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The Oregon Administrative Rules contain OARs filed through September 15, 2014
 
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DEPARTMENT OF HUMAN SERVICES,
ADMINISTRATIVE SERVICES DIVISION AND DIRECTOR'S OFFICE

 

DIVISION 5

CLIENT RIGHTS

Prohibiting Discrimination Against Individuals with Disabilities

407-005-0000

Purpose

These rules (407-005-0000 through 407-005-0030) establish a Department policy of non-discrimination on the basis of disability in accordance with the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973.

Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 409.050
Hist.: DHSD 1-2006, f. & cert. ef. 3-1-06

407-005-0005

Definitions

The following definitions apply to rules 407-005-0000 through 407-005-0030:

(1) "Alternate Format Communication" means printed material converted to a communication style that meets the accessibility needs of individuals with disabilities to achieve "effective communication." The types of alternate format that the Department offers include but are not limited to: large print, Braille, audiotape, electronic format (E-mail attachment, diskette, or CD-ROM) and oral presentation.

(2) "Americans with Disabilities Act" is a comprehensive federal law passed in 1990, which prohibits discrimination on the basis of disability in employment, programs and services provided by state and local governments; goods and services provided by private companies; commercial facilities; telecommunications and transportation. The ADA was crafted upon a body of existing legislation, particularly the Rehabilitation Act of 1973 (Section 504), which states that no recipient of federal financial assistance may discriminate against qualified individuals with disabilities solely because of a disability. (Public Law 101-336)

(3) "An Individual with a Disability" means an individual who:

(a) Has a physical or mental impairment that substantially limits one or more major life activities; or

(b) Has a record or history of such an impairment; or

(c) Is regarded as having such an impairment.

(4) "Auxiliary Aids or Services" mean devices or services that meet the accessibility needs of individuals with hearing, cognitive or speech impairments to achieve "effective communication." The types of auxiliary aids and services that DHS offers include but are not limited to: qualified sign language interpreters, text telephone (TTYs), oral presentation, notetakers and communication through computer keyboarding.

(5) Department means the "Department of Human Services."

(6) "Report of Discrimination" means a report filed with the Department by a client, client applicant or specific class of individuals or their representative(s) alleging an act of discrimination by the Department or a Department contractor, their agents or subcontractors, or a governmental entity under intergovernmental agreement with the Department, regarding delivery of Department services, programs or activities that are subject to Title II of the ADA or Section 504 of the Rehabilitation Act.

(7) "Federal Discrimination Complaint" means a complaint by a client, client applicant or specific class of individuals or their representative(s) filed with a federal agency alleging an act of discrimination by a public entity.

(8) "Qualified Individual with a Disability" means an individual who can meet the essential eligibility requirements for the program, service or activity with or without Reasonable Modification of rules, policies or procedures, or the provision of auxiliary aids and services.

(9) "Direct threat" means a significant risk to the health or safety of others that cannot be eliminated or reduced to an accepted level through the provision of auxiliary aids and services or through reasonably modifying policies, practices or procedures, that person is not considered a qualified individual with a disability and may be excluded from DHS programs services or activities. The determination of direct threat to the health and safety of others must be based on an individualized assessment relying on current medical evidence, or the best available objective evidence that shows:

(a) The nature, duration and severity of the risk;

(b) The probability that a potential injury will actually occur; and

(c) Whether reasonable modifications of policies, practices or procedures will lower or eliminate the risk.

(10) "Reasonable Modifications" means a modification of policies, practices or procedures made to a program or service that allows an individual with a disability to participate equally in the program or benefit from the service.

Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 409.050
Hist.: DHSD 1-2006, f. & cert. ef. 3-1-06

407-005-0010

Non-discrimination

(1) No qualified individual with a disability shall on the basis of disability, be discriminated against, be excluded from participation in, or be denied the benefits of the services, programs or activities of the Department. In providing any benefit or service, DHS may not, directly or through contractual or other arrangements, on the basis of a disability deny a qualified individual the opportunity to participate in a service, program or activity or to receive the benefit or services offered. DHS will not discriminate against a qualified individual with a disability, on the basis of disability in the granting of licenses and certificates.

(2) The Department will provide services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities within the context of the program being administered. For purposes of this section, "Integrated Setting" means a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.

(3) The Department will not require a qualified individual with a disability to participate in services, programs, or activities that are separate or different, despite the existence of permissibly separate or different programs or activities.

(4) The Department will not apply eligibility criteria or standards that screen out or tend to screen out an individual with a disability from fully and equally enjoying any goods or services, unless such criteria can be shown to be necessary for the provision of those goods and services or is determined by the Department to be a legitimate safety requirement.

(5) The Department will ensure each program, service or activity, including public meetings, hearings and events, when viewed in the entirety, is readily accessible to and usable by individuals with disabilities. For purposes of this section, accessible means the ability to approach, enter, operate, participate in, and/or use safely and with dignity by a person with a disability.

(6) Nothing in these rules prohibits the Department from providing benefits or services to individuals with disabilities, or to a particular class of individuals with disabilities, beyond those required by law.

(7) Nothing in these rules requires an individual with a disability to accept a modification, service, opportunity, or benefit provided under these rules that the individual decides not to accept.

(8) The Department will provide auxiliary aids and services or alternate format communication to individuals with disabilities where necessary to ensure an equal opportunity to participate in, and enjoy the benefits of, a service, program or activity, unless it would result in a fundamental alteration of the program or an undue financial or administrative burden. Although the Department shall determine which aid or format, if any, can be provided without fundamental alteration or undue burden, primary consideration should be given to the choice of the requestor.

(9) Except as authorized under specific programs, the Department is not required to provide personal devices, individually prescribed devices, readers for personal use or study, or services of a personal nature.

(10) The Department will not assess a charge or fee to an individual with a disability or any group of individuals with disabilities to cover the costs of measures required to provide the individual with the non-discriminatory treatment required by this policy.

(11) The Department will not deny individuals the opportunity to participate on planning or advisory boards based on their disability.

(12) The Department will not discriminate against individuals that do not have disabilities themselves, but have a known relationship or association with one or more individuals who have disabilities.

(13) The Department's determination of direct threat to the health and safety of others must be based on an individualized assessment relying on current medical evidence, or the best available objective evidence that shows:

(a) The nature, duration and severity of the risk,

(b) The probability that a potential injury will actually occur; and

(c) Whether reasonable modifications of policies, practices or procedures will lower or eliminate the risk.

Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 409.050
Hist.: DHSD 1-2006, f. & cert. ef. 3-1-06

407-005-0015

Illegal Drug Use

(1) Except as provided in subsection (2) of this rule, OAR 407-005-0000 through 407-005-0030 does not prohibit discrimination against an individual based on that individual's current illegal use of drugs.

(2) The Department will not deny health services or services provided in connection with drug rehabilitation to an individual on the basis of that individual's current used of drugs, if the individual is otherwise entitled to such services. However, a drug rehabilitation or treatment program may deny participation to individuals who engage in illegal use of drugs while they are in the program.

(3) A program may adopt reasonable policies related to drug testing that are designed to ensure that an individual who formerly engaged in the illegal use of drugs is not now engaging in the current illegal use of drugs.

(4) A client with a psychoactive substance use disorder resulting from current illegal use of drugs is not considered to have a disability under OAR 407-005-0000 through 407-005-0030 unless the client has a disability due to another condition.

Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 409.050
Hist.: DHSD 1-2006, f. & cert. ef. 3-1-06

407-005-0020

Reasonable Modifications

(1) The Department will make Reasonable Modifications to policies, practices or procedures of a program, services or activity when the modifications are necessary to avoid discrimination based on disability unless the modification would fundamentally alter the nature of the program, service or activity or create an undue administrative or financial burden.

(2) When providing program access to a qualified individual with a disability would cause a fundamental alteration of the program, service or activity or undue financial or administrative burden, the Department will, to the extent the benefit of the program, service or activity can be achieved, provide program access to the point at which the program becomes fundamentally altered or experiences an undue burden.

(3) Alternate Format communication is considered to be within the scope of reasonable modifications.

Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 409.050
Hist.: DHSD 1-2006, f. & cert. ef. 3-1-06

407-005-0025

Requesting a Reasonable Modification

(1) To request a reasonable modification to a Department program, service or activity a client applicant, client or public member must submit to program staff a request for a reasonable modification to the applicable program. Requests may be made verbally or by completing the Request for Reasonable Modification form.

(2) Upon receipt of a request for modification the Department will:

(a) Determine whether additional documentation regarding the claimed disability is needed and request such documentation;

(b) Within fifteen (15) working days of the request or the receipt of additional medical documentation, whichever is later, provide to the requestor notification of approval, approval with alternative modifications or denial of the request for reasonable modification. All denials and approvals with alternative modifications that were not requested will be clearly labeled a "Preliminary Notification Subject to Review."

(c) Ensure that approved modifications occur within a reasonable time.

(3) A "Reasonable Modification Team" means a two person team appointed by program managers that meet to evaluate a Request for Reasonable Modification decision that either denied the request or approved the request but with modifications other than those requested.

(4) This process may include additional communication with the individual requesting the Reasonable Modifications.

(5) Preliminary Notifications will automatically be reviewed by a Reasonable Modification Team that will notify the requestor of the final result of the review within fifteen (15) working days of the preliminary notification or within fifteen working days following receipt of medical or other supporting documentation requested by the Team, whichever is later.

(6) An individual whose request for reasonable modification has been denied or approved with alternative modifications which the individual believes to be inadequate may file a Report of Discrimination with the Department within 60 days of the final result or file a complaint with the appropriate federal regulatory agency within 180 days of the final result.

Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 409.050
Hist.: DHSD 1-2006, f. & cert. ef. 3-1-06

407-005-0030

Report of Discrimination and Other Remedies Available for Alleged Discrimination

(1) A client or client applicant or specific class of individuals or their representative(s) may file with the Department a Report of Discrimination based on disability in the following circumstances:

(a) The final result under OAR 407-005-0025 for a Reasonable Modification Request was denied or was approved with an alternative to the requested modification which is believed to be inadequate;

(b) A request for auxiliary aids and services was denied or was approved with an alternative to the request which is believed to be inadequate;

(c) A request for an alternate format communication was denied or was approved with an alternative to the request which is believed to be inadequate;

(d) Inability to access facilities used for Department programs;

(e) Denial of participation in Department programs and services.

(2) A Report of Discrimination must be filed within 60 calendar days of the date of the alleged discrimination unless otherwise set forth in these rules. In the Food Stamp program, a Report of Discrimination filed more than 60 but less than 180 days of the alleged discrimination will be referred to the Food and Nutrition Service for investigation and is not otherwise covered by this rule.

(3) A Report of Discrimination may be submitted verbally or on a Report of Discrimination Form available at any Department office or by calling any Department office.

(4) The claim of discrimination will be investigated and will include an interview with the complainant and upon conclusion of the investigation, a Letter of Determination shall be issued within (40) calendar days from the receipt of the Discrimination Report.

(5) An individual may appeal the Letter of Determination to the Civil Rights Review Board (CRRB) within thirty (30) calendar days of receiving the Letter of Determination. CRRB means a panel of Department employees appointed by the Director that reviews the decisions made by the Department ADA Coordinator or the Civil Rights Investigator on discrimination complaints filed with the Department.

(6) At the discretion of CRRB, this may include additional communication with the client.

(7) The remedies available under OAR 407-005-0000 through 407-005-0030 are available in addition to other remedies available under state or federal law or Oregon Administrative Rules, except that these remedies must be exhausted where exhaustion is a requirement of seeking remedies in another forum.

Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 409.050
Hist.: DHSD 1-2006, f. & cert. ef. 3-1-06

Customer Service Complaint Process

407-005-0100

Purpose and Scope

(1) These rules (OAR 407-005-0100 through 407-005-0120) describe the process for reporting, investigating, and resolving Department of Human Services' customer or client complaints about staff conduct, or customer service or lack of customer service received from Department personnel or Department contractors.

(2) OAR 407-005-0100 through 407-005-0120 applies to Department personnel and Department contractors:

(a) Department contractors shall have established processes for addressing customer service complaints received from Department customers or clients served by Department contractors that meet or exceed the requirements set forth in these rules (OAR 407-005-0100 through 407-005-0120);

(b) Department contractors must cooperate with the Department's customer service complaint process and investigation if complaints are filed against them with the Department;

(c) Department contractors shall provide a copy of their established process upon request of the Department.

(3) The customer service complaint process described in these rules does not apply to the following situations:

(a) The customer or client is entitled to, or is requesting an administrative or contested case hearing;

(b) The subject matter of the complaint should be or already has been decided by a judge;

(c) The subject matter of the complaint is dissatisfaction or disagreement with a decision subject to review under OAR 582-020-0005 through 582-020-0125 (Vocational Rehabilitation Service Program);

(d) The subject matter of the complaint is subject to review under OAR 413-010-0420 (Review of DHS Child Welfare Decisions):

(A) Adoption committee decision;

(B) Child Protective Services disposition;

(C) Juvenile court ruling.

(e) The subject matter of the complaint is a report of discrimination subject to review under OAR 407-005-0025 through 407-005-0030;

(f) The subject matter of the complaint is subject to review under OAR 410-141-0260 through 410-141-0266 (Oregon Health Plan Prepaid health plan grievance system: PHP complaint and appeal procedures);

(g) The subject matter of the complaint is subject to review under OAR 309-118-0000 through 0050 (Oregon State Hospital patient grievance process); or

(h) Complaints filed anonymously. Anonymous complaints will be reviewed by the Governor's Advocacy Office.

Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 409.010 and 411.977
Hist.: DHSD 7-2007, f. 8-31-07, cert. ef. 9-1-07

407-005-0105

Definitions

The following definitions apply to OAR 407-005-0100 through 407-005-0120:

(1) "Customers or Clients" means any individual or entity having contact with the Department seeking information, services, or reimbursement. This includes, but is not limited to: clients and their family members, informal client supports, advocates, Department staff, taxpayers, public officials, service providers, community based organizations, media, and other interested parties;

(2) "Customer Service Complaint" means a written complaint filed by a customer or client that expresses dissatisfaction with staff conduct, customer service or lack of customer service received from Department personnel or Department contractors;

(3) "Department" means the Department of Human Services.

(4) "Department Contractors" means employees, volunteers, trainees, and other individuals or entities who contract with the Department to provide services.

Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 409.010 and 411.977
Hist.: DHSD 7-2007, f. 8-31-07, cert. ef. 9-1-07

407-005-0110

Customer Service Complaint Procedure

(1) Customers or clients who are dissatisfied with staff conduct or some aspect of customer services received from Department personnel or Department contractors may file a customer service complaint with the Department. Customers or clients verbally expressing dissatisfaction with customer service will be informed by Department staff of the written customer service complaint process.

(2) A customer service complaint must be filed within 60 calendar days from the date of the event that caused the dissatisfaction. Untimely complaints will not be processed.

(3) Written customer service complaints may be filed by:

(a) Postal mail;

(b) In person at any Department office; or

(c) By contacting the Governor's Advocacy Office for assistance in filing a written customer service complaint.

(4) The Department will assist customers or clients in completing a customer service complaint in writing at the request of a customer or client or when Department staff identifies a need for assistance.

(5) Customer service complaints will be considered filed on the day the written complaint is received and date stamped by the Department.

(6) Within five business days of receipt of a written customer service complaint, filed in a Department office, a copy will be sent to the Governor's Advocacy Office.

(7) Within two business days of receipt of a written customer service complaint filed with the Governor's Advocacy Office, the complaint will be reviewed and sent to the appropriate Department office.

(8) The Department will develop a process for tracking filed written customer service complaints. The tracking process will be utilized to assure compliance with these rules.

(9) The Department shall post the customer service complaint process in an easily identifiable format in each local office of the Department.

Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 409.010, 411.977
Hist.: DHSD 7-2007, f. 8-31-07, cert. ef. 9-1-07; DHSD 10-2007, f. 11-30-07, cert. ef. 12-1-07

407-005-0115

Resolution of Customer Service Complaints

(1) Customers, clients, or their representatives may resolve customer service complaints verbally, by contacting the involved individual or a manager, or by filing a written customer service complaint.

(2) Within two business days of receipt of a written customer service complaint, the Department will screen the complaint to determine whether the subject matter of the complaint is subject to review under the customer service complaint process. If the subject matter of the complaint is not subject to review under the customer service complaint process, the Department will immediately notify and redirect the customer or client to the alternative process for addressing the customer's or client's issue.

(3) There are four possible levels of written customer service complaint review. At the first level, the customer service complaint will be reviewed by a first level manager. If the complaint is not resolved at the first level, further review will be conducted by a second or third level manager. The Governor's Advocacy Office will facilitate the final level of review.

(4) For all levels of review and investigation the following processes and timelines apply:

(a) Within five business days of receipt of a written customer service complaint, the reviewing manager will review the customer service complaint. If the written customer service complaint generates no questions, the reviewing manager may begin investigating the matter before contacting the complainant. If there are questions regarding the customer service complaint, the reviewing manager will contact the complainant within five business days of receipt of the written complaint, to discuss the matter before taking any action. The reviewing manager must make the following efforts to contact the complainant:

(A) The reviewing manager must make at least two attempts to contact the complainant, using the complainant's preferred method of communication as indicated in the written complaint. If the complainant does not respond within ten business days from the date of the last contact attempt, the manager may consider the complaint closed;

(B) If the complainant does not specify a preferred method of communication or the reviewing manager cannot reach the complainant by telephone, the reviewing manager will communicate to the complainant, in writing, requesting that the complainant contact the manager.

(b) If contacting the complainant to gather additional information is required, the reviewing manager will begin an investigation regarding the issues of the customer service complaint within five business days from the date of contact with the complainant. If the outcome cannot be determined within ten business days from the date of contact with the complainant, the manager will notify the complainant of the estimated extension of time needed:

(A) A reviewing manager will notify the complainant of the outcome of the investigation in a manner that complies with all Department confidentiality and privacy rules;

(B) If the complainant indicates that the outcome is satisfactory, the reviewing manager will close the complaint;

(C) At levels one through three, the reviewing manager will inform the complainant that if the complainant is dissatisfied with the outcome, the complainant may request the next level of review within five days of the date of notification of the outcome. If the complainant requests the next level of review, the reviewing manager will immediately forward the customer service complaint to the next reviewing level manager or the Governor's Advocacy Office.

(c) At the fourth level, the Governor's Advocacy Office will facilitate and issue a final determination and the complainant will have no further review rights under the Department's customer service complaint process.

(5) All customer service complaints, both resolved and unresolved, will be sent to the Governor's Advocacy Office for review and follow-up. Follow-up may include contacting the complainant by telephone or in writing.

(6) These customer service complaint procedures shall be administered in such a manner as to protect the confidentiality of client and personnel records.

(7) The Department will maintain records of all customer service complaints received, including responses and supporting documentation, for five years from the date the customer service complaint is closed.

(8) The Department shall compile a monthly report summarizing each customer service complaint filed. The report will be available to the public upon request. Customer service complaints related to Children, Adults and Families Division, Self-Sufficiency program issues will be provided monthly to the Family Services Review Commission.

Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 411.977
Hist.: DHSD 7-2007, f. 8-31-07, cert. ef. 9-1-07

407-005-0120

Retaliation Prohibited

No individual filing a customer service complaint or otherwise participating in any of the actions authorized under OAR 407-005-0100 through 407-005-0120 shall be subject to reprimand or retaliatory action by any division or employee of the Department for having filed a customer service complaint.

Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 409.010 and 411.977
Hist.: DHSD 7-2007, f. 8-31-07, cert. ef. 9-1-07

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