a treatment provider’s treatment plan;

(C) Outline the limits on the licensee’s health profession practice by the contractor and the board;

(D) Notify the licensee that the program, in its discretion, may require the licensee to obtain an evaluation of the licensee’s fitness to practice before the program removes limits on the licensee’s health profession practice;

(E) Outline methods for the licensee’s employer to monitor and report on the licensee’s safe practice;

(F) Based on the independent third-party evaluator’s evaluation, require the licensee to abstain from all mind-altering or intoxicating substances or potentially addictive drugs, unless, when authorized by the appropriate board to approve drugs, the program approves the licensee to use a particular drug prescribed for the licensee by a person authorized by law to prescribe for the licensee’s documented medical condition;

(G) Require the licensee to report to the program the licensee’s use of mind-altering or intoxicating substances or potentially addictive drugs within 24 hours of the licensee’s use of the substances or drugs;

(H) Require the licensee to submit to random toxicology testing, per an individualized schedule;

(I) Require the licensee to report his or her arrest for or conviction of a misdemeanor or felony crime to the contractor within three business days if the licensee is arrested or convicted;

(J) Require the licensee to report to the contractor any of the licensee’s applications for licensure in other states, changes in employment, changes in practice setting, and changes in residence;

(K) Require the licensee to report at least weekly to the program regarding the licensee’s compliance with the agreement; and

(L) Require the licensee to attend compliance consultation group meetings on an individualized schedule based on the contractor’s assessment of the licensee’s need for additional accountability and structure and based on board’s monitoring requirements.

(e) Boards may provide other requirements by rule, including allowing for practice supervision of sole practice licensees or other licensees not in an employment setting.

(3) Compliance Consultation Group Meetings. If required by a board’s rules, a licensee identified by the board must attend compliance consultation group meetings. Any board-referred or self-referred licensee may elect to attend the meetings. There may be a fee for the meetings.

(a) The contractor shall conduct or arrange for non-treatment compliance consultation group meetings in which a monitoring consultant meets face-to-face, either directly or by tele-video, with licensees identified by a board to determine the licensee’s overall compliance with his or her monitoring agreement and for the licensee to gain peer support for his or her compliance efforts.

(b) A monitoring consultant shall conduct each compliance consultation group meeting.

(c) The monitoring consultants shall assess the licensee’s progress with his or her monitoring agreement and provide holistic progress reports to the contractor regarding the licensee’s status in relation to, but not limited to, his or her: compliance with the monitoring agreement, compliance with the treatment provider’s treatment plan, recovery activities, emotional and physical health, work-place dynamics, and relationship and boundary concerns.

(d) The licensee’s board may elect to pay for the licensee’s participation in the compliance consultation group meetings or the board may require the licensee to pay for the service.

(4) Toxicology Testing. Unless the licensee is diagnosed solely with a mental health disorder and an independent third-party evaluator has not recommended toxicology testing, the contractor shall ensure that:

(a) The licensee receives a baseline toxicology test within five business days of the date the contractor enrolls the licensee in the program;

(b) The licensee receives a final toxicology test before the licensee is deemed to successfully complete the program;

(c) All monitoring agreements contain provisions requiring three types of toxicology testing:

(A) Testing customized to the licensee’s circumstances, including where appropriate requiring expanded toxicology testing drug panels and long-acting alcohol consumption toxicology testing;

(B) Random testing; and

(C) Testing that is required when the contractor has reason to believe that the licensee may have used alcohol or other drugs in violation of the licensee’s monitoring agreement.

(d) The contractor’s toxicology testing laboratory is certified by the Substance Abuse and Mental Health Services Administration and accredited through the College of American Pathologists Forensic Drug Testing Accreditation Program.

(e) In addition, the laboratory shall perform testing in compliance with OAR 333-024-0305 through 333-024-0350.

(f) Urinalysis specimens are collected in a way that preserves the integrity of the specimen. Unless otherwise provided by the licensee’s board by rule, the person collecting the sample must be able to see the licensee void.

(g) If the contractor suspects that the licensee has used alcohol or other drugs in violation of the licensee’s monitoring agreement or suspects that the licensee has attempted to provide a false or dilute urine sample, the licensee may be required to provide a directly observed urine specimen under the procedures described in 49 CFR 40.67(g) through (k), including:

(A) A person of the same gender as the licensee must ask the licensee to raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist, and lower clothing and underpants to demonstrate, by turning around, that the licensee does not have a prosthetic device to dispense urine; and

(B) A person of the same gender as the licensee must watch the urine go from the licensee’s body into the specimen collection container.

Stat. Auth.: ORS 413.042 & 676.190

Stats. Implemented: ORS 676.185 - 676.200

Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 2-2012, f. & cert. ef. 2-9-12; ADS 7-2013(Temp), f. & cert. ef. 11-8-13 thru 5-7-14

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, 2012.

2.) Copyright 2013 Oregon Secretary of State: Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
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