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OREGON HEALTH LICENSING AGENCY

 

DIVISION 20

AGENCY REGULATORY OPERATIONS RULES

331-020-0000

Contested Case Procedure

(1) Subject to the approval of the Attorney General, an officer or employee of the agency is authorized to appear on behalf of any Board, Council, or Program administered by the agency when the agency proposes to refuse to issue, renew, suspend, revoke, place on probation or impose a civil penalty on any applicant, licensee, registrant or other individual.

(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, rule, and/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 evidence, examination and cross-examination of witnesses or presentation of factual arguments or arguments on:

(A) The application of the facts to the statutes or rules directly applicable to the issues 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; and

(D) The admissibility of evidence or the correctness of procedures being followed.

Stat. Auth.: ORS 183, OL 2003, m Ch. 547, Sec. 4
Stats. Implemented: ORS 183, OL 2003, m Ch. 547, Sec. 4
Hist.: HLO 1-2004, f. & cert. ef. 2-13-04

331-020-0010

Requiring an Answer to Charges as Part of Notices to Parties in Contested Cases

In addition to the requirements stated in OAR 137-003-0000 of the Attorney General's Model Rules of Procedure adopted under 331-001-0010, the notice to parties in contested cases may include a statement that an answer to the assertions or charges will be required and, if so, the consequence of failure to answer. A statement of the consequences of failure to answer may be satisfied by enclosing a copy of 331-020-0020 with the notice.

Stat. Auth.: ORS 183
Stats. Implemented: ORS 183
Hist.: HLO 1-2004, f. & cert. ef. 2-13-04

331-020-0020

Hearing Requests and Answers; Consequences of Failure to Answer

(1) A hearing request, and answer when required, shall be made in writing to the Agency by the party or the party’s attorney.

(2) An answer shall be made in writing to the Agency with any request for a hearing on a matter related to violations alleged under ORS 675.360 to 675.410, 687.405 to 687.495, 688.808 to 688.840, the rules adopted thereunder, or violations alleged under 676.612 when related to the practice of direct entry midwifery, sex offender treatment, respiratory care or polysomnography. The answer shall include the following:

(a) An admission or denial of each factual matter alleged in the notice; and

(b) A short, concise statement of each relevant affirmative defense the party may have.

(3) When an answer is required:

(a) Factual matters alleged in the notice and not denied in the answer shall be presumed admitted;

(b) Failure to raise a particular defense in the answer will be considered a waiver of such defense;

(c) New matters alleged in the answer (affirmative defenses) shall be presumed to be denied by the agency; and

(d) Evidence shall not be taken on any issue not raised in the notice and the answer.

(4) When an answer is required, the party or party’s attorney may amend the response and answer, but no later than 10 days before the scheduled contested case hearing.

Stat. Auth.: ORS 183
Stats. Implemented: ORS 183
Hist.: HLO 1-2004, f. & cert. ef. 2-13-04; HLA 1-2012(Temp), f. & cert. ef. 3-1-12 thru 8-27-12; HLA 9-2012, f. 5-10-12, cert. ef. 5-15-12

331-020-0030

Inquiries; Filing a Complaint

(1) An individual may contact the Oregon Health Licensing Agency to inquire on the licensing record, status or employment of a person issued an authorization by the agency, or to comment on any issue concerning an individual regulated by the agency.

(2) Complaints against individuals practicing in one of the professions listed in ORS 676.606, may be filed with the agency. The complaint may be made on forms provided by the agency, which includes the following information:

(a) The name, address and telephone number of the person making the complaint;

(b) The name of the person or facility against which the complaint is being made;

(c) A concise description of the charge against the person or facility listing the date, time and circumstances of the alleged violation; and

(d) The signature of the person making the complaint.

Stat. Auth.: ORS 183, 676.605, 676.606
Stats. Implemented: ORS 183, 676.605, 676.606
Hist.: HLO 1-2004, f. & cert. ef. 2-13-04; HLA 1-2009, f. & cert. ef. 6-1-09

331-020-0040

Complaint Processing and Investigation

Pursuant to ORS 676.608, complaints filed with the Oregon Health Licensing Agency will be handled as follows:

(1) The agency will determine if the complaint is related to a profession or occupation regulated and administered by the agency and the complaint falls within authority delegated to the agency by statute.

(2) The agency investigator(s):

(a) Will review the information and as applicable, interview parties and witnesses, and examine physical evidence relating to the complaint;

(b) Will advise on whether an authorization holder or other individual practiced within the acceptable standards of the particular program;

(c) Will make recommendations for agency action.

(3) After receiving advice from the investigator(s), the agency will determine what action will be taken in accordance with ORS 676.608.

(4) As used in ORS 676.608(8), to "appear before the agency" includes: an investigative interview conducted under oath, under subpoena or otherwise compelled; an interview or hearing before a board, council, or subcommittee of a board or council; any depositions authorized by the agency; pre-hearing conferences; and contested case hearings. It does not include interrogatories, written admissions, other written communications, or voluntary communications.

Stat. Auth.: ORS 183, 676.605, 676.608 & 676.61
Stats. Implemented: ORS 183, 676.605, 676.608 & 676.615
Hist.: HLO 1-2004, f. & cert. ef. 2-13-04; HLA 1-2009, f. & cert. ef. 6-1-09; HLA 1-2011(Temp), f. & cert. ef. 3-1-11 thru 8-28-11; HLA 2-2011(Temp), f. & cert. ef. 3-17-11 thru 8-28-11; HLA 8-2011, f. 8-9-11, cert. ef. 8-15-11

331-020-0050

Response to Inquiry

Any person subject to a complaint involving conduct or service performed or provided may be required by the agency to respond. The person must respond to the agency within 20 calendar days from the date of the request, in the form and manner requested by the agency.

Stat. Auth.: ORS 183
Stats. Implemented: ORS 183
Hist.: HLO 1-2004, f. & cert. ef. 2-13-04

331-020-0060

Civil Penalty Considerations

(1) Pursuant to ORS 676.992, any person who violates any provision of law or rules of a regulated profession administered by the Oregon Health Licensing Agency and listed in ORS 676.606, may incur, in addition to any other penalty provided by law, a civil penalty in an amount not to exceed $5,000 for each violation.

(2) In establishing the amount of the penalty for each violation, the agency will consider and evaluate each case on an individual basis. The agency will consider, but not be limited to factors listed in ORS 676.992, in determining the amount of the penalty.

Stat. Auth.: ORS 676.615, 676.992
Stats. Implemented: ORS 676.615, 676.992
Hist.: HLO 1-2004, f. & cert. ef. 2-13-04; HLA 1-2009, f. & cert. ef. 6-1-09

331-020-0070

Discipline

(1) The Oregon Health Licensing Agency may discipline authorization holders for violations of laws and rules, in accordance with ORS 676.612 and 676.992.

(2) Failure to cooperate with the agency or its agent is unprofessional conduct and is subject to disciplinary sanctions, which may include suspension or revocation and refuse to issue or renew or place on probation and assessment of civil penalties. Failure to cooperate with the agency or its agent includes, but is not limited to, the following:

(a) Failing to provide information within the specified time allotted and as requested by the agency;

(b) Failing to temporarily surrender custody of original client records to the agency upon request, which includes treatment charts, models, health histories, billing documents, correspondence and memoranda;

(c) Interference, use of threats or harassment which delays or obstructs any person in providing evidence in any investigation, contested case, or other legal action instituted by the agency;

(d) Interference, use of threats or harassment which delays or obstructs the agency in carrying out its functions under individual programs administered and regulated by the agency as listed in ORS 676.606 and rules adopted thereunder; or

(e) Deceiving or attempting to deceive the agency regarding any matter under investigation including altering or destroying any records.

(3) The agency, at its discretion, may require supplemental training in an appropriate area of study as determined by the agency, board or council, as a disciplinary sanction. Supplemental training may be in addition to assessment of a monetary penalty or the agency, board or council may waive or reduce a penalty, in cases requiring supplemental training.

(4) As used in ORS 676.612(2)(j) incompetence means engaging in conduct which evidences a lack of ability or fitness to perform the holder’s professional functions.

(5) As used in ORS 676.612(2)(j) negligence means engaging in conduct detrimental to the client.

Stat. Auth.: ORS 676.607, 676.612, 676.992
Stats. Implemented: ORS 676.607, 676.612, 676.992
Hist.: HLO 1-2004, f. & cert. ef. 2-13-04; HLA 1-2009, f. & cert. ef. 6-1-09; HLA 8-2011, f. 8-9-11, cert. ef. 8-15-11

331-020-0080

Sanctions

(1) CHILD SUPPORT IN ARREARS: In accordance with ORS 25.750 to 25.783, the Oregon Health Licensing Agency will provide the Support Enforcement Division of the Department of Justice with authorization information which may be electronically cross-matched with Support Enforcement Division's records for persons under order of judgment to pay monthly child support and who are in arrears according to ORS 25.750(a), (b), and/or (c).

(2) The agency will suspend the authorization, if the Support Enforcement Division or the district attorney identifies the authorization holder as being in arrears with respect to any judgment or order requiring the payment of child support and that the case is being enforced under the provisions of ORS 25.080.

(3) Pursuant to ORS 25.750 to 25.785, the agency will notify the authorization holder of the suspension status and refer the person to the Support Enforcement Division or the district attorney for resolution.

(4) Upon notification by the Support Enforcement Division or district attorney and receipt of a release notice that the conditions resulting in the suspension no longer exist, the agency will reinstate the authorization upon compliance with all qualifications for renewal or reactivation.

(5) DEFAULT TAX FILING OR PAYMENT: In accordance with ORS 305.385, upon request the agency will provide the Department of Revenue with authorization information to determine if the holder has neglected or refused to file any return or to pay any tax without filing a petition with the department as stated in ORS 305.385(4)(a).

(6) The agency will propose to take action against an authorization holder identified by the Department of Revenue. If the agency proposes to refuse to issue, renew or suspend an authorization, opportunity for hearing will be accorded as provided in ORS 183.413 to 183.470 for contested cases.

(7) Upon notification by the department and receipt of a notice of release issued by the department that the authorization holder is in good standing with respect to any returns due and taxes payable to the department as of the date of the notice of release, the agency will renew, reactivate or release from suspension the authorization upon compliance with any qualifications for renewal or reactivation.

Stat. Auth.: ORS 25.080, 25.750 - 25.785, 183.310 - 183.470, 305.385, 348.393 - 348.399, 676.606, 676.612, 676.615
Stats. Implemented: ORS 25.080, 25.750 - 25.783, 183.310 - 183.470, 305.385, 348.393 - 348.399, 676.612 Hist.: HLO 1-2004, f. & cert. ef. 2-13-04
Hist.: HLO 1-2004, f. & cert. ef. 2-13-04; Renumbered from 331-030-0030, HLA 1-2009, f. & cert. ef. 6-1-09

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