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The Oregon Administrative Rules contain OARs filed through June 15, 2014
 
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OREGON HEALTH AUTHORITY,
PUBLIC HEALTH DIVISION

 

DIVISION 536

IN-HOME CARE AGENCIES

333-536-0000

Purpose

The purpose of these rules is to establish standards for licensure of In-Home Care Agencies.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.305 - 443.355
Hist.: OHD 19-2002, f. 12-4-02, cert. ef. 2-1-03; PH 3-2004(Temp), f. & cert. ef. 2-6-04 thru 7-30-04; PH 22-2004, f. & cert. ef. 6-25-04; PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0005

Definitions

As used in OAR 333-536-0000 through 333-536-0125, the following definitions apply:

(1) “Abuse.”

(a) As it applies to an adult, includes but is not limited to:

(A) Any physical injury caused by other than accidental means, or that appears to be at variance with the explanation given of the injury.

(B) Neglect that leads to physical harm through withholding of services necessary to maintain health and well-being.

(C) Abandonment, including desertion or willful forsaking of a person or the withdrawal or neglect of duties and obligations owed a person.

(D) Willful infliction of physical pain or injury.

(E) Use of derogatory or inappropriate names, phrases or profanity, ridicule, harassment, coercion, threats, cursing, intimidation or inappropriate sexual comments or conduct of such a nature as to threaten significant physical or emotional harm to a person.

(F) Wrongfully taking or appropriating money or property, of knowingly subjecting a person to harm by conveying a threat to wrongfully take or appropriate money or property, which threat reasonably would be expected to cause the person to believe that the threat will be carried out.

(G) Sexual contact with a non-consenting person or with a person considered incapable of consenting to a sexual act as described in ORS 163.315. As used in this paragraph, "sexual contact" has the meaning given that term in ORS 163.305.

(b) As is applies to a child, has the same meaning as "abuse" as that term is defined in ORS 419B.005.

(2) "Activities of daily living" means self-care activities that must be accomplished by an individual to meet his or her daily needs.

(3) "Agency" means In-Home Care Agency.

(4) "Branch office" means a location or site from which an in-home care agency provides services within a portion of the total geographic area served by the parent agency. The site of the branch office generally does not exceed one hour of travel time from the parent agency. The branch office is part of the in-home care agency and is located sufficiently close to share administration, supervision, and services in a manner that renders it unnecessary for the branch to independently meet the requirements of an in-home care agency.

(5) "Caregiver" means a person providing assistance with activities of daily living or assistance with personal care tasks, household and supportive services, or medication services as authorized by these rules.

(6) "Client representative" means:

(a) A parent, stepparent, foster parent, or other adult with primary caregiving responsibility for the client when the client is a child; or

(b) An individual, paid or unpaid, related or unrelated, who acts on behalf of, or cares for the client when the client is an adult.

(7) “Division” means the Public Health Division of the Oregon Health Authority.

(8) "Home health agency" has the meaning given that term in ORS 443.005.

(9) “Hospice program” has the meaning given that term in ORS 443.850.

(10) "In-home care agency" means an agency primarily engaged in providing in-home care services for compensation to an individual in that individual's place of residence. "In-home care agency" does not include a home health agency or portion of an agency providing home health services as defined in ORS 443.005.

(11) "In-home care services" means personal care services furnished by an in-home care agency, or an individual under an arrangement or contract with an in-home care agency, that are necessary to assist an individual in meeting the individual's daily needs, but do not include curative or rehabilitative services.

(12) "Licensed" means that the person or agency for which the term applies is currently licensed, certified, or registered by the proper authority within the State of Oregon.

(13) “Management experience” means the administration, supervision or management of individuals in a health related field including hiring, assigning, evaluating and taking disciplinary actions.

(14) "Medication administration" means administering medications to a client or directly supervising the client who is not able or not willing to self-direct, but may be physically able to perform the tasks. Medication administration includes but is not limited to taking the client’s medications from original containers and putting the medications into closed secondary containers designed and manufactured for this purpose.

(15) “Medication assistance” means helping the client who is able to self-direct with one or more steps in the process of taking medication, but does not mean medication administration as defined in these rules. Examples of medication assistance include, but are not limited to, opening the medication container, helping the client self-administer his or her medication, and assisting the client with one or more steps of medication administration at the client’s direction.

(16) “Medication reminding” means providing a client with an audio, visual or oral reminder to take his or her medication when a client is able to self-direct.

(17) “Medication services” means medication assistance or medication administration but does not include medication reminding.

(18) “Nursing services” means the provision of services that are deemed to be the practice of nursing as defined by ORS 678.010. These services include but are not limited to the delegation of specific tasks of nursing care to unlicensed persons in accordance with the Oregon State Board of Nursing administrative rules, chapter 851, division 047. Nursing services are not rehabilitative or curative, but are maintenance in nature.

(19) "Parent agency" means the in-home care agency that develops and maintains administrative controls of subunits or branch offices.

(20) "Personal care services" means the provision of or assistance with tasks intended to supplement a client's own personal abilities which are necessary to accomplish the client's activities of daily living and other activities as described in OAR 333-536-0045(1), and are preventive and maintaining in nature.

(21) “Professional experience” means having a nursing, medical, therapeutic license, certificate or degree used to work in a health-related field or program or completion of a Division approved training program.

(22) “Qualified entity” means an entity whose training program has been approved by the Division.

(23) “Qualified individual” means an individual who:

(a) Has completed a Division approved training program; or

(b) Is currently licensed as a registered nurse, practical nurse, physician assistant, or pharmacist; or

(c) Is another health care professional not listed in subsection (23)(b) who has been approved by the Division to conduct training.

(24) "Registered nurse" (RN) means a person licensed under ORS chapter 678.

(25) "Schedule caregivers" means to plan appointments for caregivers to deliver specific in-home care services to clients; the times and dates of these appointments are set by the in-home care agency.

(26) “Self-direct” means to be oriented and to know:

(a) The reason why each medication is taken, i.e. for what condition;

(b) The amount or dose of medication that needs to be taken;

(c) The route the medication needs to be taken; and

(d) The time of day the medication needs to be taken.

(27) "Stable and predictable" means a situation where the client's clinical and behavioral state is known, not characterized by rapid changes, and does not require continuous reassessment and evaluation.

(28) "Subunit" means an in-home care agency that provides for a parent agency in a geographic area different from that of the parent agency and generally exceeding one hour of travel time from the location of the parent agency.

(29) “Survey” means an inspection of an applicant for an in-home care agency license or a licensed in-home care agency to determine the extent to which the applicant or in-home care agency is in compliance with state in-home care agency statutes and these rules.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.305 - 443.355
Hist.: OHD 19-2002, f. 12-4-02, cert. ef. 2-1-03; PH 3-2004(Temp), f. & cert. ef. 2-6-04 thru 7-30-04; PH 22-2004, f. & cert. ef. 6-25-04; PH 14-2007, f. 12-19-07, cert. ef. 1-1-08; PH 5-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; PH 11-2011, f. & cert. ef. 10-27-11; PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0007

Classification

(1) Agencies shall be classified according to the services provided (see Table 1). An agency shall be classified as:

(a) Limited; An agency that provides personal care services that may include medication reminding but does not provide medication assistance, medication administration, or nursing services;

(b) Basic; An agency that provides personal care services that may include medication reminding and medication assistance but does not provide medication administration or nursing services;

(c) Intermediate; An agency that provides personal care services that may include medication reminding, medication assistance and medication administration but does not provide nursing services; or

(d) Comprehensive; An agency that provides personal care services that may include medication reminding, medication assistance, medication administration and nursing services.

(2) Medication services training for caregivers employed by an agency classified as Basic, Intermediate or Comprehensive shall be provided by a qualified individual or entity.

(3) Agencies licensed by the Division must neither assume a descriptive title nor be held out under any descriptive title other than the classification title established by the Division and under which the agency is licensed. No agency licensed by the Division shall provide services or use a classification title in its advertising, publicity, or any other form of communication other than what the agency is licensed to provide.

[ED. NOTE: Tables referenced are not included in rule text. Click here for PDF copy of table(s).]

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315
Hist.: PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0010

Application for Licensure

(1) An agency that establishes, conducts, or represents itself to the public as providing in-home care services must be licensed by the Division and must comply with ORS 443.305 through 443.355 and these rules. The provisions of ORS 443.305 through 443.355 do not apply to organizations licensed, registered or certified under ORS 101.030, 410.495, 443.410, 443.485, 443.725, 443.860, or 443.886. The provisions of ORS 443.305 through 443.355 do not apply to independent individuals, volunteers, family, neighbors, or to agencies offering only housekeeping or on-call staffing for facilities, or to support services provided and funded by the Department of Human Services. Entities that provide referral or matching services that link in-home care services with clients are not required to be licensed under these rules, unless they do one or more of the following:

(a) Schedule caregivers (as defined in OAR 333-536-0005);

(b) Assign work;

(c) Assign compensation rates;

(d) Define working conditions;

(e) Negotiate for a caregiver or client for the provision of services; or

(f) Place a caregiver with a client.

(2) Application for a license to operate an in-home care agency shall be in writing on a form provided by the Division and shall include, but is not limited to, demographic, ownership and administrative information about the agency.

(3) If an owner or administrator has direct contact with a client, the owner or administrator must submit background information to the Division in accordance with OAR 333-536-0093 for the purposes of conducting a criminal records check.

(4) If any of the information delineated in an agency's most recent application changes at a time other than the annual renewal date, an agency shall submit a revised application to the Division within 30 days of the change.

(a) An agency that submits a revised application that contains a change to any of the following must obtain Division approval prior to implementation:

(A) Administrator;

(B) Agency classification;

(C) Branch and subunit; and

(D) Geographic service area exceeding one hour’s travel time.

(b) In determining whether to grant approval for changes identified in subsection (4)(a) of this rule, the Division may request agency documents or records for review to determine compliance with in-home care licensing laws and rules, or may conduct an on-site inspection.

(5) No entity shall provide in-home care services or use the term "in-home care agency" in its advertising, publicity, or any other form of communication unless it holds a current valid license as an in-home care agency in accordance with the provisions within.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315 & 443.340
Hist.: OHD 19-2002, f. 12-4-02, cert. ef. 2-1-03; PH 3-2004(Temp), f. & cert. ef. 2-6-04 thru 7-30-04; PH 22-2004, f. & cert. ef. 6-25-04; PH 14-2007, f. 12-19-07, cert. ef. 1-1-08; PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0015

Review of License Application

Upon receipt of a completed initial application and the required fee, the Division shall conduct a survey in accordance with OAR 333-536-0041 of an agency or any subunit to determine if an agency or subunit is in compliance with these rules and ORS 443.305 through 443.355, and has the intent to provide in-home care services.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315 & 443.340
Hist.: OHD 19-2002, f. 12-4-02, cert. ef. 2-1-03; PH 3-2004(Temp), f. & cert. ef. 2-6-04 thru 7-30-04; PH 22-2004, f. & cert. ef. 6-25-04; PH 14-2007, f. 12-19-07, cert. ef. 1-1-08; PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0021

Approval of License Application

(1) The Division shall notify an applicant in writing if a license application is approved.

(2) A license shall be issued only for an agency and person(s) named in the application and may not be transferred or assigned.

(3) The license shall be conspicuously posted in an office that is viewable by the public.

Stat. Auth.: ORS 443.340
Stat. Auth.: ORS 443.315 & 443.340
Hist.: PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0023

Denial of License Application

If the Division intends to deny a license application, it shall issue a Notice of Proposed Denial of License Application in accordance with ORS 183.411 through 183.470.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.325
Hist.: PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0025

Expiration and Renewal of License

Each license to operate an in-home care agency shall expire twelve months from the date of issue. If renewal is desired, the licensee shall make application at least 30 days prior to the expiration date upon a form prescribed by the Division.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.305 - 443.350
Hist.: OHD 19-2002, f. 12-4-02, cert. ef. 2-1-03; PH 3-2004(Temp), f. & cert. ef. 2-6-04 thru 7-30-04; PH 22-2004, f. & cert. ef. 6-25-04; PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0031

Fees

(1) The fee for an initial in-home care agency license shall be $1,500. If the agency has subunits, the fee for an initial license shall be $1,500 for the parent agency, plus an additional $750 for each subunit.

(2) The fee for a renewed in-home care agency license shall be $750. If the agency has subunits, the fee for a renewed license shall be $750 for the parent agency, plus an additional $750 for each subunit.

(3) If the ownership of an agency changes other than at the time of the annual renewal, the licensure fee shall be $350, plus an additional $350 for each subunit.

(4) All application fees are non-refundable.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315 & 443.340
Hist.: PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0033

Denial, Suspension or Revocation of License

(1) A license for an in-home care agency may be denied, suspended or revoked by the Division when an in-home care agency has failed to comply with ORS 443.305 through 443.355 or with OAR chapter 333, division 536, including but not limited to an owner or administrator of the in-home care agency permitting, aiding or abetting any illegal act affecting the welfare of the client.

(2) The Division may deny, suspend or revoke the license of any in-home care agency for failure to comply with ORS 443.004.

(3) A failure to comply with ORS 443.305 through 443.355 includes but is not limited to:

(a) Failure to provide a written disclosure statement to a client or a client's representative prior to in-home care services being rendered;

(b) Failure to provide the contracted in-home care services; or

(c) Failure to correct deficiencies identified during a Division inspection or complaint investigation.

(4) If the Division intends to suspend or revoke an agency license, it shall do so in accordance with ORS 183.411 through 183.470.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315 and 443.325
Hist.: PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0035

Return of Agency License

Each license certificate in the licensee's possession shall be returned to the Division immediately upon the suspension or revocation of the license, failure to renew the license by the date of expiration, or if operation is discontinued by the voluntary action of the licensee.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315 & 443.340
Hist.: OHD 19-2002, f. 12-4-02, cert. ef. 2-1-03; PH 3-2004(Temp), f. & cert. ef. 2-6-04 thru 7-30-04; PH 22-2004, f. & cert. ef. 6-25-04; PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0041

Surveys

(1) The Division shall, in addition to any investigations conducted pursuant to OAR 333-536-0043, conduct at least one survey of each in-home care agency prior to services being rendered and once every three years thereafter as a requirement of licensing and at such other times as the Division deems necessary.

(2) In lieu of an on-site inspection required by section (1) of this rule, the Division may accept a certification or accreditation from a federal agency or an accrediting body approved by the Division that state licensing standards have been met if an in-home care agency:

(a) Notifies the Division to participate in any exit interview conducted by the federal agency or accrediting body; and

(b) Provides copies of all documentation concerning the certification or accreditation requested by the Division.

(3) An in-home care agency shall permit Division staff access to any location from which it is operating its agency or providing services during a survey.

(4) A survey may include but is not limited to:

(a) Interviews of clients, client family members, agency management and staff;

(b) On-site observations of clients and staff performance;

(c) Review of documents and records;

(d) Client audits.

(5) An in-home care agency shall make all requested documents and records available to the surveyor for review and copying.

(6) Following a survey, Division staff may conduct an exit conference with an agency owner, administrator, or designee. During an exit conference, Division staff shall:

(a) Inform the agency owner, administrator or designee of the preliminary findings of the inspection; and

(b) Give the owner, administrator or designee a reasonable opportunity to submit additional facts or other information to the surveyor in response to those findings.

(7) Following a survey, Division staff shall prepare and provide the agency owner or administrator specific and timely written notice of the findings.

(8) If the findings result in a referral to another regulatory agency, Division staff shall submit the applicable information to that referral agency for its review and determination of appropriate action.

(9) If no deficiencies are found during a survey, the Division shall issue written findings to the agency owner or administrator indicating that fact.

(10) If deficiencies are found, the Division shall take informal or formal enforcement action in accordance with OAR 333-536-0117 or 333-536-0120.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315 & 443.340
Hist.: PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0042

Complaints

(1) Any person may make a complaint verbally or in writing to the Division regarding an allegation as to the care or services provided by an in-home care agency or violations of in-home care agency laws or regulations.

(2) The identity of a person making a complaint will be kept confidential.

(3) Information obtained by the Division during an investigation of a complaint or reported violation is confidential and not subject to public disclosure under ORS 192.410 through 192.505.

(4) Upon conclusion of an investigation, the Division may publicly release a report of its findings but may not include information in the report that could be used to identify the complainant or any client of an in-home care agency. The Division may use any information obtained during an investigation in an administrative or judicial proceeding concerning the licensing of an in-home care agency.

(5) An employee with knowledge of a violation of law or rules of the Division shall use the reporting procedures established by an in-home care agency before notifying the Division or other state agency of the inappropriate care or violation, unless the employee:

(a) Believes a client’s health or safety is in immediate jeopardy; or

(b) Files a complaint in accordance with section (1) of this rule.

(6) If a complaint involves an allegation of criminal conduct or an allegation that is within the jurisdiction of another local, state, or federal agency, the Division shall refer the matter to that agency.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315, 443.340 & 443.355
Hist.: PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0043

Investigations

(1) An unannounced complaint investigation shall be carried out within 45 calendar days of receipt of the complaint and may include, but is not limited to:

(a) Interviews of the complainant, caregivers, clients, a client’s representative, a client’s family members, witnesses, and agency management and staff;

(b) On-site observations of the client(s), staff performance, client environment; and

(c) Review of documents and records.

(2) Should the complaint allegation represent an immediate threat to the health or safety of a client, the Division shall notify appropriate authorities to ensure a client's safety, and an investigation shall be commenced within two working days.

(3) An agency shall permit Division staff access to the agency during an investigation.

(4) An agency shall cooperate with investigations of allegations of client abuse and neglect conducted by the Department of Human Services, Oregon Health Authority, Adult Protective Services, and other agencies such as law enforcement.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315 & 443.340
Hist.: PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0045

Services Provided

(1) The services provided by an agency must include the safe provision of or assistance with, personal care tasks related to one or more of the following:

(a) Bathing;

(b) Personal grooming and hygiene;

(c) Dressing;

(d) Toileting and elimination;

(e) Mobility and movement;

(f) Nutrition/hydration and feeding;

(g) Medication reminding.

(2) An agency may provide medication reminding services for clients who can self-direct as defined in OAR 333-536-0005 if the agency:

(a) Documents the client’s knowledge of the following information using a standardized form required by the Division:

(A) The reason why each medication is taken;

(B) The amount or dose of each medication that needs to be taken;

(C) The route the medication needs to be taken; and

(D) The time of day each medication needs to be taken.

(b) Retains a copy of the standardized form, signed by the client, where an agency has determined the client can self administer medications.

(3) An agency must evaluate whether a client can continue to self-direct at a minimum of every 90 days. If it is determined that a client can no longer self-direct, arrangements shall be made to transfer the client to an agency with a higher license classification within 30 days if the agency providing current services is not classified as such.

(4) All documentation required in sections (2) and (3) of this rule shall be kept in the client’s record.

(5) In addition to personal care tasks, an agency may also provide one or more of the following services upon approval by the Division:

(a) Non-injectable medication assistance;

(b) Non-injectable medication administration; or

(c) Nursing services.

(6) An agency may also provide housekeeping and other supportive services. Such tasks include, but are not limited to:

(a) Housekeeping;

(b) Laundry;

(c) Shopping and errands;

(d) Transportation; and

(e) Arranging for medical appointments.

(7) If an agency has clients who receive only housekeeping and support services, the agency is not required to comply with the following rules for those specific clients: OAR 333-536-0065, 333-536-0070, 333-536-0075, 333-536-0080, 333-536-0085 and 333-536-0090.

(8) Services described in this rule shall be primarily provided at the client's residence. In addition, the services may be rendered at nonresidence locations as specified in the client's service plan.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315 & 443.340
Hist.: OHD 19-2002, f. 12-4-02, cert. ef. 2-1-03; PH 3-2004(Temp), f. & cert. ef. 2-6-04 thru 7-30-04; PH 22-2004, f. & cert. ef. 6-25-04; PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0050

Organization, Administration, and Personnel

(1) An agency shall clearly set forth in writing the organization, services provided, administrative control, and lines of authority and responsibility from the owner to the client-care level.

(a) An agency shall not assign administrative and supervisory functions to another agency or organization.

(b) An agency shall control and be responsible for all services provided.

(c) An agency shall be required to maintain administrative and professional oversight to ensure the quality of services provided.

(d) All agency records must be kept separate and distinct from other business entities.

(2) Geographic service area:

(a) An agency shall identify in writing the geographic area in which it generally intends to provide services.

(b) The geographic service area shall be within a distance from a parent agency which ensures appropriate and timely delivery and supervision of services with the following exception:

(A) An agency caregiver may accompany a client outside the geographic service area if all of the following conditions are met:

(i) A client has requested an agency caregiver to accompany the client; and

(ii) The travel plans are described and documented in a client’s service plan.

(B) An agency shall require a caregiver who accompanies a client outside the geographic service area to:

(i) Document all services and care provided to the client on a daily basis;

(ii) Report to the agency administrator or designee either by phone or e-mail the status of the client before leaving the geographic service area and immediately upon return;

(iii) Check-in with the agency administrator no less than once per week if the travel results in the client and caregiver being gone for more than one week; and

(iv) Be certified in Cardiopulmonary Resuscitation (CPR).

(C) If the client’s condition changes while traveling, the caregiver must contact the agency administrator or designee immediately.

(D) An agency shall develop policies and procedures which address what caregivers must do when their client’s condition changes while the client and caregiver are out of the agency’s geographic service area.

(3) If an agency operates a branch office:

(a) The branch office shall be located within the parent agency's geographic service area at a distance from the parent agency that generally does not exceed one hour's travel time.

(b) The branch office shall be operated under the management and supervision of the parent agency. Administrative and personnel functions must be retained at the parent agency. The branch office must not function as an independent agency.

(c) Services must not be provided from the branch office until the branch office has been added to the license of the parent agency in accordance with Division procedures.

(4) If an agency provides services from an office generally exceeding one hour of travel time located outside of a parent agency's geographic service area, that office will constitute a subunit of the agency. If the agency has subunits:

(a) The subunit shall have its own staff, separate from parent agency staff, and shall operate independently of the parent agency.

(b) The subunit shall independently meet all licensing requirements, be separately licensed from the parent agency, and pay a separate licensure fee.

(5) An agency's owner or designee shall:

(a) Assume full legal, financial, and overall responsibility for the agency's operation; and

(b) Serve as, or employ, a qualified administrator.

(6) An administrator shall meet the following qualifications:

(a) Possess a high school diploma or equivalent; and

(b) Have at least two years of professional or management experience in a health-related field or program or have completed a training program approved by the Division.

(7) An administrator or designee shall be accessible and available during all hours in which services are being provided to clients and must be able to be on site at the parent agency location within a timely manner as needed. An administrator shall assign, in writing, a qualified designee to act as administrator in his or her temporary absence.

(8) An administrator or designee shall be responsible for:

(a) Organizing and directing the agency's ongoing functions;

(b) Developing and implementing written and current policies and procedures necessary to direct the administrative, personnel, and client care operations of the agency, including but not limited to the requirements in these rules;

(c) Ensuring the completeness and accuracy of all information provided to the public regarding the agency and its services;

(d) Ensuring the provision of safe and appropriate services in accordance with written service plans;

(e) Ensuring that all individuals providing services for the agency meet the qualification, orientation, competency, training, and education requirements in the rules;

(f) Ensuring that personnel and client care practices are consistent with the agency's written policies and procedures.

(g) Ensuring that client care assignments are based on the caregiver's abilities, skills, and competence;

(h) Ensuring that the agency does not accept or retain clients for whom it does not have the capabilities or resources to provide services;

(i) Ensuring the timely internal investigation of complaints, grievances, accidents, incidents, medication or treatment errors, and allegations of abuse or neglect involving individuals providing services for the agency. An agency shall maintain in its records documentation of the complaint or event, the investigation, the results, and actions taken;

(j) Ensuring the timely reporting of allegations of abuse or neglect to the appropriate authority that includes but is not limited to the Department of Human Services, Oregon Health Authority, Public Health Division, or local law enforcement agency.

(9) Personnel records for all caregiver, nursing staff, and employees shall include at a minimum the following:

(a) Evidence of pre-employment screening;

(b) Evidence that the in-home care agency has conducted a criminal records check on all subject individuals in accordance with OAR 333-536-0093.

(A) The in-home care agency must ensure that a criminal records check has been conducted on all subject individuals employed by or volunteering for an agency on or after July 6, 2011.

(B) If the screening indicates that a subject individual has been convicted for crimes against an individual or property, the agency shall make a determination of the individual’s fitness to provide care to clients in accordance with OAR 333-536-0093.

(c) Evidence that all position qualifications have been met, including required licensure;

(d) Current position job description(s) signed by the individual(s);

(e) Evidence of orientation, training, competency, and ongoing education;

(f) Evidence of annual performance evaluations; and

(g) Evidence of a valid driver's license with current auto insurance for each individual whose duties include transporting clients in motor vehicles.

(10) An agency shall comply with all applicable state and local laws, statutes, rules, and ordinances.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315 & 443.340
Hist.: OHD 19-2002, f. 12-4-02, cert. ef. 2-1-03; PH 3-2004(Temp), f. & cert. ef. 2-6-04 thru 7-30-04; PH 22-2004, f. & cert. ef. 6-25-04; PH 14-2007, f. 12-19-07, cert. ef. 1-1-08; PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0055

Disclosure, Screening, and Acceptance of Clients

(1) When an individual is accepted for agency service, a written disclosure statement shall be signed by the client or the client's representative. Evidence that the disclosure statement was given to the client or the client’s representative shall be incorporated into the client’s record.

(2) The disclosure statement must include the following:

(a) A description of the license classification and the services offered by the agency according to OAR 333-536-0045, including the extent of registered nurse involvement in the agency's operations and whether nursing services as described in OAR 333-536-0080 are provided;

(b) If the agency provides medication reminding or medication services, the qualifications of the individual(s) providing oversight of the agency's medication administration systems and the medication training and demonstration;

(c) A clear statement indicating that it is not within the scope of the agency's license to manage the medical and health conditions of clients who are no longer stable or predictable;

(d) The qualifications and training requirements determined by the agency for individuals providing direct client care;

(e) The charges for the services provided by the agency;

(f) A description of how the service plans are developed and reviewed and the relationship between the service plans and the cost of services;

(g) A description of billing methods, payment systems, and due dates;

(h) The policy for client notification of increases in the costs of services;

(i) The agency's refund policy;

(j) Criteria, circumstances, or conditions which may result in termination of services by the agency and client notification of such;

(k) Procedures for contacting the agency administrator or designee during all of the hours during which services are provided; and

(l) A copy of the client’s rights as written in OAR 333-536-0060.

(3) An agency administrator or designee shall conduct an initial screening to evaluate a prospective client's service requests and needs prior to accepting the individual for service. The extent of the screening shall be sufficient to determine the ability of the agency to meet those requests and needs based on the agency's overall service capability. The screening shall be documented, dated and signed by the individual who conducted it.

(4) An agency shall only accept or retain individuals for services for whom it can ensure the following:

(a) The agency has the capability to meet the in-home care needs of the individual;

(b) The agency employs a sufficient number of trained and competent staff and has adequate resources to provide the requested or needed services; and

(c) The agency is able to coordinate its services with the care and services provided by other organizations and individuals.

(5) The agency shall notify the client, or the client's representative, of the need for a referral for medical or health services if the client's medical or health condition is no longer stable and predictable. The agency may continue to provide in-home care services in the client's residence, but must not manage, or represent itself as able to manage a client's medical or health condition that is not stable and predictable.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315 & 443.340
Hist.: OHD 19-2002, f. 12-4-02, cert. ef. 2-1-03; PH 3-2004(Temp), f. & cert. ef. 2-6-04 thru 7-30-04; PH 22-2004, f. & cert. ef. 6-25-04; PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0060

Clients’ Rights

(1) The agency owner or administrator shall ensure that the agency recognizes and protects the following rights of each client:

(a) The right to be treated with dignity and respect;

(b) The right to be free from theft, damage, or misuse of one's personal property;

(c) The right to be given the informed choice and opportunity to select or refuse service and to accept responsibility for the consequences;

(d) The right to be free from neglect of care, verbal, mental, emotional, physical, and sexual abuse;

(e) The right to be free from financial exploitation;

(f) The right to be free from physical and chemical restraints;

(g) The right to voice grievances or complaints regarding services or any other issue without discrimination or reprisal for exercising such rights;

(h) The right to be free from discrimination in regard to race, color, national origin, gender, sexual orientation, or religion.

(i) The right to participate in planning of the services and care to be furnished, any changes in the services and care, the frequency of visits, and cessation of services;

(j) The right to have access to his or her client record;

(k) The right to have client information and records confidentially maintained by the agency;

(l) The right to be advised in writing, before care is initiated, of the charges for the services to be furnished, and the amount of payment that will be required from the client;

(m) The right to a written 30-day notice of termination of services by the agency that specifies the reason(s) for the termination with the following exceptions:

(A) The right to immediate oral or written notice of termination of services by the agency at the time the agency determines that the safety of its staff or the client cannot be ensured. If oral notice is given, the agency must also subsequently provide the client a written confirmation of the oral notice of termination of services.

(B) The right to a written 48-hour notice of termination of services by the agency in the event of non-payment in accordance with the agency's disclosed payment requirements.

(2) An agency shall provide each client with a written notice of the client's rights as a part of the disclosure statement, prior to furnishing care to a client. The client’s rights notice shall also include:

(a) Procedures for filing a grievance or complaint with the agency;

(b) Procedures for filing a grievance or complaint with the Division, along with the telephone number and contact information of the Division; and

(c) Notice that the Division has the authority to examine clients’ records as part of the Division’s regulation and evaluation of the agency.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315 & 443.340
Hist.: OHD 19-2002, f. 12-4-02, cert. ef. 2-1-03; PH 3-2004(Temp), f. & cert. ef. 2-6-04 thru 7-30-04; PH 22-2004, f. & cert. ef. 6-25-04; PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0065

Service Plan

For clients receiving services described in OAR 333-536-0045, the services provided shall be in accordance with a written service plan developed in conjunction with a client or the client's representative based on the client's or the client's representative's request and an evaluation of the client's physical, mental, and emotional needs. The service plan must be consistent with the agency's capabilities.

(1) The agency administrator or designee shall conduct an initial evaluation of the client. The evaluation must be documented, dated, and signed by the individual who conducted the evaluation, and maintained in the client's agency record.

(2) The agency administrator or designee, in conjunction with the client or the client's representative, shall complete a written service plan within seven days after the initiation of services. The agency administrator or designee shall ensure that the service plan includes a list of individuals participating in development of the plan. The agency administrator or designee shall also sign and date the service plan when it is complete and acceptable to all individuals participating in development of the plan.

(3) The completed service plan shall be client-directed or client representative-directed and include at least the following:

(a) The schedule for the provision of services specifying a range of hours for services per month;

(b) The services to be provided, specifying the tasks to be conducted; and

(c) Pertinent information about the client's needs in relation to the services to be provided to ensure the provision of safe and appropriate care.

(4) A client or a client's representative may request changes in the service plan. All changes must be communicated to the caregiver(s) and documented.

(5) An agency shall maintain the original service plan and all updated service plans in each client's agency record. Complete and legible copies of the service plan shall be given to the client or client's representative upon request.

(6) The administrator or designee must conduct an initial visit at the client's residence within 30 days of the initiation of services to evaluate compliance by the caregiver(s) with the service plan and to assess the client’s satisfaction. The initial visit must occur between the 7th and 30th day. An initial visit is not required when:

(a) A client cancels service on or before the 30th day;

(b) A client is residing in a nursing facility or a hospital; or

(c) A client refuses.

(7) The administrator or designee must conduct quarterly monitoring visits after the initial site visit. Quarterly monitoring visits may occur by phone or by other electronic means at the discretion of the administrator or designee under the following circumstances: impending discharge from services; relocation to a facility; when minimal services, such as one shift a month, would cause the client to incur undue financial burden; or, due to other circumstances that are justified in chart note(s). In no case shall the time between the in-person monitoring visits exceed a six-month period.

(8) Each monitoring visit to observe and report on the client's status must be documented, dated, and signed by the administrator or designee. The caregiver may be present during the monitoring visit.

(9) The administrator or designee must determine and document during a monitoring visit:

(a) Whether appropriate and safe techniques have been used in the provision of care;

(b) Whether the service plan has been followed as written;

(c) Whether the service plan is meeting the client's needs or needs to be updated;

(d) Whether the caregiver has received sufficient training for the client;

(e) Whether the client is satisfied with his or her relationship with the caregiver(s); and

(f) Whether appropriate follow-up is necessary for any identified issues or problems.

(10) If services are provided in a non-residential setting in accordance with the service plan, monitoring visits shall take place in the same setting that services are provided and must conform to the requirements set forth in this rule.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315 & 443.340
Hist.: OHD 19-2002, f. 12-4-02, cert. ef. 2-1-03; PH 3-2004(Temp), f. & cert. ef. 2-6-04 thru 7-30-04; PH 22-2004, f. & cert. ef. 6-25-04; PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0070

Caregiver Qualifications and Requirements

The personal care provided by an agency shall be rendered by qualified and trained employees under the supervision of the administrator or designee. The services shall be provided as requested by the client or client's representatives in accordance with these rules and the service plan.

(1) The agency owner or administrator shall ensure that the agency has qualified and trained employees sufficient in number to meet the needs of the clients receiving services.

(2) Caregivers must be at least 18 years of age and shall have sufficient communication and language skills to enable them to perform their duties and interact effectively with clients and other agency staff.

(3) Caregivers shall complete an agency-specific orientation, conducted by the agency administrator or designee, before independently providing services to clients.

(a) The orientation shall include, but not be limited to, the following subject areas:

(A) Caregivers' duties and responsibilities;

(B) Clients' rights;

(C) Ethics, including confidentiality of client information;

(D) The agency's infection control policies;

(E) A description of the services provided by the agency;

(F) Assignment and supervision of services;

(G) Documentation of client needs and services provided;

(H) The agency's policies related to medical and non-medical emergency response;

(I) The roles of, and coordination with, other community service providers;

(J) Information about what constitutes medication reminding and its specific limitations; and

(K) Other appropriate subject matter based on the needs of the special populations served by the agency.

(b) The content of the orientation, the date(s) and length, and the name(s) and signature(s) of the instructor(s) shall be clearly documented for each caregiver and maintained in personnel records.

(4) Caregivers shall complete appropriate training and must have their competency evaluated and documented by the administrator or designee before independently providing services to clients.

(a) Caregiver training shall be based on the services provided by the in-home care agency, including, as applicable, the following topics:

(A) Caregivers' duties and responsibilities;

(B) Recognizing and responding to medical emergencies;

(C) Dealing with adverse behaviors;

(D) Nutrition and hydration, including special diets and meal preparation and service;

(E) Appropriate and safe techniques in personal care tasks;

(F) Methods and techniques to prevent skin breakdown, contractures, and falls;

(G) Hand washing and infection control;

(H) Body mechanics;

(I) Maintenance of a clean and safe environment;

(J) Fire safety and non-medical emergency procedures;

(K) Assisting clients with self-directed or client representative-directed non-injectable medication administration; and

(L) Providing basic non-injectable medication services as described in OAR 333-536-0075.

(b) The content of the training, the date(s) and length, and name(s) and signature(s) of the instructor(s) shall be clearly documented for each caregiver and maintained in personnel records.

(c) Caregivers with proof of a current Oregon health-care related license or certificate are exempt from in-home caregiver training.

(d) Caregivers moving from one office to another in the same in-home care agency are not subject to additional training requirements, provided previous training is documented.

(e) Caregivers who have completed training previously, and have documentation of that training, shall have their competency evaluated by an agency representative, and any potential training may be limited to areas requiring improvement after the evaluation.

(f) Documentation of training and competency evaluation shall be included in the caregiver's personnel record.

(5) Caregivers shall receive a minimum of six hours of education related to caregiver duties annually. If a caregiver provides medication administration to a client, one additional hour of education shall be required annually related to providing medication administration.

(6) Caregiver Selection and Review of Service Plan.

(a) The skills of a caregiver must be matched with the care needs of a client. The administrator or designee must assign caregivers to specific clients based on the care needs of the clients and the skills of the caregivers.

(b) The client's service plan must be reviewed with each caregiver before the initial delivery of client care. The date of the review(s), the signature or a unique electronic identifier such as an individual’s log-in and password into a computer program or an electronic stamp of the agency administrator or designee and the list of assigned caregivers must be documented.

(c) Caregivers must provide services to clients in accordance with the service plans.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315 & 443.340
Hist.: OHD 19-2002, f. 12-4-02, cert. ef. 2-1-03; PH 3-2004(Temp), f. & cert. ef. 2-6-04 thru 7-30-04; PH 22-2004, f. & cert. ef. 6-25-04; PH 14-2007, f. 12-19-07, cert. ef. 1-1-08; PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0075

Medication Services

(1) If an agency has been approved to provide non-injectable medication services, the services shall be rendered by persons who meet the requirements of section (10) of this rule. The services shall be provided as requested by the client or client's representatives in accordance with these rules, accepted standards of medication practice, and the service plan.

(2) If a client representative or family member performs the task of filling secondary non-injectable medication containers from which an agency caregiver is to administer medication, an agency shall:

(a) Obtain a signed agreement from the client representative or family member that identifies their obligation to:

(A) Provide a list of the client's medication and a physical description of each with any special instructions. The list must be updated when changes to the client’s medication regimen are made;

(B) Keep the original labeled medication containers in the home for verification should the caregiver have questions; and

(C) Use closed non-injectable medication secondary containers designed and manufactured for that purpose that meet the labeling requirements of subsection (7)(d) of this rule.

(3) Agency staff shall obtain written or telephone orders from a physician or other legally recognized practitioner for all medications managed or administered by an agency under this rule and for any changes to those medications.

(a) Written orders shall be signed or confirmed by a physician or practitioner.

(b) Telephone orders shall be immediately recorded, dated, and signed by agency staff, and transmitted within 72 hours to the physician or practitioner for confirmation. The orders that have been signed or confirmed by the physician or practitioner shall be incorporated into the client's record within 30 days.

(4) An agency owner or administrator shall be responsible for developing and implementing safe and appropriate medication administration delivery systems and policies and procedures that include, but are not limited to:

(a) Provisions to ensure that each client receives the right medication, in the right amount, by the right route, and at the right time;

(b) Provisions to ensure that the caregivers are informed about the potential adverse reactions, side effects, drug-to-drug interactions and food-to-drug interactions, and contraindications associated with each client's medication regimen;

(c) Provisions to ensure that the caregivers promptly report problems or discrepancies related to each client's medication regimen to the caregivers' supervisor, agency administrator or designee;

(d) Provisions to ensure storage of medications at appropriate temperatures based on the manufacturer’s recommendations; and

(e) Provisions to ensure the security and integrity of narcotics and controlled substances.

(5) A client's service plan must specify the medication tasks to be performed.

(6) Records for medication administration shall include, but are not limited to, the name of each medication, the dosage to be administered, the route of administration, the frequency of administration, client medication allergies and sensitivities, client specific indicators for administration of as needed medications and other special instructions necessary for safe and appropriate administration.

(7) Packaging and labeling:

(a) Prescription medications shall be in the original pharmacy containers and clearly labeled with the pharmacists' labels.

(b) Samples of medications received from the physician or practitioner shall be in the original containers and have the original manufacturers' labels.

(c) Over-the-counter medications shall be in the original containers and have the original manufacturers' labels.

(d) Secondary containers and all removable compartments must be labeled with the client's name, the specific time the medications in each compartment are to be administered, the date and time the secondary container was filled, and the name of the individual who filled the container.

(e) Liquid and non-pill medications that cannot be put in secondary containers shall be appropriately labeled.

(8) The provision of medication tasks as described in this rule shall be documented by the individuals performing the tasks. The documentation shall include the tasks completed, the date and signature of the individual(s) performing the task(s), and shall be maintained in accordance with agency policies and procedures.

(9) Visits by a registered nurse to evaluate a client’s medication regimen and the provision of medication administration services shall be conducted and documented at least every 90 days for each client receiving medication administration services.

(10) Agency caregivers assigned to provide medication services must be given basic non-injectable medication training before providing the services. The medication training must include successful return demonstrations of non-injectable medications tasks by the caregivers.

(a) The medication training shall include at least the following areas:

(A) Medication abbreviations;

(B) Reading medication orders and directions;

(C) Reading medication labels and packages;

(D) Setting up medication labels and packages;

(E) Administering non-injectable medications:

(i) Pill forms, including identification of pills that cannot be crushed;

(ii) Non-injectable liquid forms, including those administered by syringe or dropper and eye and ear drops;

(iii) Suppository forms; and

(iv) Topical forms.

(F) Identifying and reporting adverse medication reactions, interactions, contraindications and side effects;

(G) Infection control related to medication administration; and

(H) Techniques and methods to ensure safe and accurate medication administration.

(b) Prior to providing medication services, caregivers shall demonstrate appropriate and safe techniques in the provision of medication tasks described in this rule.

(c) The content of the medication training, the dates and length of training, the identity of the qualified individual or qualified entity, evidence of successful return demonstrations, and the instructor's statement that the caregiver has been evaluated to be competent to provide the medication services described in this rule shall be clearly documented for each caregiver and maintained in the agency's personnel records.

(d) An individual with a current Oregon State Board of Nursing medication aide (CMA) certification is exempt from the training requirements in this rule.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315 & 443.340
Hist.: OHD 19-2002, f. 12-4-02, cert. ef. 2-1-03; PH 3-2004(Temp), f. & cert. ef. 2-6-04 thru 7-30-04; PH 22-2004, f. & cert. ef. 6-25-04; PH 14-2007, f. 12-19-07, cert. ef. 1-1-08; PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0080

Nursing Services

(1) If an agency has been approved to provide nursing services, the services must be provided by an Oregon-licensed registered nurse employed by the agency and provided only to a client whose medical condition and health status is stable and predictable. The services shall be provided as requested by a client or a client's representative and shall be in accordance with these rules, the applicable administrative rules of the Oregon State Board of Nursing (OAR chapter 851, division 047), and the service plan.

(2) Delegation of specific tasks of nursing care to unlicensed persons shall be conducted and documented by the registered nurse as required by the Oregon State Board of Nursing administrative rules chapter 851, division 047. A client’s record shall contain documentation that all requirements within those rules have been met, including but not limited to: assessment, instruction, observation, supervision, and re-evaluation.

(3) A client’s service plan shall include current identification of the delegated specific task(s) of nursing care to be provided and shall specify the caregivers to whom the task(s) have been delegated.

(4) The provision of nursing services as described in this rule shall be documented by the individual(s) providing the service(s) or performing the task(s). The documentation shall include the services(s) or task(s) completed, the date and signature of the individual(s) performing the service(s) or task(s), and shall be maintained in accordance with an agency’s policies and procedures.

(5) For all medications and medical treatments managed or administered by an agency under this rule, and for any changes to those medications or medical treatments, a registered nurse shall obtain written or telephone orders from a physician or other legally recognized practitioner.

(a) Written orders shall be signed or confirmed by a physician or practitioner.

(b) Telephone orders shall be immediately recorded, dated, and signed by the registered nurse, and transmitted within 72 hours to the physician or practitioner for confirmation. The orders that have been signed or confirmed by the physician or practitioner shall be incorporated into the client's record within 30 days.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315 & 443.340
Hist.: OHD 19-2002, f. 12-4-02, cert. ef. 2-1-03; PH 3-2004(Temp), f. & cert. ef. 2-6-04 thru 7-30-04; PH 22-2004, f. & cert. ef. 6-25-04; PH 14-2007, f. 12-19-07, cert. ef. 1-1-08; PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0085

Client Records

(1) A client record shall be maintained for every client served by an agency, unless the client receives only housekeeping or support services, and shall be maintained in the agency’s office.

(2) A legible, reproducible client record shall include at least the following:

(a) Identification data;

(b) Referral and intake information;

(c) Start-of-service date;

(d) Screening and disclosure documents and documentation required by these rules;

(e) Clients' rights documentation required by these rules;

(f) All client evaluation and assessment documentation;

(g) Client service plan and updates;

(h) Documentation of all services provided;

(i) Service and financial agreement signed by a client or a client's representative before the initiation of services that specifies the services to be provided in accordance with the service plan, and the costs for those services;

(j) End-of-services date; and

(k) End-of-service summary, including the dates of service and the disposition of the client.

(3) All entries and documents in the record must be recorded in ink, typescript, or computer-generated.

(4) All entries in a client's record must be dated and signed, or otherwise authenticated by the person making the entry. For purposes of this rule, authenticated means verification by the author that an entry in the client record is genuine. Electronic authentication is acceptable as long as there is a process for reconstruction of the information and there are safeguards to prevent unauthorized access to the records.

(5) A client record shall be maintained in a manner that renders it easily retrievable.

(6) Reasonable precautions must be taken to protect a client’s record and information from unauthorized access, fire, water, and theft.

(7) In an effort to coordinate services and care with other providers, including but not limited to, hospice, home health, and family members, as required in OAR 333-536-0055(4)(c), charting notes within a client’s home may be shared, as permitted by law.

(8) Authorized employees of the Division shall be permitted to review client records upon request. Photocopies of the records shall be made upon request.

(9) All clients' records shall be kept for a period of at least seven years after the date of last end-of-service.

(10) Clients' records are the property of the agency.

(11) If an agency changes ownership, all clients' records shall remain in the agency, and it shall be the responsibility of the new owner to protect and maintain these records.

(12) Before an agency terminates its business, the agency shall notify the Division where the clients' records will be stored.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315 & 443.340
Hist.: OHD 19-2002, f. 12-4-02, cert. ef. 2-1-03; PH 3-2004(Temp), f. & cert. ef. 2-6-04 thru 7-30-04; PH 22-2004, f. & cert. ef. 6-25-04; PH 14-2007, f. 12-19-07, cert. ef. 1-1-08; PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0090

Quality Improvement

An agency shall establish and maintain an effective, agency wide quality assessment and performance improvement program that evaluates and monitors the quality, safety and appropriateness of services provided by the agency, and shall include at a minimum:

(1) A method to identify, analyze and correct adverse events;

(2) A method to select and track quality indicators by high risk, high volume, problem prone areas and by the effect on client safety and quality of care;

(3) The quality improvement activities shall be conducted by a committee comprised of, at a minimum, agency administrative staff, an agency caregiver, and if the agency is classified as an intermediate or comprehensive agency, an agency registered nurse; and

(4) Quality improvement activities shall be conducted and documented at least quarterly.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315 & 443.340
Hist.: OHD 19-2002, f. 12-4-02, cert. ef. 2-1-03; PH 3-2004(Temp), f. & cert. ef. 2-6-04 thru 7-30-04; PH 22-2004, f. & cert. ef. 6-25-04; PH 14-2007, f. 12-19-07, cert. ef. 1-1-08; PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0093

Criminal Records Checks

(1) For the purposes of this section, the following definitions apply:

(a) “Direct contact with” means to provide in-home care services and includes meeting in person with a potential or current client to discuss services offered by an agency or other matters relating to the business relationship between an agency and client;

(b) “Disqualifying condition” means a non-criminal personal history issue that makes an individual unsuitable for employment, contracting or volunteering for an agency, including but not limited to discipline by a licensing or certifying agency, or drug or alcohol dependency;

(c) “Subject individual” (SI) means an individual on whom an agency may conduct a criminal records check and from whom an agency may require fingerprints for the purpose of conducting a national criminal records check, including:

(A) An employee or prospective employee;

(B) A temporary worker, volunteer or owner of an agency who has direct contact with an agency client or potential client; and

(C) A prospective temporary worker, or volunteer or owner who may have direct contact with an agency client.

(d) “Vendor” means a researcher or company hired to provide a criminal records check on a subject individual.

(e) “Weighing test” means a process in which an agency considers available information to make a fitness determination when an SI has potentially disqualifying convictions or conditions.

(2) An agency shall conduct a criminal records check before hiring an SI and before allowing an SI to volunteer to provide services on behalf of the agency, if an SI will have direct contact with a client of the agency.

(3) An SI who has or will have direct contact with a recipient of in-home care services may not be employed or volunteer with an agency in any capacity if the criminal records check conducted reveals the SI has been convicted of a crime as described in ORS 443.004(3).

(4) An agency shall have a policy on criminal records check requirements that shall include weighing test actions should the records check screening indicate that an SI has been convicted for crimes against an individual or property other than those identified in ORS 443.004(3). The policy must include the following provisions for performing a weighing test:

(a) The agency shall consider circumstances regarding the nature of potentially disqualifying convictions and conditions including but not limited to:

(A) The details of incidents leading to the charges of potentially disqualifying convictions or resulting in potentially disqualifying conditions;

(B) The age of the SI at the time of the potentially disqualifying convictions or conditions;

(C) Facts that support the convictions or potentially disqualifying conditions; and

(D) Passage of time since commission of the potentially disqualifying convictions or conditions.

(b) Other factors that should be considered when available include but are not limited to:

(A) Other information related to criminal activity including charges, arrests, pending indictments and convictions. Other behavior involving contact with law enforcement may also be reviewed if information is relevant to other criminal records or shows a pattern relevant to criminal history;

(B) Periods of incarceration;

(C) Status of and compliance with parole, post-prison supervision or probation;

(D) Evidence of alcohol or drug issues directly related to criminal activity or potentially disqualifying conditions;

(E) Evidence of other treatment or rehabilitation related to criminal activity or potentially disqualifying conditions;

(F) Likelihood of repetition of criminal behavior or behaviors leading to potentially disqualifying conditions, including but not limited to patterns of criminal activity or behavior;

(G) Changes in circumstances subsequent to the criminal activity or disqualifying conditions including but not limited to:

(i) History of high school, college or other education related accomplishments;

(ii) Work history (employee or volunteer);

(iii) History regarding licensure, certification or training for licensure or certification; or

(iv) Written recommendations from current or past employers;

(H) Indication of the SI’s cooperation, honesty or the making of a false statement during the criminal records check process, including acknowledgment and acceptance of responsibility of criminal activity and potentially disqualifying conditions.

(c) An agency shall consider the relevancy of an SI’s criminal activity or potentially disqualifying conditions to the paid or volunteer position, or to the environment in which the SI will work, especially, but not exclusively:

(A) Access to medication;

(B) Access to clients’ personal information;

(C) Access to vulnerable populations.

(5) An agency shall document the weighing test and place in the employee’s file.

(6) A criminal records check shall be performed by:

(a) The Department of Human Services, Background Check Unit; or

(b) A vendor that:

(A) Is accredited by the National Association of Professional Background Screeners (NAPBS); or

(B) Meets the following criteria:

(i) Has been in business for at least two years;

(ii) Has a current business license and private investigator license, if required in the company’s home state; and

(iii) Maintains an errors and omissions insurance policy in an amount not less than $1 million.

(7) An agency may use the Oregon State Police, Open Records Unit in order to fulfill the state records requirement for a criminal records check, however, an agency must still complete a nationwide check through a qualified vendor.

(8) A criminal records check must include the following:

(a) Name and address history trace;

(b) Verification that the SI’s records have been correctly identified, via date of birth check and Social Security number trace;

(c) A local criminal records check, including city and county records for SI’s places of residence for the last seven years;

(d) A nationwide multijurisdictional criminal database search, including state and federal records;

(e) A nationwide sex offender registry search;

(f) The name and contact information of the vendor who completed the records check;

(g) Arrest, warrant and conviction data, including but not limited to:

(A) Charge(s);

(B) Jurisdiction; and

(C) Date.

(h) Source(s) for data included in the report.

(9) An agency shall perform and document a query of an SI with the National Practitioner Data Bank (NPDB) and the List of Excluded Individuals and Entities (LEIE).

(10) All criminal records checks conducted under this rule shall be documented in writing and made part of the agency’s personnel files.

(11) An agency that has a contract with the Department or Authority for the provision of in-home care services on or after July 1, 2012 and who is subject to the Department’s criminal records check rules does not have to comply with section (12) of this rule.

(12) For an SI hired to work or volunteer for an agency on or after July 6, 2011, an agency shall have until October 1, 2012 to ensure that the agency is in compliance with section (3) of this rule.

(13) On or after July 1, 2012 an agency shall ensure that a criminal records check is performed on an SI every three years from the date of the SI’s last criminal records check in accordance with these rules.

(14) Notwithstanding sections (12) and (13) of this rule, the Division and not the agency shall conduct a criminal records check on an owner or administrator of any agency who is subject to a criminal records check under subsection (1)(c) of this rule. The Division shall conduct a criminal records check:

(a) At the time of application for a person who applies for a license on or after July 1, 2012 and every three years thereafter.

(b) By July 1, 2013 for an agency that is licensed on or before July 1, 2012, and every three years thereafter.

Stat. Auth.: ORS 181.534, 443.004 & 443.340
Stats. Implemented: ORS 443.004 & 443.340
Hist.: PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0095

Waivers

(1) While all agencies are required to maintain continuous compliance with the Division’s rules, these requirements do not prohibit the use of alternative concepts, methods, procedures, techniques, equipment, facilities, personnel qualifications or the conducting of pilot projects or research. Requests for exceptions to the rules must:

(a) Be submitted to the Division in writing;

(b) Identify the specific rule for which an exception is requested;

(c) Indicate the special circumstances relied upon to justify the exception;

(d) Identify what alternatives were considered, if any, and why alternatives (including compliance) were not selected;

(e) Demonstrate that the proposed exception is desirable to maintain or improve the health and safety of the clients, and will not jeopardize client health and safety; and

(f) Identify the proposed duration of the exception.

(2) Upon finding that an agency has satisfied the condition of this rule, the Division may grant an exception.

(3) An agency may implement an exception only after receipt of written approval from the Division.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315 & 443.340
Hist.: OHD 19-2002, f. 12-4-02, cert. ef. 2-1-03; PH 3-2004(Temp), f. & cert. ef. 2-6-04 thru 7-30-04; PH 22-2004, f. & cert. ef. 6-25-04; PH 14-2007, f. 12-19-07, cert. ef. 1-1-08; PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0105

Operating Without a License

If an agency is found to be operating without a valid license, the agency must, within 14 days of the receipt of an injunction obtained by the Division pursuant to ORS 443.327:

(1) Inform its clients that the agency can no longer provide services;

(2) Refund all fees collected from the clients for services not rendered; and

(3) Cease providing services to clients.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315, 443.325, 443.327 & 443.340
Hist.: PH 14-2007, f. 12-19-07, cert. ef. 1-1-08; PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0110

Violations

In addition to non-compliance with any law that governs an in-home care agency, it is a violation to:

(1) Refuse to cooperate with an investigation or survey, including but not limited to failure to permit Division staff access to the agency, its documents or records;

(2) Fail to implement an approved plan of correction;

(3) Refuse or fail to comply with an order issued by the Division;

(4) Refuse or fail to pay a civil penalty;

(5) Fail to comply with rules governing the storage of records following the closure of an agency;

(6) Fail to report suspected abuse of elderly persons as defined in ORS 124.050;

(7) Fail to return a license as provided in OAR 333-536-0035; or

(8) Operate without a license.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315 & 443.340
Hist.: PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0117

Informal Enforcement

(1) If during an investigation or survey Division staff document violations of in-home care licensing rules or laws, the Division may issue a statement of deficiencies that cites the law or rule alleged to have been violated and the facts supporting the allegation.

(2) Upon receipt of a statement of deficiencies, an agency shall be provided an opportunity to dispute the Division’s survey findings but must still comply with sections (3) and (4) of this rule.

(a) If an agency desires an informal conference to dispute the Division’s survey findings, the agency shall advise the Division in writing within 10 business days after receipt of the statement of deficiencies. The written request must include a detailed explanation of why the agency believes the statement of deficiencies is incorrect.

(b) An agency may not seek a delay of any enforcement action against it on the grounds the informal dispute resolution has not been completed.

(c) If an agency is successful in demonstrating the deficiencies should not have been cited, the Division shall reissue the statement of deficiencies, removing such deficiencies and rescinding or modifying any remedies issued for such deficiencies. The reissued statement of deficiencies shall state that it supersedes the previous statement of deficiencies and shall clearly identify the date of the superseded statement of deficiencies.

(3) A signed plan of correction must be mailed to the Division within 10 business days from the date the statement of deficiencies was received by the agency. A signed plan of correction will not be used by the Division as an admission of the violations alleged in the statement of deficiencies.

(4) An agency shall correct all deficiencies within 60 days from the date of the exit conference, unless an extension of time is requested from the Division. A request for such an extension shall be submitted in writing and must accompany the plan of correction.

(5) The Division shall determine if a written plan of correction is acceptable. If the plan of correction is not acceptable to the Division, the Division shall notify the agency owner or administrator in writing:

(a) Identifying which provisions in the plan the Division finds unacceptable;

(b) Citing the reasons the Division finds the provisions unacceptable; and

(c) Requesting that the plan of correction be modified and resubmitted no later than 10 business days from the date notification of non-compliance was received by the agency owner or administrator.

(6) If the agency does not come into compliance by the date of correction reflected on the plan of correction or 60 days from the date of the exit conference, whichever is sooner, the Division may propose to deny, suspend or revoke the agency license or impose civil penalties.

Stat Auth.: ORS 443.340
Stats. Implemented: ORS 443.315, 443.325 & 443.340
Hist.: PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0120

Formal Enforcement

(1) If during an investigation or survey Division staff document a substantial failure to comply with in-home care licensing laws or rules, or if an agency fails to pay a civil penalty imposed under ORS 443.325 and these rules, the Division may issue a Notice of Proposed Suspension or Notice of Proposed Revocation in accordance with ORS 183.411 through 183.470.

(2) The Division may issue a Notice of Imposition of Civil Penalty for violations of in-home care licensing laws.

(3) At any time the Division may issue a Notice of Emergency License Suspension under ORS 183.430(2).

(4) If the Division revokes an agency license, the order shall specify when, if ever, the agency may reapply for a license.

(5) The Division may reissue an agency license that has been suspended or revoked after the Division determines that compliance with these rules has been achieved.

Stat. Auth.: ORS 443.340
Stats. Implemented: ORS 443.315, 443.325 & 443.340
Hist.: PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

333-536-0125

Civil Penalties

(1) An agency that violates in-home care laws or rules, an administrative order, or settlement agreement is subject to the imposition of a civil penalty not to exceed $1,000 per violation and may not total more than $2,000.

(2) An individual who operates an in-home care agency without a license is subject to the imposition of a civil penalty not to exceed $500 a day per violation.

(3) In determining the amount of a civil penalty, the Division shall consider whether:

(a) The Division made repeated attempts to obtain compliance;

(b) The licensee has a history of non-compliance with in-home care licensing laws and rules;

(c) The violation poses a serious risk to the public’s health; and

(d) There are mitigating factors, such as a licensee’s cooperation with an investigation or actions to come into compliance.

(4) The Division shall document its consideration of the factors in section (2) of this rule.

(5) Each day a violation continues is an additional violation.

(6) A civil penalty imposed under this rule shall comply with ORS 183.746.

(7) Failure to comply with ORS 443.305 through 433.355 includes but is not limited to:

(a) Failure to provide a written disclosure statement to the client or the client's representative prior to in-home care services being rendered;

(b) Failure to provide the contracted in-home care services; or

(c) Failure to correct deficiencies identified during a Division inspection or complaint investigation.

Stat. Auth.: ORS 431.262 and 443.340
Stats. Implemented: ORS 443.315, 443.325, 443.327 & 443.340
Hist.: PH 10-2012, f. 6-26-12, cert. ef. 7-1-12

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