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The Oregon Administrative Rules contain OARs filed through June 15, 2014
 
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DEPARTMENT OF HUMAN SERVICES,
AGING AND PEOPLE WITH DISABILITIES AND DEVELOPMENTAL DISABILITIES

 

DIVISION 1

ADMINISTRATIVE RULEMAKING AND MEDICAID
AND LONG TERM CARE (MLTCQRAC) NOTICE REQUIREMENTS

Medicaid Long Term Care Quality and Reimbursement Advisory Council

[ED. NOTE: OAR 411-001-0000 relating to the Notice Rule for Rulemaking, was repealed effective 6-1-06. The Department will adhere to the Procedural Rules in 407-001.]

411-001-0100

Purpose

(1) The purpose of the rules in OAR chapter 411, division 001 is to establish procedures for the operation of the Medicaid Long Term Care Quality and Reimbursement Advisory Council (Council).

(2) The Council was established by the 1995 Legislative Assembly and consists of 12 stakeholders including the Long Term Care Ombudsman, consumers, advocates, and providers. Council appointments are made by the Governor, the President of the Senate, the Speaker of the House, the Governor's Commission on Senior Services, and the Oregon Disabilities Commission as described in ORS 410.550.

(3) The Council is directed to advise the Department of Human Services or the Oregon Health Authority on changes or modifications to the Medicaid reimbursement system and the adverse and positive effects of the changes or modifications on the quality of long term care and community-based services and reimbursement for long term care and community-based services.

Stat. Auth.: ORS 410.070, 410.555
Stats. Implemented: ORS 410.550 - 410.555
Hist.: SSD 7-1996, f. 8-30-96, cert. ef. 9-1-96; SPD 18-2006, f. 5-12-06, cert. ef. 6-1-06; SPD 18-2009, f. 12-23-09, cert. ef. 1-1-10; SPD 49-2013, f. 12-17-13, cert. ef. 1-1-14

411-001-0110

Definitions

(1) "Authority" means the Oregon Health Authority.

(2) "Council" means the Medicaid Long Term Care Quality and Reimbursement Advisory Council.

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

(4) "Medicaid Reimbursement System" means the method or methodology associated with reimbursing providers of long term care and community-based services under the Department. The Medicaid reimbursement system does not include rates established by collective bargaining, rates established by actuarial calculations, or rate increases that have been approved and funded by the Legislature.

(5) "Quality" means the degree to which long term care systems, services, and supplies for individuals and populations increase the likelihood of positive outcomes.

(6) "These Rules" mean the rules in OAR chapter 411, division 001.

Stat. Auth.: ORS 410.070 & 410.555
Stats. Implemented: ORS 410.550–410.555
Hist.: SSD 7-1996, f. 8-30-96, cert. ef. 9-1-96; SPD 18-2006, f. 5-12-06, cert. ef. 6-1-06; SPD 18-2009, f. 12-23-09, cert. ef. 1-1-10; SPD 49-2013, f. 12-17-13, cert. ef. 1-1-14

411-001-0115

Council Administration

Council By-Laws supplement ORS 410.550 to 410.555 and these rules.

Stat. Auth.: ORS 410.070, 410.555
Stats. Implemented: ORS 410.550 - 410.555
Hist.: SPD 18-2009, f. 12-23-09, cert. ef. 1-1-10

411-001-0118

Council Scope

(1) At the beginning of each legislative session, the Council shall review the Governor's Recommended Budget for the Department. The Council may submit a recommendation in support or opposition of the Governor's Recommended Budget.

(2) The Department or Authority shall submit any proposed change or modification to the Medicaid reimbursement system to the Council for the Council's review and recommendation.

(3) Upon review of any proposed change or modification under section (2) of this rule, the Council shall issue a written advisory recommendation to the Department or Authority as described in OAR 411-001-0120.

(4) Prior to implementing any change or modification to the Medicaid reimbursement system, the Department or Authority shall submit the Council's written recommendation to the Legislative Assembly or to the Emergency Board if the Legislative Assembly is not in session.

(5) If the Council has a disagreement with any change or modification to the Medicaid reimbursement system, the Department or Authority shall obtain the approval of the Legislative Assembly or the Emergency Board if the Legislative Assembly is not in session, before instituting the proposed change or modification. A proposed change or modification with an estimated fiscal impact of $100,000 or less is exempt from this provision.

(6) The Department shall inform the Council of all rate changes within the Department's Aging and People with Disabilities Programs, including rates established by collective bargaining, rates established by actuarial calculations, and rate increases that have been approved and funded by the Legislature.

(7) The Council may review the Department's strategic initiatives in order to assess the likelihood of increased quality for individuals served by the Department.

Stat. Auth.: ORS 410.070 & 410.555
Stats. Implemented: ORS 410.550–410.555
Hist.: SPD 18-2009, f. 12-23-09, cert. ef. 1-1-10; SPD 49-2013, f. 12-17-13, cert. ef. 1-1-14

411-001-0120

Council Operation

(1) Within 60 calendar days after receipt from the Department or Authority of any proposed change or modification to the Medicaid reimbursement system, the Council shall issue a written advisory recommendation to the Department or Authority. The 60-day period begins the day following delivery to the chairperson of the Council if a proposed change or modification is faxed, hand-delivered, or e-mailed. Otherwise, the 60-day period begins the third day after the date of mailing first class.

(2) A written advisory recommendation issued by the Council must state:

(a) Whether the Council supports or opposes the proposed change or modification;

(b) Whether the Council concludes that the proposed change or modification shall have an adverse or positive effect on the quality of long term care and community-based services provided under the Oregon Medicaid program; and

(c) The basis for the Council's recommendation, which must include:

(A) The reason for the Council's position;

(B) A list of the principal documents, reports, or studies, if any, relied upon in considering the proposed change or modification; and

(C) Other information deemed appropriate by the Council.

(3) Timeline for written recommendation.

(a) Notwithstanding section (1) of this rule, the Department or Authority may shorten the time within which the Council must issue a written recommendation if the Department or Authority decides to adopt a proposed change or modification by temporary rule and if the Department or Authority prepares a written statement in which the Department or Authority:

(A) Finds that failure to make proposed changes or modifications promptly is likely to result in serious prejudice to the public interest or to the interests of individuals receiving Department or Authority services, providers of long term care or community-based services, or other affected parties;

(B) Specifies reasons why the Department or Authority's failure to act promptly is likely to result in serious prejudice to those interests;

(C) States the need for the proposed change or modification and how the change or modification is intended to meet the need;

(D) Lists the principal documents, reports, or studies, if any, prepared or relied upon by the Department or Authority in evaluating the need for the proposed change or modification; and

(E) Cites the legal authority relied upon and bearing upon the adoption, amendment, or suspension of the rule if the proposed change or modification is to be made by administrative rule.

(b) However, the Department or Authority may not shorten the time for written recommendation to less than five business days.

(4) If the Department or Authority intends to adopt an administrative rule that directly or indirectly proposes a change or modification to the Medicaid reimbursement system, the Department or Authority may not proceed with notice requirements provided for in ORS 183.335 until the Department or Authority has received the Council's written recommendation as described in section (2) or (3) of this rule.

Stat. Auth.: ORS 410.070 & 410.555
Stats. Implemented: ORS 410.550 - 410.555
Hist.: SSD 7-1996, f. 8-30-96, cert. ef. 9-1-96; SPD 18-2006, f. 5-12-06, cert. ef. 6-1-06; SPD 18-2009, f. 12-23-09, cert. ef. 1-1-10; SPD 49-2013, f. 12-17-13, cert. ef. 1-1-14; APD 13-2014(Temp), f. 5-8-14, cert. ef. 5-9-14 thru 11-5-14

411-001-0500

Contested Case Hearings

(1) OAR 411-001-0500, 411-001-0510, and 411-001-0520 apply to all contested case hearing requests authorized under OAR chapter 411, except to the extent that:

(a) There is another conflicting rule in OAR chapter 411 that applies to the hearing request; or

(b) There is a rule in OAR chapter 411 that applies a conflicting rule in OAR chapter 461, division 025 to the hearing request.

(2) The Department of Human Services (Department) conducts contested case hearings in accordance with the Attorney General's model rules in OAR chapter 137, division 003, except to the extent that Department rules are permitted to and provide for different procedures.

(3) The Department may not provide the telephone number and addresses of a witness if the Department has a reasonable concern that the release of information may affect the safety of the witness.

(4) The Department’s contested case hearings based on hearing requests authorized in OAR chapter 411 are not open to the public and are closed to nonparticipants, except nonparticipants may attend subject to the consent of the parties and the Department, as well as applicable confidentiality laws.

(5) The Department has adopted the exceptions to the Attorney General's model rules set out in section (3) of this rule and OAR 411-001-0510(6) due to caseload volume and because these model rule discovery procedures would unduly complicate or interfere with the hearing process.

Stat. Auth: ORS 409.050
Stats. Implemented: ORS 409.010
Hist.: SPD 14-2012(Temp), f. & cert. ef. 10-5-12 thru 4-3-13; SPD 6-2013, f. & cert. ef. 4-2-13

411-001-0510

Lay Representation in Contested Case Hearings

(1) Subject to the approval of the Attorney General, an officer or employee of the Department of Human Services (Department) is authorized to appear on behalf of the Department in the following types of hearings conducted by the Office of Administrative Hearings:

(a) Eligibility for public assistance services or other benefits available through a waiver or state plan administered by the Department’s Aging and People with Disabilities (APD) or Office of Developmental Disability Services (ODDS), including but not limited to the level or amount of benefits, and effective date;

(b) Eligibility for medical benefits, the level and amount of benefits, and effective date;

(c) Eligibility for Supplemental Nutrition Assistance Program (SNAP), the level and amount of benefits, and effective date, and the termination, suspension, reduction, or denial of benefits.

(d) Client overpayments and intentional program violations related to public assistance or medical assistance, SNAP, waivered or state plan service benefits or medical benefits;

(e) Medical assistance, including but not limited to eligibility for services available through a waiver or state plan for medical assistance, the level and amount of services or benefits, and the termination, suspension, reduction, or denial of medical assistance services, prior authorizations, or medical management decisions; and

(f) Consumer-employed provider matters, including but not limited to provider enrollment or denial of enrollment, overpayment determinations, audits, and sanctions; and

(g) Provider enrollment or denial of enrollment, provider overpayments, audits, and audit sanctions.

(2) A Department officer or employee acting as the Department’s representative may not make legal argument on behalf of the Department.

(a) "Legal argument" includes arguments on:

(A) The jurisdiction of the Department to hear the contested case;

(B) The constitutionality of a statute or rule or the application of a constitutional requirement to the Department; and

(C) The application of court precedent to the facts of the particular contested case proceeding.

(b) "Legal argument" does not include presentation of motions, evidence, examination and cross-examination of witnesses, or presentation of factual arguments or arguments on:

(A) The application of the statutes or rules to the facts in the contested case;

(B) Comparison of prior actions of the Department in handling similar situations;

(C) The literal meaning of the statutes or rules directly applicable to the issues in the contested case;

(D) The admissibility of evidence; and

(E) The correctness of procedures being followed in the contested case hearing.

(3) When an officer or employee appears on behalf of the Department, the administrative law judge shall advise the Department's representative of the manner in which objections may be made and matters preserved for appeal. Such advice is of a procedural nature and does not change applicable law on waiver or the duty to make timely objection.

(4) If the administrative law judge determines that statements or objections made by the Department representative appearing under section (1) of this rule involve legal argument as defined in this rule, the administrative law judge shall provide reasonable opportunity for the Department representative to consult the Attorney General and permit the Attorney General to present argument at the hearing or to file written legal argument within a reasonable time after conclusion of the hearing.

(5) The Department is subject to the Code of Conduct for Non-Attorney Representatives at Administrative Hearings, which is maintained by the Oregon Department of Justice and available at http://www.doj.state.or.us. A Department representative appearing under section (1) of this rule must read and be familiar with the Code of Conduct for Non-Attorney Representatives at Administrative Hearings.

(6) When a Department officer or employee represents the Department in a contested case hearing, requests for admission and written interrogatories are not permitted.

Stat. Auth: ORS 409.050
Stats Implemented: ORS 183.452 & 409.010
Hist.: SPD 6-2013, f. & cert. ef. 4-2-13; SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13; APD 15-2014, f. & cert. ef. 6-4-14

411-001-0520

Late Contested Case Hearing Requests

(1) When the Department of Human Services (Department) receives a completed hearing request that is not filed within the timeframe required by the applicable rule in OAR chapter 411 but is filed no later than the deadlines set out in section (2) of this rule:

(a) The Department shall refer the hearing request to the Office of Administrative Hearings for a contested case hearing on the merits of the Department's action described in the notice when:

(A) The Department finds that the claimant and claimant's representative did not receive the notice and did not have actual knowledge of the notice; or

(B) The Department finds good cause that the claimant did not meet the timeframe required due to excusable mistake, surprise, excusable neglect (which may include neglect due to significant cognitive or health issues), circumstances beyond the claimant’s control, reasonable reliance on the statement of a Department employee or an adverse provider relating to procedural requirements, or due to fraud, misrepresentation, or other misconduct of the Department or a party adverse to the claimant.

(b) The Department refers the request for a hearing to the Office of Administrative Hearings for a contested case proceeding to determine whether the claimant is entitled to a hearing on the merits if there is a dispute between the claimant and the Department about either of the following paragraphs.

(A) The claimant or claimant's representative received the notice or had actual knowledge of the notice. At the hearing, the Department must show that the claimant or claimant's representative had actual knowledge of the notice or that the Department mailed or electronically mailed the notice to the correct address of the claimant or claimant's representative, as provided to the Department.

(B) The claimant has established good cause for a contested case hearing on the merits under paragraph (a)(B) of this section.

(c) The Department may only dismiss such a request for hearing as untimely without a referral to the Office of Administrative Hearings if the following requirements are met:

(A) The undisputed facts show that the claimant does not qualify for a hearing under this section; and

(B) The notice was served personally or by registered or certified mail.

(2) The Department shall consider whether a late hearing request meets the late request criteria set out in section (1) of this rule:

(a) When the hearing request is received up to 120 days after a notice became a final order by default if no provider is a party to the contested case.

(b) When the hearing request is received up to 60 days after a notice became a final order by default if at least one provider is a party to the contested case.

(3) Unless required otherwise by the Servicemembers Civil Relief Act, the Department may dismiss a request for hearing as untimely if the Department receives a completed hearing request after the applicable deadline in section (2) of this rule.

Stat. Auth.: ORS 409.050 & 411.103
Stats. Implemented: ORS 409.010 & 411.103
Hist.: SPD 6-2013, f. & cert. ef. 4-2-13; SPD 12-2013, f. 5-31-13, cert. ef. 6-1-13

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