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OREGON HEALTH AUTHORITY,
ADDICTIONS AND MENTAL HEALTH DIVISION: MENTAL HEALTH SERVICES

 

DIVISION 12

ADMINISTRATIVE PRACTICE AND PROCEDURE

[ED. NOTE: Administrative Practice and Procedure Rules, OAR 309-012-0000 & 309-012-0005, were repealed effective 6-1-06. The Department will adhere to the Procedural Rules in OAR 943-001.]

309-012-0025

Procedures for Appeals of Reimbursement Orders

(1) Purpose. This rule prescribes procedures for appeals of Reimbursement Orders issued by the Division.

(2) Statutory Authority and Procedure. This rule is authorized by ORS 179.640, 413.042 & 179.040 and carries out the provisions of ORS 179.610 to 179.770.

(3) Definitions. As used in this rule:

(a) “Administrator” means the Administrator of the Addictions and Mental Health Division;

(b) “Authorized Representative” means those parties named in ORS 305.240, or those parties who are determined to have the authority to represent the person;

(c) “Division” means the Addictions and Mental Health Division of the Oregon Health Authority;

(d) “Hearing” means the hearing authorized by ORS 179.640 for the purpose of review of Reimbursement Orders and modified Reimbursement Orders issued pursuant to ORS 179.640;

(e) “Hearings Officer” means any person designated by the Administrator to hold hearings on matters coming before the Division. Staff of the Reimbursement Section of the Division may not be designated as hearings officers;

(f) “Informal Conference” means a proceeding held before the appeal hearing to allow the person to obtain a review of the action or proposed action without the necessity of a formal hearing;

(g) “Person” means:

(A) A patient who is receiving or has received treatment or care at a state institution for the mentally ill;

(B) A current or former resident at a state institution for the mentally retarded;

(C) The estate of the person;

(D) Any other individual or entity having a financial interest in contesting a Reimbursement Order.

(h) “Reimbursement Order” means the order issued to determine the person’s ability to pay pursuant to ORS 179.640;

(i) “Service” means deposit of a Reimbursement Order by U.S. mail, state mail, or deposit with a state institution for hand delivery;

(j) “State Institution” means Dammasch State Hospital in Wilsonville, Oregon State Hospital in Salem, Fairview Training Center in Salem, and Eastern Oregon Hospital and Training Center in Pendleton.

(4) Authorization for Hearing: A hearing before the Administrator or a Hearings Officer shall be granted to a person who appeals to the Administrator in the following instances:

(a) A person may appeal the Division’s determination or redetermination of the person’s ability to pay the state’s charges for institutional care and maintenance. The appeal must be submitted within 60 days of the service of the Reimbursement Order;

(b) The Division, on or about the time of the person’s discharge, shall determine whether or not any of the funds previously paid by the person or on his or her behalf to the State of Oregon to cover his or her cost of care should be reimbursed to the person to satisfy his or her financial needs upon release, or whether any of the previous Reimbursement Orders for the current hospitalization should be modified. This redetermination may be appealed within 60 days of service.

(5) Request for Hearing:

(a) No particular format for a request for a hearing is required, but, to be considered, each request must be in writing and must specify:

(A) The name and address of the person requesting the hearing;

(B) The action being appealed, including:

(i) The year or years involved;

(ii) A reference to any Division correspondence on the subject known to the person;

(iii) Why the action being appealed is claimed to be incorrect;

(iv) The specific relief requested.

(b) The request for a hearing must be signed by the person or his or her authorized representative;

(c) All requests for hearings shall be filed by mailing or delivering the appeal to the Reimbursement Section, Addictions and Mental Health Division, 500 Summer St. NE, E-86, Salem, OR 97301;

(d) If the request for a hearing is considered insufficient in content by the Division, the Division may require the request to be reasonably supplemented with additional information before any further action is taken on the appeal;

(e) Prior to the time of an appeal hearing, if there is no objection by the person, the Hearings Officer may refer the matter in controversy for an informal conference for settlement or simplification of issues.

(6) Authorization for Informal Conference:

(a) A person who has requested an appeal hearing pursuant to section (5) of this rule may request that he or she have an informal conference with a representative from the Reimbursement Section before the formal appeal hearing. Any request for an informal conference may be granted at the discretion of the Division;

(b) Such conferences are informal. A person may represent himself or herself or may choose someone to act as his or her representative. The purpose of the conference is to allow a person to obtain a review of the action or proposed action (without the necessity of a formal appeal hearing), if he or she believes that an action made or proposed by the Division is incorrect;

(c) Payment of the proposed charge for institutional care and maintenance will not jeopardize a conference request or decision.

(7) Request for Informal Conference:

(a) A conference request may be filed either with a hearing request required in section (5) of this rule or subsequent to the hearing request but at least 14 days before the date of a scheduled hearing;

(b) The conference request shall be in writing and must specify:

(A) The name and address of the person requesting the conference;

(B) The reason for the request, including:

(i) In what respect the action or proposed action of the Division is erroneous;

(ii) Reference to any prior Division correspondence on the subject.

(c) If a hearing has been requested, the material submitted as part of the request for a hearing may be used at the informal conference;

(d) The conference request should be addressed to the Reimbursement Section, Addictions and Mental Health Division, 500 Summer St. NE, E-86, Salem, OR 97301.

(8) Conduct of Informal Conference. A conference shall be held at a place designated by the Division. To the extent practical, the conference will be held at a location convenient to the person. The conference shall begin with a statement from the Division. The person requesting the conference shall then state his or her position, the facts as he or she knows them, and his or her questions of persons present to clarify the issues.

(9) Disposition of Informal Conference:

(a) After the conference, the Reimbursement Section will issue a proposed order disposing of the appeal for approval by the Administrator. The written order, approved by the Administrator, will be sent to the person within 14 days of the conference, unless during the conference the Division action is conceded by the person to be correct;

(b) The person’s request for a hearing will be stayed pending the outcome of the conference, at which time the request for a hearing will either be withdrawn by the person should he or she no longer desire to proceed, or the hearing will be rescheduled;

(c) When a decision favors the person, the person will receive a refund;

(d) The person may request within 30 days that the decision made at an informal conference be reconsidered by the Administrator. The person should set forth the specific ground or grounds for requesting the reconsideration.

(10) Subpoenas and Depositions:

(a) The Division shall issue subpoenas to any party to a hearing upon request. Witnesses appearing pursuant to subpena, other than parties or employees of the Division, shall receive fees and mileage as prescribed by law for witnesses in a civil action;

(b) Depositions may be taken on petition of any party to a hearing.

(11) Conduct of Appeal Hearing:

(a) To the extent practical, the Division, in designating the location of the hearing, shall designate a place convenient for the person;

(b) The hearing shall be conducted by and shall be under the control of the Hearings Officer;

(c) The Hearings Officer shall administer an oath or affirmation of the witnesses;

(d) A verbatim record shall be made of all testimony and rulings. Parties who wish a transcription of the proceedings should make arrangements with the Division. If the Division determines the record is no longer needed, the Division may destroy the record after 180 days following the issuance of a final order, unless within the 180-day period arrangements are made by the person for further retention by the Division;

(e) The hearing shall begin with a statement of the facts and issues involved. The statement shall be given by a person requested to do so by the Hearings Officer;

(f) The Hearings Officer may set reasonable time limits for oral presentation and may exclude or limit testimony that is cumulative, repetitious or immaterial.

(12) Evidentiary Rules:

(a) All evidence of a type commonly relied upon by reasonably prudent persons in conduct of their serious affairs shall be admissible;

(b) The Hearings Officer shall receive all physical and documentary evidence presented by parties where practicable. All offered evidence is subject to the Hearings Officer’s power to exclude or limit cumulative, repetitious or immaterial matter;

(c) Evidence objected to may be received by the Hearings Officer, and rulings on its admissibility or exclusion may be made at the time a final order is issued;

(d) At the time of the hearing, the person will be notified that any exhibit introduced as evidence at the hearing will be destroyed after 180 days following the issuance of a final order, unless within the 180-day period, written request is made by the person presenting the exhibit for the return of the exhibit;

(e) The burden of presenting evidence to support a fact or position in a hearing rests on the proponent of the fact or position.

(13) Disposition of Appeal:

(a) After a hearing has been held, the Hearings Officer shall issue a proposed order, including findings of fact and conclusions of law. If the proposed order is adverse to the person, it shall be served upon the person and an opportunity afforded to the person to file exceptions and present written argument to the Administrator before a final order is issued. A person has a ten-day period in which to file exceptions and/or written argument to a proposed order;

(b) Final orders on a hearing shall be in writing and shall include:

(A) Rulings on admissibility of offered evidence;

(B) Findings of fact — Those matters which are either agreed as fact or which, when disputed, are determined by the Administrator, on substantial evidence, to be a fact over contentions to the contrary;

(C) Conclusions of law — Applications of the controlling law to the facts found and the legal results arising there from;

(D) The action taken by the Division as a result of the findings of fact and conclusions of law; and

(E) Notice of the person’s right to judicial review of the order.

(c) Parties to a hearing and their attorneys shall be mailed a copy of the final order and accompanying findings and conclusions.

(14) Administrative Review of Final Order:

(a) A person may file a petition for administrative review of the final order with the Division within 30 days after the order is served. The petition shall set forth the specific ground or grounds for requesting the review. The petition may be supported by a written argument. Examples of sufficient grounds are:

(A) The Division action is not supported by the written findings, or the written findings are inaccurate; or

(B) Pertinent information was available at the time of the original hearing which, through no fault of the party, was not considered; or

(C) The action of the Division is inconsistent with its rules or policies or is contrary to law; and

(D) The matters raised on appeal may have an effect on the original decision.

(b) The Division may grant a rehearing petition if sufficient reason therefore is made to appear. The rehearing may be limited by the Division to specific matters. If a rehearing is held, an amended order shall be entered;

(c) If the Division denies the appeal, it shall inform the person in writing of the denial;

(d) If the administrative review has been requested, the Division order is not final until the administrative review is granted or denied.

(15) Time Extensions. Where any provision of this rule specifies a particular time period in which a person must act, for good cause shown, the Hearings Officer may, in his or her discretion, allow a reasonable extension of time if so doing is not inconsistent with ORS 179.640 to 179.650.

(16) Appeal. An appeal from the final order of the Division may be taken as provided by law. Caution: Either ORS 179.650 or 183.482 may be applicable. See League of Women Voters v. Lane County Boundary Commission, 32 Or. App. 53, 573P.2d 1255, rev. denied, 283 Or. 503 (1978).

Stat. Auth.: ORS 179.770, 413.042 & 430.021
Stats. Implemented: 179.610 – 179.770
Hist.: MHD 6-1979(Temp), f. & ef. 9-20-79, MHD 1-1980, f. & ef. 1-14-80

Determination of Ability to Pay Cost ofCare in State Institutions

309-012-0030

Purpose and Statutory Authority

(1) Purpose. Individuals admitted to the Division institutions are liable for the full cost of their care, but are required to pay only what they are able to pay. This rule establishes guidelines for determining a person’s ability to pay for the cost of care in a state institution.

(2) Statutory Authority. This rule is made necessary by ORS 179.610, authorized by ORS 413.042 and carries out the provisions of ORS 179.610 to 179.770.

Stat. Auth.: ORS 179.770, 413.042 & 431.021
Stats. Implemented: ORS 179.610 – 179.770
Hist.: MHD 5-1980(Temp), f. & ef. 4-18-80; MHD 14-1980, f. & ef. 6-24-80; MHD 9-1991, f. 12-13-91, cert. ef. 12-16-91

309-012-0031

Definitions

As used in these rules:

(1) “Ability to Pay” means the ability of a person in a state institution to pay past, current, or ongoing cost of care, as determined by the Division in accordance with these rules.

(2) “Assets” means, excluding income, the total value of an individual’s equity in real and personal property of whatever kind or nature. Assets include, but are not limited to the individual’s stocks, bonds, cash, accounts receivable, moneys due, or any other interests, whether they are self-managed, or held by the individual’s authorized representative, or by any other individual or entity on behalf of the individual. “Assets” held in trust are subject to laws generally applicable to trusts.

(3) “Authorized Representative” means an individual or entity appointed under authority of ORS 125, as guardian or conservator of a person, who has the ability to control the person’s finances, and any other individual or entity holding funds or receiving benefits or income on behalf of any person.

(4) “Benefits from Health Insurance” means payments from insurance programs with the limited purpose of paying for the cost of care provided to an individual by a hospital or other health care provider. Benefits of this type include, but are not limited to payments from:

(a) Private and group health insurance policies;

(b) The Medicare and Medicaid programs;

(c) Any other policies or programs with the purpose of paying for the costs of inpatient and/or outpatient care.

(5) “Charges” means the amount the Division has determined that the person is required to pay toward the cost of care based on his or her ability to pay.

(6) “Cost of Care” means the person’s full liability for care as determined by the Division using the rates established in accordance with ORS 179.701.

(7) “Dependents” means individuals whom a person has a legal duty to support. “Dependents” may include non-emancipated children and spouse of a person, as well as any other individual for whom a person would be allowed a personal exemption under federal or Oregon personal income tax laws.

(8) “Division” means the Addictions and Mental Health Division of the Oregon Health Authority.

(9) “Fair Market Value” means the cash price a capable and diligent individual could obtain in a reasonable amount of time for an asset after negotiating with those accustomed to buying such property.

(10) “Funds for Personal Support Following Release” means the cash that a person will need following his/her release from a state institution to live in the community in a reasonable manner for a period of time, not normally to exceed six months.

(11) “Income” means all funds received by an individual, or for an individual by his or her authorized representative, from any source, whether earned or unearned, after making applicable deductions for state and federal taxes. “Income” includes benefits from both income protection insurance which replaces the person’s earned income when he or she is unable to work, and governmental retirement or disability insurance, such as Social Security, Veterans, and Railroad Retirement benefits.

(12) “Legal Obligations” means any financial duty imposed by law. “Legal obligations” include, but are not limited to, loan or mortgage contracts for which an individual is responsible, as well as liabilities arising out of other contracts or legal duties to pay money. “Legal obligations” include administratively or judicially ordered child and/or spousal support.

(13) “Moral Obligations” means any payments that an individual feels a moral duty to pay, but for which the individual does not have a legal duty to pay.

(14) “Person” means:

(a) A current or former patient at a state institution for the mentally and emotionally disturbed;

(b) A current or former resident at a state institution for the developmentally disabled.

(15) “Person’s Representative” means:

(a) Any individual who is the person’s authorized representative as defined in section (3) of this rule; and/or

(b) Any other individual who has the person’s written authority to represent the person.

(16) “Personal Expense Allowance” means the cash allowed for the reasonable miscellaneous expenses the person has while he or she is in the state institution, including but not limited to expenses for personal grooming and hygiene items; books, newspapers, or other publications; snacks or refreshments not provided by the state institution; and minor entertainment or excursions.

(17) “Primary Personal Automobile” means the automobile, if the person has more than one, which the person would choose to keep if required to sell all but one. If the person has only one, it is the primary personal automobile.

(18) “Primary Personal Residence” means the home the person owns, or is purchasing, and in which the person lived prior to entering the state institution, and/or in which the person will live after leaving the state institution.

(19) “Special Authorized Expense Allowance” means the cash needed for the reasonable personal expenses of the person which cannot be met by the personal expense allowance, and which the Division determines are necessary.

(20) “State Institution” means Dammasch State Hospital in Wilsonville; Eastern Oregon Psychiatric Center in Pendleton; Eastern Oregon Training Center in Pendleton; Fairview Training Center in Salem; and Oregon State Hospital in Salem.

(21) “Support for Dependents” means the cash necessary to meet the reasonable needs of the dependents, less the amounts the dependents receive from any other sources. Support for dependents excludes administratively or judicially ordered child and/or spousal support.

Stat. Auth.: ORS 179.770, 413.042 & 431.021
Stats. Implemented: ORS 179.610 – 179.770
Hist.: MHD 5-1980(Temp), f. & ef. 4-18-80; MHD 14-1980, f. & ef. 6-24-80; MHD 9-1991, f. 12-13-91, cert. ef. 12-16-91

309-012-0032

Requirements for Obtaining Financial Information

(1) Information Obtained from the Person and/or the Person’s Representative. The Division shall require the person and/or the person’s representative to submit financial information on forms provided by the Division. Financial information required by the Division shall include, but shall not be limited to the following:

(a) A description of the person’s assets, and their values;

(b) A description of the person’s liabilities, the dates they were incurred, the total amounts owing, and a schedule of actual or planned payment dates and amounts;

(c) The sources and amounts of the person’s income;

(d) The sources of available benefits from health insurance;

(e) A description and the amounts of the person’s expenses;

(f) The names and ages of any dependents, and the sources and amounts of income and assets, other than those of the person, which are available for their support; and

(g) The income, assets, and liabilities of the person’s spouse or other individual who shares the person’s expenses;

(h) Other information the person and/or the person’s representative considers important to the determination of the person’s ability to pay.

(2) Information Obtained from Other Sources. In addition, the Division may obtain financial information regarding the person from other sources the Division considers to be reliable. These sources may include, but are not limited to, the Social Security and Veterans Administrations, Oregon Department of Revenue, and other Oregon Health Authority agencies.

Stat. Auth.: ORS 179.770, 413.042 & 431.021
Stats. Implemented: ORS 179.610 – 179.770
Hist.: MHD 5-1980(Temp), f. & ef. 4-18-80; MHD 14-1980, f. & ef. 6-24-80; MHD 9-1991, f. 12-13-91, cert. ef. 12-16-91

309-012-0033

Procedures for Determining Ability-to-Pay for Cost of Care

(1) Ability-to-Pay Orders — Based on the financial information received or obtained, the Division will determine the person’s ability to pay. If the person, and/or the person’s authorized representative fails to provide sufficient information to show the person cannot pay the full cost of care, the Division may determine the person has the ability to pay the full cost of care. The determination of the person’s ability to pay shall be set forth in an Ability-to-Pay Order. The four types of Ability-to-Pay orders are Determination of Charges, Modification to Charges, Return of Funds for Personal Support Following Release, and Waiver of Charges. Each Order shall be given one of these titles to identify the type of determination it sets forth, and it shall be based on the factors and criteria described in the following sections.

(2) Limit on Charges — The amount determined by the Division to be the person’s charges shall not exceed the full cost of care for the dates of service covered by the Ability-to-Pay Order, less payments and/or credits from any other sources the Division has received, or reasonably anticipates receiving.

(3) Determination of Charges — An Ability-to-Pay Order which sets forth a determination of the person’s charges for the care received which is made either while the person is in the state institution, or after the person’s release from the state institution. A Determination of Charges may be issued any time during the person’s stay in the state institution. A Determination of Charges will be issued after the person’s release if none was issued during the person’s stay, or if the person’s financial circumstances change to enable the person to pay cost of care which exceeds amounts charged by previous Ability-to-Pay Orders. When issuing a Determination of Charges, the Division will consider the following factors:

(a) Factors relating to the person’s eligibility for and coverage by benefits from health insurance;

(b) Factors relating to the person’s assets:

(A) Except as otherwise provided in this section, charges will be assessed using the person’s equity in all assets whether the asset is controlled by the person, or by the person’s authorized representative. The Division will determine the person’s equity in each asset by deducting from the fair market value of the asset any bona fide encumbrance against the asset;

(B) Charges will be assessed using the person’s equity in a primary personal residence only if:

(i) Information is provided by the treatment staff at the state institution stating the person cannot reasonably be expected to return to the residence to live at any time following discharge from the institution; and

(ii) None of the following individuals is residing in the residence:

(I) The person’s spouse;

(II) The person’s child or children under age 21, or blind or disabled;

(III) The person’s sibling or siblings who own an interest in the residence, and who lived in the residence for at least one year immediately prior to the person’s admission to the state institution;

(IV) The person’s parents or emancipated children who are unable to work to maintain themselves as declared in ORS 109.010.

(C) No charge will be assessed using the person’s equity in a primary personal automobile;

(D) The value of an asset which has great sentimental value to the person (such as a family heirloom or gift from a loved one) may be disregarded if selling the asset would cause the person great emotional distress. The Division shall confer with the person’s treatment staff to decide whether or not to make this disregard;

(E) When assets are used as the basis for ongoing charges, the Division will estimate the length of time the assets are expected to last. During the final 60 days of that time period, the Division will review the person’s financial circumstances in preparation for modifying the person’s charges.

(c) Factors relating to the person’s income:

(A) Charges will be assessed using the total amount of all income received either by the person, or for the person by the person’s authorized representative;

(B) Income received at intervals other than monthly may be prorated for use in a calculation of a monthly charge to the person.

(d) Factors relating to the person’s legal and moral obligations:

(A) For legal obligations other than administratively or judicially ordered child and/or spousal support, the person must have demonstrated an intent to pay the obligation, either by showing a history or regular payments toward the full amount owing, or by providing a plan showing dates and amounts of payments to be made in the future;

(B) The Division shall seek the advice of treatment staff as to whether or not, in the interest of the person’s rehabilitation, welfare, and/or treatment, the person’s need to satisfy declared moral obligations should be given priority over the person’s obligation to pay the cost of care;

(C) Any deduction allowed by the Division for legal or moral obligations must be used to satisfy the current obligation. It may not be accumulated by, or on behalf of the person, or used for purposes other than that for which it was approved.

(e) Factors relating to the person’s obligation to provide financial support for dependents:

(A) Before approving a deduction for financial support for a dependent, the Division shall determine how much money is required to reasonably support the dependent. From that amount, the Division shall subtract any funds available from sources other than the person, such as the dependent’s own income and assets, or any form of governmental aid such as public assistance payable to, or on behalf of the dependent;

(B) Any deduction allowed by the Division for the financial support of dependents must be used to provide current support. It may not be accumulated by, or on behalf of the person, and it may not be used for other purposes.

(f) Factors relating to the person’s personal and special authorized expenses while in the state institution:

(A) The personal expense allowance while the person is in the state institution shall be established by the Division to reflect the Supplemental Security Income Program’s payment limit for institutionalized individuals (The allowance was $30 per month as of July 1, 1988.);

(B) Special authorized expense allowances while the person is in the state institution shall be approved based on the following criteria:

(i) The state institution treatment staff’s advice that satisfying the need will not interfere in any way with the successful treatment or general welfare of the person, and it may enhance the person’s ability to meet the goals of the treatment plan; and

(ii) There are no other resources available to meet the need.

(g) Factors related to the person’s need for funds for personal support following release from the state institution when the Division is issuing any Ability-to-Pay Order after release or when release is scheduled within 30 days:

(A) As necessary, funds for personal support following release will be allowed to pay for the following items:

(i) Rental costs including the monthly rent payment, as well as one time deposits or fees, or mortgage payments related to the purchase of a residence;

(ii) Food for the person and dependents;

(iii) Utilities such as heating fuel, water, electricity, garbage service, basic telephone service, and basic television cable service;

(iv) Transportation and related insurance coverage;

(v) Routine household maintenance and insurance coverage;

(vi) Health and dental care and related insurance coverage for the person and dependents;

(vii) Clothing and entertainment for the person and dependents; and

(viii) Other personal expenses which the person shows to be reasonable and necessary, including payments toward moral obligations and legal obligations (other than mortgage contracts), as described in subsection (d) of this section.

(B) The funds allowed for personal support following release shall be based on what a reasonable and prudent individual would spend for the items given the resources available to the individual;

(C) The amount approved for support of the dependents shall take into consideration all other resources available to meet the dependent’s needs.

(h) Factors relating to the time period during which the Division may assess charges, and the time period during which the person is required to pay assessed charges:

(A) Ability-to-Pay Orders issued after release which establish an ongoing monthly charge based on the person’s ability to pay after release shall not add new charges beyond the 36th month following the month in which the person was released from the state institution;

(B) The person is required to pay beyond the 36 month period, any assessed charges not paid prior to release or during the 36 month period after release.

(4) Modification to Charges — An Ability-to-Pay Order which sets forth a modification to the person’s charges established by a prior Ability-to-Pay Order. A Modification to Charges will be made to reflect either a change in the person’s financial circumstances which affects the person’s ability-to-pay ongoing monthly charges, or the Division’s receipt of benefits from health insurance that were not recognized in a prior Ability-to-Pay Order, which cause established charges to exceed the maximum cost of care chargeable to the person in accordance with section (2) of this rule. When issuing a Modification to Charges, the Division will consider the same factors used for a Determination of Charges as described in section (3) of this rule.

(5) Return of Funds for Personal Support Following Release — An Ability-to-Pay Order which sets forth a determination by the Division regarding the return of funds paid toward the person’s charges to provide the person with adequate funds for personal support following his or her release from the state institution. When issuing a Return of Funds for Personal Support Following Release, the Division will use the following criteria:

(a) A Return of Funds for Personal Support Following Release is subject to the following conditions:

(A) The person or the person’s representative has made payments toward the cost of care provided by the state institution.

NOTE: Returned funds for personal support following release cannot exceed the total amount paid from the person’s own income and assets. Benefits from health insurance are not included in the amounts paid.

If charges are due, but the person or the person’s representative has made no payment, funds for personal support following release will be considered under the provisions for Waiver of Charges;

(B) The person will be discharged from the state institution within the next 30 days, or he/she was discharged from the state institution within the last 60 days;

(C) The person has financial obligations following release from the state institution as described in subsection (3)(g) of this rule which cannot be immediately satisfied with other available resources.

(b) Funds for personal support following release will be provided for a limited amount of time, not normally to exceed six months, during which time the person will be expected to become otherwise supported through employment, public assistance, or other available programs;

(c) Funds for personal support following release for a period of time exceeding six months will be considered only if the Division receives information which shows the person’s circumstances require such consideration.

(6) Waiver of Charges — An Ability-to-Pay Order which sets forth a determination by the Division regarding waiver of collection of part or all of the person’s unpaid charges based upon the best interest of the person or the Division:

(a) A waiver of charges should be granted when the Division, after considering information regarding extraordinary circumstances pertaining either to the person’s financial situation, or the person’s physical, psychological, or sociological well-being, determines:

(A) Charges assessed by prior Ability-to-Pay Orders are unpaid, and a subsequent change in the person’s circumstances shows that collection of all or part of the unpaid charges would be detrimental to the best interests of the person or of the Division;

(B) Charges assessed by prior Ability-to-Pay Orders are unpaid, and the Division either receives a written statement from the person’s treating physician, or accepts, on a case-by-case basis, a non-physician mental health professional’s written statement, which indicates the person’s physical, psychological, and/or sociological condition is interfering with the person’s ability to satisfy the outstanding obligation, and further efforts by the Division to collect the unpaid charges would be harmful to the person; or

(C) Charges have not been assessed by a prior Ability-to-Pay Order extraordinary circumstances as described in paragraph (A) and/or (B) of this subsection are present, and based on those circumstances the charges should not be assessed.

(b) In accordance with ORS 179.640(4), charges may be assessed or reassessed at a later time by a new Determination of Charges Ability-to-Pay Order if the basis for waiver under this section ceases to exist.

Stat. Auth.: ORS 179.770, 413.042 & 431.021
Stats. Implemented: ORS 179.610 – 179.770
Hist.: MHD 5-1980(Temp), f. & ef. 4-18-80; MHD 14-1980, f. & ef. 6-24-80; MHD 9-1991, f. 12-13-91, cert. ef. 12-16-91

309-012-0034

Delivery of Ability-to-Pay Orders and Factors Relating to Appeals

(1) Delivery to the Person — The original Ability-to-Pay Order shall be delivered to the person, unless the person has an authorized representative.

(2) Delivery to the Authorized Representative — If the person has an authorized representative, the original Ability-to-Pay Order shall be delivered to the authorized representative, and a copy shall be delivered to the person. Any Ability-to-Pay Order delivered to an authorized representative shall include an explanation of the Division’s right to demand payment of the charges assessed by the Order, and the consequences to the authorized representative of failing to comply, as provided by ORS 179.653.

(3) Appeal Rights — The Ability-to-Pay Order shall include an explanation of the person’s right to appeal the determination set forth by the Order.

(4) Successor Authorized Representative — If the person’s authorized representative does not pay or appeal the charges assessed by an Ability-to-Pay Order, and he or she is subsequently replaced by a new authorized representative, the successor authorized representative shall be provided with the opportunity to either pay the assessed charges, or to appeal the determination set forth by the Order. The Division will take the following actions when notified there is a successor authorized representative:

(a) Deliver copies of all Ability-to-Pay Orders not fully paid to the successor authorized representative with a letter which describes the delivery of the Order(s) to the previous authorized representative(s), and any actions taken by the previous representative(s) with regard to the Order(s);

(b) Include with the Order copies, an explanation of the successor authorized representative’s right to appeal the determination(s) set forth by the Ability-to-Pay Order(s).

(5) Resolving Appeals — If the person or the person’s authorized representative appeals a determination set forth by an Ability-to-Pay Order, the Division will attempt to resolve the appeal by issuing a new Ability-to-Pay Order which takes into consideration the information on which the appeal is based. If the appeal cannot be resolved by issuing a new Order, it will be addressed through the contested case appeal process.

Stat. Auth.: ORS 179.770, 413.042 & 431.021
Stats. Implemented: ORS 179.610 – 179.770
Hist.: MHD 9-1991, f. 12-13-91, cert. ef. 12-16-91

309-012-0035

Enforcement of Recoupment Liens

(1) Purpose. This rule establishes procedures for implementing recoupment liens used in carrying out Reimbursement Orders issued by the Division.

(2) Statutory Authority and Procedure. This rule is authorized by ORS 179.770 and 430.041 and carries out the provisions of ORS 179.653 and 179.655.

(3) Definitions. As used in this rule:

(a) “Cost of Care” means the cost determined by the Division in accordance with ORS 179.701;

(b) “Division” means the Addictions and Mental Health Division of the Oregon Health Authority;

(c) “Person” means:

(A) A patient who is receiving or has received treatment or care at a state institution for the mentally ill;

(B) A current or former resident at a state institution for the mentally retarded.

(d) “Person’s Representative” means a conservator, guardian of the person, or estate of the person in a state institution, or an individual who has been appointed by a court in this or another state or by Federal Court to serve as the legal representative of a person in a state institution, and also includes an individual whom a person in a state institution has designated to receive the notice of information involved in the particular transaction;

(e) “Recoupment Lien” means a charge or security or encumbrance upon real or personal property that can be used to satisfy the amount due for the person’s cost of care;

(f) “Reimbursement Order” means the order issued to determine the person’s ability to pay pursuant to ORS 179.640(1) and (2);

(g) “State Institution” means Dammasch State Hospital in Wilsonville, Oregon State Hospital in Salem, Fairview Training Center in Salem, and Eastern Oregon Hospital and Training Center in Pendleton;

(h) “Warrant” means the document issued by the Division directed to the sheriff of any county of the state commanding the sheriff to levy upon and sell the real and personal property which is subject to satisfaction of the recoupment lien.

(4) Enforcement of Lien by Issuance of Warrant. The Division shall enforce its recoupment lien created by ORS 179.653 by issuance of a warrant in the manner stated in 179.655. Any warrant issued by the Division pursuant to 179.655 shall clearly provide that the sheriff or other person executing the warrant shall not levy upon and sell any real or personal property that would be exempt under Oregon law from execution pursuant to a judgment. However, the Division shall not issue a warrant pursuant to 179.655 where:

(a) The amount due to the Division for the cost of care of a person in a state institution is not at least 30 days overdue;

(b) Provision has been made to secure the payment by bond or deposit or otherwise in conformance with section (5) of this rule;

(c) The person has exercised the right to appeal the Reimbursement Order pursuant to OAR 309-012-0025(6) and that appeal is still pending;

(d) Sixty-one days have not passed since the issuance of the Reimbursement Order;

(e) The person or the person’s representative has not been given at least ten days’ prior written notice that the Division intends to issue such a warrant.

(5) Methods of Securing Satisfaction of Reimbursement Order:

(a) The issuance of a warrant to the sheriff to enforce collection of delinquent money due the Division for the cost of care for a person in a state institution will be stayed either by paying the amount due and accrued interest after it becomes due or by securing payment of that amount by bond or deposit or otherwise;

(b) The bond given by the person must be for an amount not less than the amount due, plus interest for a reasonable period determined by the Division:

(A) The bond must be executed by:

(i) A surety company which is registered with, and under the supervision of, the Insurance Commissioner of the State of Oregon; or

(ii) By two or more individual sureties, each of whom shall be a resident and homeowner or holder of an interest in land within the state and each of whom shall be worth sums specified in the under-taking, exclusive of property exempt from execution and over and above all valid debts and liability.

(B) The Division may allow more than two sureties to justify several amounts less than that expressed in the undertaking, if the whole justification is equivalent to that of two sufficient undertakings.

(c) Any one of the following items, or combination of items acceptable to the Division, equal to the amount due, plus accrued interest thereon, may be deposited with the Division:

(A) A deposit of money;

(B) A certified check or checks on any state or national bank within the State of Oregon payable to the Division;

(C) Satisfactory bonds negotiable by delivery, or obligations by the U.S. Government negotiable by delivery; or

(D) Any other security satisfactory to the Division.

(d) The Division may require additional security whenever, in its opinion, the value of the security pledged is no longer sufficient to adequately secure the payment of the amount due, plus accrued interest thereon.

(6) Release of Tax Lien and Clouds on Title. Any request made to the Division for the release of a warrant, where such warrant is not in fact a lien on title to the real property in question but merely a cloud on the title to such real estate, shall be accompanied by a statement. This statement shall show the facts affecting the title to the real property in question that render the Division’s warrant a cloud on the title to such real property and the reasons the warrant does not actually constitute a lien thereon:

(a) This type of request for release of a warrant should be accompanied by a current title report;

(b) The Division may require other documentary proof showing the present condition of the title to the property in question.

Stat. Auth.: ORS 179.770, 413.042 & 431.021
Stats. Implemented: ORS 179.610 – 179.770
Hist.: MHD 8-1980(Temp), f. & ef. 4-18-80; MHD 15-1980, f. & ef. 6-24-80

Charges for Reproduction of Medical Records

309-012-0070

Policy

(1) Requests for copies of medical records must be made in writing with proper consent and must be specific to assure that only the essential portions of the medical record are copied and released.

(2) A patient or resident shall not be denied access to the medical record because of inability to pay. The patient may review his or her record in the Medical Record Department at no charge.

(3) A copy of the most recent release summary shall be furnished free of charge to authorized persons or agencies providing follow-up care.

(4) A copy of required portions of medical records may be provided without charge to the following agencies and individuals. When a substantial part or all of a medical record is requested, the Division may charge for copies in accordance with OAR chapter 943-003:

(a) Community mental health programs;

(b) Courts;

(c) Hospitals;

(d) Individuals or agencies providing follow-up care for the patient;

(e) Insurance carriers paying for patient's or resident's care; and

(f) Physicians.

(5) All other requests for public records shall be charged in accordance with OAR chapter 407, division 003.

Stat. Auth.: ORS 179.770, 413.042 & 431.120
Stats. Implemented: ORS 179.610 – 179.770
Hist.: MHD 2-1983(Temp), f. & ef. 2-18-83; MHD 10-1983, f. & ef. 6-8-83; MHS 4-2007, f. & cert. ef. 5-25-07

Amount of Earned Income in Calculation of Ability-to-Pay

309-012-0100

Purpose and Statutory Authority

(1) Purpose. These rules establish the amount of earned income the Division excludes when calculating ability-to-pay for cost of care at a mental health institution. The purpose of this earned income exclusion is to reduce the disincentive to work for patients and residents.

(2) Statutory Authority. These rules are authorized by ORS 413.042 and carry out the provisions of ORS 179.770.

Stat. Auth.: ORS 179.770, 413.042 & 431.021
Stats. Implemented: ORS 179.610 – 179.770
Hist.: MHD 11-1985, f. & ef. 6-19-85

309-012-0105

Definitions

As used in these rules:

(1) “Earned Income” means money received by a patient or resident in a mental health institution in return for services rendered, while receiving care or treatment at the institution.

(2) “Mental Health Institution” means Dammasch State Hospital in Wilsonville, Oregon State Hospital in Salem, Fairview Training Center in Salem, and Eastern Oregon Psychiatric Center and Eastern Oregon Training Center in Pendleton.

Stat. Auth.: ORS 179.770, 413.042 & 431.021
Stats. Implemented: ORS 179.610 – 179.770
Hist.: MHD 11-1985, f. & ef. 6-19-85

309-012-0110

Earned Income in Calculation of Ability-to-Pay

The Division includes earned income as income in the calculation of ability-to-pay, as described in OAR 309-012-0030.

Stat. Auth.: ORS 179.770, 413.042 & 431.021
Stats. Implemented: ORS 179.610 – 179.770
Hist.: MHD 11-1985, f. & ef. 6-19-85

309-012-0115

Earned Income Exclusion

The Division allows a patient or resident to retain a portion of any income earned while in a mental health institution. The amount of earned income to be excluded in the calculation of ability-to-pay is determined by subtracting $65 from earned income. An additional $25 will be subtracted from the total income (both earned and unearned) as an allowance for personal need.

Stat. Auth.: ORS 179.770, 413.042 & 431.021
Stats. Implemented: ORS 179.610 – 179.770
Hist.: MHD 11-1985, f. & ef. 6-19-85

Certificates of Approval for Mental Health Services

309-012-0130

Purpose and Scope

(1) Purpose. These rules establish procedures for approval of the following kinds of organizations:

(a) Any mental health service provider which is, or seeks to be, contractually affiliated with the Division or community mental health authority for the purpose of providing services described in ORS 430.630(3);

(b) Performing providers under OAR 309-016-0070;

(c) Organizations seeking Division approval of insurance reimbursement as provided in ORS 743A.168; and

(d) Holding facilities.

(2) These rules do not establish procedures for residential licensure under ORS 443.410 and 443.725.

(3) These rules do not establish procedures for regulating behavioral health care practitioners that are otherwise licensed to render behavioral healthcare services in accordance with applicable statutes.

(4) These rules do not establish procedures for regulating practices exclusively comprised of behavioral healthcare practitioners that are otherwise licensed to render behavioral healthcare services in accordance with applicable statutes.

Stat. Auth.: ORS 179.040, 430.640, 743.556 & 743A.168
Stats. Implemented: ORS 179.505, 430.010 & 430.620
Hist.: MHD 4-1992, f. & cert. ef. 8-14-92; MHS 14-2013(Temp), f. & cert. ef. 12-20-13 thru 6-18-14; MHS 10-2014, f. 6-10-14, cert. ef. 6-19-14

309-012-0140

Definitions

As used in these rules:

(1) “Applicant” is any entity potentially eligible to be approved as a provider under these rules and who has requested, in writing, a Certificate of Approval.

(2) “Certificate of Approval” is the document awarded under these rules signifying that a specific, named organization is judged by the Division to operate in compliance with applicable rules. A “Certificate of Approval” for mental health services is valid only when signed by the Assistant Administrator of the Division and, in the case of a subcontract provider of a CMHP, the CMHP director.

(3) “Community Mental Health Program” or “CMHP” means the organization of all services for persons with mental or emotional disturbances, operated by, or contractually affiliated with, a local mental health authority, and operated in a specific geographic area of the state under an agreement or contract with the Division.

(4) “Direct Contract” or “Contract” is the document describing and limiting the relationship and respective obligations between an organization other than a county and the Division for the purposes of operating the mental health program area within a county’s boundaries, or operating a statewide, regional, or specialized mental health services.

(5) “Division” means the Addictions and Mental Health Division of the Oregon Health Authority.

(6) “Holding Facility” means hospitals or other facilities, including Division contracted acute care facilities, providing care, custody, and treatment of allegedly mentally ill persons under the emergency provisions of ORS 426.070 & 426.140.

(7) “Intergovernmental Agreement” or “Agreement” is the document describing and limiting the contractual relationship and respective obligations between a county or other government organization and the Division for the purpose of operating mental health services.

(8) “Letter of Approval” is the document awarded to service providers which states that the provider is in compliance with applicable administrative rules of the Division. Letters of Approval issued for mental health services are obsolete upon their expiration date, or upon the effective date of this rule, whichever is later. OAR 309-012-0010 is repealed upon the effective date of these rules.

(9) “Local Mental Health Authority” means the county court or board of county commissioners of one or more counties who operate a community mental health program, or in the case of a Native American reservation, the tribal council, or if the county declines to operate or contract for all or part of a community mental health program, the board of directors of a public agency or private corporation with whom the Division directly contracts to provide the mental health services program area.

(10) “Mental Health Program Area” means the organization of all services for persons with mental or emotional disturbances, operated by or contractually affiliated with, a local mental health authority, in a specific geographic area of the state.

(11) “Mental Health Services Provider” means a corporate, or government entity, which provides a service defined in a Division administrative rule, under a contract or agreement with the Division, or CMHP.

(12) “Non-Inpatient Provider” means an organization not contractually affiliated with the Division, a CMHP, or other contractor of the Division providing services under group health insurance coverage for mental or nervous conditions which seeks or maintains Division approval under ORS 743.556(3).

(13) “Provider” means either a mental health services provider, holding facility, or a non-inpatient provider.

(14) “Service Element” means a distinct service or group of services for persons with mental or emotional disturbances which is defined in administrative rule and is included in a contract or agreement issued by the Division.

(15) “Subcontract” is the document describing and limiting the relationship and obligations between a government or other entity having an agreement or contract with the Division and a third organization (subcontractor) for the purpose of delivering some or all of the services specified in the agreement or contract with the Division.

(16) “Substantial Compliance” means a level of adherence to Division rules applicable to the operation of a service which, while not meeting one or more of the requirements in an exact, literal manner, does not, in the determination of the Division, constitute a danger to the health or safety of any person, is not a willful or a potentially continuing violation of the rights of service recipients as set forth in administrative rules, or will not prevent the accomplishment of the State’s purposes in approving or supporting the subject service. “Substantial failure to comply” is used in this rule to mean the opposite of “substantial compliance.”

Stat. Auth.: ORS 179.040, 179.505, 426.175, 430.010, 430.640 & 743.556
Stats. Implemented: 430.620
Hist.: MHD 4-1992, f. & cert. ef. 8-14-92

309-012-0150

Applicability of Certificates of Approval

Certificates of Approval are awarded to mental health services providers and non-inpatient providers that are found to be in substantial compliance with applicable administrative rules:

(1) Mental health services providers are required to maintain Certificates of Approval as follows:

(a) Each community mental health program or provider operating under an Intergovernmental Agreement or a direct contract with the Division must maintain a Certificate of Approval as set forth in these rules;

(b) Each local mental health service provider operating under subcontract with a CMHP must maintain a Certificate of Approval as set forth in these rules in order to receive funds administered by the Division through the local subcontract relationship.

(2) Hospitals and other facilities which operate as holding facilities in providing care, custody, and treatment of allegedly mentally ill persons under the emergency provisions of ORS 426.070 & 426.140 must maintain a Certificate of Approval as set forth in these rules.

(3) A provider not described above which offers services that may be reimbursable under group health coverage as set forth in ORS 743A.168 for mental or emotional conditions may seek to obtain a Division Certificate of Approval in order to establish reimbursement eligibility.

(4) Certificates of Approval are not awarded as a substitute for a license such as those required in ORS 443.410 and 443.725 for residential facilities. However, the Division may require such licensed providers to obtain a Certificate of Approval if services exceeding those required for licensure are provided in return for Division financial support as set forth in section (1) of this rule.

(3) These rules do not establish procedures for regulating behavioral health care practitioners that are otherwise licensed to render behavioral healthcare services in accordance with applicable statutes.

(4) These rules do not establish procedures for regulating practices exclusively comprised of behavioral healthcare practitioners that are otherwise licensed to render behavioral healthcare services in accordance with applicable statutes.

Stat. Auth.: ORS 179.040, 179.505, 426.175, 430.010, 430.640 & 743.556
Stats. Implemented: 430.620
Hist.: MHD 4-1992, f. & cert. ef. 8-14-92; MHS 14-2013(Temp), f. & cert. ef. 12-20-13 thru 6-18-14; MHS 10-2014, f. 6-10-14, cert. ef. 6-19-14

309-012-0160

Award of Certificates of Approval for New Applicants

(1) County governments and applicants for direct contracts with the Division. Counties not operating under an agreement with the Division, or those electing to add Division service elements which are not included in their agreement, and other organizations seeking to become direct contractors of the Division following the Division’s request for such contractors, may be awarded Certificates of Approval based upon the following:

(a) A plan for the implementation of the proposed services which meets the specifications of the Division;

(b) Written assurance, by an officer with authority to obligate the applicant, that all applicable rules of the Division for operation of the proposed services will be met, or if not, operated in compliance with a waiver awarded by the Division; and

(c) Other reviews, such as those described in OAR 309-012-0190(3), which in the judgment of the Division may assist to predict compliance of the applicant’s proposed services with administrative rules;

(d) Following the completion of the application process, and any reviews deemed necessary by the Division, the Division will make one of the following determinations:

(A) That the applicant may be awarded a Certificate of Approval based on demonstration of its capacity and willingness to operate in compliance with applicable administrative rules;

(B) That the applicant may be awarded a Certificate of Approval with specified conditions as described in OAR 309-012-0200; or

(C) That the applicant will not be awarded a Certificate of Approval because it has not demonstrated that it will comply with applicable administrative rules.

(2) Community mental health subcontracted providers, holding facilities, and performing providers:

(a) A provider seeking a Certificate of Approval for the first time, in order to operate as a CMHP subcontractor, performing provider under OAR 309-016-0070, or holding facility shall submit an application to the CMHP in the county in which the service will be offered;

(b) Upon a determination by the CMHP to subcontract with the provider for the purpose of providing a mental health service, for the purpose of operating as a performing provider under OAR 309-016-0070, or as a holding facility, the CMHP shall apply to the Division for a Certificate of Approval for the program;

(c) The CMHP application to the Division must include the following:

(A) Provider identifying information including corporate name, address, telephone number, and name of manager or director;

(B) Written assurance from an officer with authority to obligate the applicant that the applicant will operate in compliance with all administrative rules applicable to the services which will be subcontracted to the provider, or a request for a variance to the applicable administrative rules with which the provider will not comply.

(d) The Division may initiate other reviews such as those described in OAR 309-012-0190(3) and may negotiate with the CMHP, ongoing monitoring activities to be conducted to ensure the provider’s compliance;

(e) Following the completion of the application process described above, and any reviews deemed necessary by the Division, the Division will make one of the following determinations:

(A) That the applicant may be awarded a Certificate of Approval based on demonstration of its capacity and willingness to comply with applicable administrative rules;

(B) That the applicant may be awarded a Certificate of Approval with specified conditions for action by the applicant for reaching substantial compliance with applicable administrative rules, and/or specific monitoring activities which have been negotiated with the CMHP as described in subsection (2)(d) of this rule;

(C) That the applicant will not be awarded a Certificate of Approval because it has failed to demonstrate that it will comply with applicable administrative rules, or that the kind and amount of monitoring proposed by the CMHP will not assure the applicant’s compliance.

(f) Certificates of Approval awarded to CMHP subcontractors are issued jointly between the Division and the CMHP. To be valid, such a Certificate must bear the signature of the Assistant Administrator of the Division and the CMHP director.

(3) Non-inpatient providers seeking Division approval for insurance reimbursement purposes as provided in ORS 743.556(3). Non-inpatient providers seeking Division approval for insurance reimbursement purposes may correspond with the Division specifically requesting application instructions for Division approval as provided in ORS 743.556(3). Following a review of application materials submitted by the provider, the Division may:

(a) Deny the application, in writing, to the applicant because of a failure to pay the application fee described in subsection (d) of this section; because the application materials demonstrate that the provider does not comply with OAR 309-039-0500 through 309-039-0580; or because of the provider’s failure to submit materials specified in the application instructions; or

(b) Following review of the application, the Division may:

(A) Schedule reviews such as those described in OAR 309-012-0190(4) by Division personnel; or

(B) Notify the applicant of other agencies or individuals with whom they may contract for the purpose of conducting a review and providing a report of program compliance to the Division;

(C) Notify the applicant of placement on a waiting list for review when Division staff or other agencies or individuals are available to conduct a review.

(c) Following the reviews in paragraph (b)(A) or (B) of this section, the Division will award or refuse to award a Certificate of Approval to the applicant based on the findings of the review;

(d) The Division may require payment of an application fee and a certification fee by non-inpatient programs applying or reapplying for a Certificate of Approval under these rules, provided the collection of such fees has been authorized for the Division budget by the Legislative Assembly or the Emergency Board.

Stat. Auth.: ORS 179.040, 179.505, 426.175, 430.010, 430.640 & 743.556
Stats. Implemented: 430.620
Hist.: MHD 4-1992, f. & cert. ef. 8-14-92

309-012-0170

Award of Certificates of Approval to Providers at the Time These Rules are Adopted

(1) Mental health services providers. Upon adoption of these rules, the Division may issue Certificates of Approval to mental health services providers that are operating under an Intergovernmental Agreement, direct contract, or at the request of the CMHP, to current subcontractors of the CMHP.

(2) Non-inpatient providers described in ORS 743.556 and holding facilities. Letters of Approval awarded under ORS 743.556 and those awarded to holding facilities which remain in effect at the time these rules are adopted, are the equivalent of a Certificate of Approval. These may be maintained and renewed as Certificates of Approval as set forth in these rules.

Stat. Auth.: ORS 179.040, 179.505, 426.175, 430.010, 430.640 & 743.556
Stats. Implemented: 430.620
Hist.: MHD 4-1992, f. & cert. ef. 8-14-92

309-012-0180

Duration and Renewal of Certificates of Approval

(1) Mental health services providers. Unless revoked pursuant to OAR 309-012-0210 or unless otherwise specified on the Certificate, Certificates of Approval for mental health services providers are valid for three years.

(2) Non-inpatient providers. Certificates of Approval for providers described in ORS 743.556(3) are valid for up to three years or as otherwise specified on the Certificate. When a non-inpatient provider seeks a Certificate of Approval to be in effect at the expiration date of a Letter of Approval or a prior Certificate of Approval, an application conforming to the instructions of the Division must be received no later than 90 days prior to the expiration of the earlier Letter of Approval or Certificate.

Stat. Auth.: ORS 430.041, 430.640(l) & 430.640(h)
Stats. Implemented:
Hist.: MHD 4-1992, f. & cert. ef. 8-14-92; MHS 14-2013(Temp), f. & cert. ef. 12-20-13 thru 6-18-14; MHS 10-2014, f. 6-10-14, cert. ef. 6-19-14

309-012-0190

Conduct of Periodic and Interim Reviews

(1) Review Schedules:

(a) Periodic reviews of mental health service providers will be routinely conducted every three years;

(b) Periodic reviews of non-inpatient providers approved under ORS 743.556 will be conducted following the provider’s submission of an application for recertification as set forth in OAR 309-012-0180;

(c) Interim reviews of any provider holding a Certificate of Approval may be conducted at any time at the discretion of the Division, or in the case of a subcontractor of a CMHP, at the discretion of either Division or the CMHP.

(2) Notification of Review. Notification that a review will be conducted, along with all instructions and requests for information from the provider, will be made in writing by the designee of the Assistant Administrator of the Division. For reviews of subcontractors initiated by the CMHP, notification and instructions will be made by the designee of the director of the CMHP.

(3) Initiation of Reviews:

(a) Reviews of new applicants, and periodic reviews will be scheduled with at least one month’s notice from the Division to the CMHP, direct contractor, or non-inpatient provider. Subcontractors will be notified by the CMHP;

(b) The Division and, in the case of a subcontractor, the CMHP may conduct an interim review without prior notification when there is reason to believe any of the following conditions have occurred or may occur:

(A) Operations of the service provider threaten the health or safety of any person;

(B) The provider may act to alter records or make them unavailable for inspections.

(c) Interim reviews other than those specified in subsection (b) of this section will be initiated with at least two week’s notice by the Division to the CMHP or direct contractor.

(4) Review Procedures. The Division, and in the case of reviewing a subcontractor, the CMHP, may employ review procedures which it deems adequate to determine compliance with applicable administrative rules. These procedures may include but are not limited to:

(a) Entry and inspection of any facility used in the delivery of approved services;

(b) A request for the submission to the Division or CMHP, of a copy of any document required by applicable administrative rules or needed to verify compliance with such rules, or access to such documents for on-site review. Such documentation could include, for example, records of utilization and quality assurance reviews, copies of portions of selected consumer records, and copies of staff academic degrees or professional licenses;

(c) The completion by the provider of self-assessment checklists reporting compliance or non-compliance with specific rule requirements; and

(d) Conduct of interviews with, and administration of questionnaires to persons knowledgeable of service operations, including, for example, staff and management of a provider, governing and advisory board members, allied agencies, service consumers, their family members, and significant others;

(e) In the case of subcontracts and reviews initiated by the county, the county may request Division assistance in conducting the reviews.

(5) Organizational Provider Assessment Information

(a) In addition to the review procedures outlined in Section 309-012-0057, the Division will ensure that the following minimum information will be obtained during the site reviews;

(b) A current program description that reflects the type and scope of behavioral health services provided by the applicant;

(c) Provider policies regarding credentialing practices of individual practitioners. The policies must reflect current credentialing standards as defined by nationally accepted accrediting bodies such as The Joint Commission, the National Committee for Quality Assurance, and/or URAC;

(d) Copies of the provider’s liability insurance coverage;

(e) Copies of the provider’s policies and procedures regarding seclusion and restraint practices; and

(f) Copies of the provider’s Code of Conduct.(6) Reports of Review Findings:

(a) Completion Deadlines. The Division will issue a completed report of review findings, a Certificate of Approval, and any conditions to approval, or denial of approval within 60 days of the completion of an on-site review, or within 60 days of the date of submission of all review materials which have been requested for the purpose of conducting the review, whichever is later;

(b) Content and scope of reports. Reports of reviews will include the following:

(A) A description of the review findings regarding program operations relative to applicable administrative rules, and contract or agreement provisions;

(B) A specification of any conditions set as described in OAR 309-012-0200, which the provider must meet, and the time permitted to meet the conditions;

(C) A statement clarifying the provider’s approval status; and

(D) An appendix containing any report of findings or observations clearly qualified as unrelated to the provider’s approval status which may be useful as information and recommendations to the service provider or the CMHP.

(c) Transmittal of Reports. Each report shall be issued along with a document of transmission signed by the Assistant Administrator of the Division, and any Certificates of Approval being awarded;

(d) Report Distribution. The Division will address and issue reports as follows:

(A) Reports of reviews of a directly operated or subcontracted portion of a community mental health program will be issued to the local mental health authority;

(B) Reports of reviews of direct contractors of the Division will be issued to the signator(s) of the direct contract; and, the Chairperson of the Board of Directors of the contractor;

(C) Reports of reviews of holding facilities which are not subcontractors of a community mental health program, and reviews of non-inpatient providers will be issued to the provider’s officer or employer requesting the review.

Stat. Auth.: ORS 179.040, 179.505, 426.175, 430.010, 430.640 & 743.556
Stats. Implemented: 430.620
Hist.: MHD 4-1992, f. & cert. ef. 8-14-92; MHS 14-2013(Temp), f. & cert. ef. 12-20-13 thru 6-18-14; MHS 10-2014, f. 6-10-14, cert. ef. 6-19-14

309-012-0200

Establishment of Conditions to the Award of Certificates of Approval

Based upon a finding that a provider does not operate in compliance with an applicable administrative rule, other than as set forth in OAR 309-012-0210(1), the Division may establish conditions to the award and/or continuation of a Certificate of Approval:

(1) Division Discretion. The Division, and, in the case of a subcontractor, the Division and CMHP, may elect to place conditions on approval of a provider in situations in which the alternative would be denial or revocation of approval because of a failure to substantially comply with applicable rules as described in OAR 309-012-0210(2). The decision to employ special conditions rather than revoke or refuse to award approval will be based on criteria such as the following:

(a) The expressed willingness of the provider to gain compliance with applicable rules;

(b) The apparent adequacy of actions proposed by the provider to gain compliance;

(c) The availability of alternative providers to address any service needs that would be unmet if the provider were not allowed conditions to approval as an alternative to revocation or refusal to award a Certificate of Approval;

(d) The provider’s historical compliance with Division rules and conditions.

(2) Method of Establishment:

(a) Conditions to approval shall be communicated in writing and issued along with a document of transmission signed by the Assistant Administrator of the Office of Division;

(b) Each written condition shall specify the time period allowed to gain compliance and any interim steps for obtaining such compliance.

Stat. Auth.: ORS 179.040, 179.505, 426.175, 430.010, 430.640 & 743.556
Stats. Implemented: 430.620
Hist.: MHD 4-1992, f. & cert. ef. 8-14-92

309-012-0210

Certificate Denial or Revocation

(1) Immediate Denial or Revocation. The Division, or in the case of a subcontractor provider, either the Division or the CMHP may refuse to renew or may immediately revoke a Certificate of Approval, without a prior notice or hearing when the applicant or provider:

(a) Has demonstrated substantial failure to comply with applicable rules such that the health or safety of individuals is jeopardized and the applicant fails to correct the noncompliance within the time specified by the Division;

(b) Has demonstrated a substantial failure to comply with applicable rules such that the health or safety of individuals is jeopardized during two reviews within a six-year period;

(c) Has failed to maintain any State of Oregon license which is a prerequisite for providing services that were approved;

(d) Is a county, or direct contractor that has terminated its agreement or contract with the Division for the provision of the approved services, or when the approval is to a subcontract provider of such a county or direct contractor;

(e) Is approved to provide a service as a CMHP subcontractor, whose subcontract is terminated;

(f) Continues to employ personnel who have been convicted of any felony, or a misdemeanor associated with the provision of mental health services;

(g) Falsifies information required by the Division regarding services to consumers, or information verifying compliance with rules; or

(h) Refuses to submit or allow access to information for the purpose of verifying compliance with applicable rules when notified to do so as set forth in OAR 309-012-0190(2), or fails to submit such information following the date specified for such a submission in the written notification.

(2) Denial or Revocation with Notice. Following a Division finding that there is a substantial failure to comply with applicable rules beyond the conditions in section (1) of this rule, such that, in the Division’s view the state’s purposes in approving the services are not or will not be met, the Division may, with 30 days notice, refuse to award or renew, or may revoke a Certificate of Approval.

(3) Informal Conference. Within ten calendar days following a 30-day notice issued under section (2) of this rule, the Division shall give the provider an opportunity for an informal conference at a location of the Division’s choosing. Following such a conference, the Division may proceed with denial or revocation effective on the 30th day following the notice issued under section (2) of this rule, or may approve the provider, or set conditions to approval as described in OAR 309-012-0200 rather than denying or revoking approval.

(4) Hearing. Following issuance of a notice of Certificate revocation or denial, the Division shall provide the opportunity for a hearing as set forth in OAR 309-012-0220.

(5) A county may employ process consistent with the above, or processes adopted by resolution of the local mental health authority for revoking the approval of a subcontract provider.

Stat. Auth.: ORS 179.040, 179.505, 426.175, 430.010, 430.640 & 743.556
Stats. Implemented: 430.620
Hist.: MHD 4-1992, f. & cert. ef. 8-14-92

309-012-0220

Hearings

(1) Request for Hearing. Upon written notification by the Division of revocation or denial to issue or renew a Certificate, pursuant to OAR 309-012-0210(1) and (2), the provider shall beentitled to a hearing in accordance with ORS Chapter 183. The request for hearing shall include an admission or denial of each factual matter alleged by the Division and shall affirmatively allege a short, plain statement of each relevant affirmative defense the provider may have.

(2) Hearing rights under OAR 309-012-0210(1). The immediate suspension or denial of a Certificate under OAR 309-012-0210(1) is made pending a fair hearing not later than the tenth day after such suspension or denial.

(3) Issue at hearing after immediate suspension or denial pursuant to OAR 309-012-0210(1)(a). The issue at a hearing on Certificate denial or revocation pursuant to this rule is limited to whether the provider was or is in compliance at the end of the time specified by the Division following the finding of substantial failure to comply.

Stat. Auth.: ORS 179.040, 179.505, 426.175, 430.010, 430.640 & 743.556
Stats. Implemented: 430.620
Hist.: MHD 4-1992, f. & cert. ef. 8-14-92

309-012-0230

Availability of Information to Coordinated Care Organizations and Other Health Plans

Upon completion of the site review process and the issuance of a Certificate of Approval for Mental Health Services, the Division shall make copies of the following information available to Coordinated Care Organizations and other health plans for the purpose of credentialing a provider:

(1) A current program description that reflects the type and scope of behavioral health services provided by the applicant;

(2) Provider policies and procedures regarding the provider’s credentialing practices of individual clinicians;

(3) Statements of provider’s liability insurance coverage;

(4) An attestation from the Authority verifying that the provider has passed a screening and meets the minimum requirements to Medicaid provider;

(5) Reports detailing the findings of the Division’s site review of the provider;

(6) The provider’s Medicaid Vendor Identification Number issued by the Authority;

(7) Copies of the provider’s policies and procedures regarding seclusion and restraint practices; and

(8) Copies of the provider’s Code of Conduct.

Stat. Auth.: ORS 413.042 & 430.256
Stats. Implemented: ORS 430.01030, 430.306, 430.397, 430.405, 430.450, 430.630, 430.850, 443.400, 813.020, 813.260 & 813.500
Hist.: MHS 14-2013(Temp), f. & cert. ef. 12-20-13 thru 6-18-14; MHS 10-2014, f. 6-10-14, cert. ef. 6-19-14

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