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The Oregon Administrative Rules contain OARs filed through July 15, 2016
 
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DEPARTMENT OF HUMAN SERVICES,
AGING AND PEOPLE WITH DISABILITIES AND DEVELOPMENTAL DISABILITIES

 

DIVISION 340

SUPPORT SERVICES FOR ADULTS WITH DEVELOPMENTAL DISABILITIES

411-340-0010

Statement of Purpose

(1) The rules in OAR chapter 411, division 340 prescribe standards, responsibilities, and procedures for Support Service Brokerages. Support Service Brokerages assist adults with intellectual or developmental disabilities to identify and address support needs so that an adult with an intellectual or developmental disability may live in his or her own home or in the family home.

(2) Support Service Brokerages certified under these rules are expected to identify, strengthen, expand, and where required, supplement private, public, formal, and informal support available to adults with intellectual or developmental disabilities so that an adult with an intellectual or developmental disability may exercise self-determination in the design and direction of his or her life.

Stat. Auth.: ORS 409.050, 427.402, & 430.662
Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695
Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; MHD 4-2003(Temp); f. & cert. ef. 7-1-03 thru 12-27-03; Renumbered from 309-041-1750, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13; APD 15-2016, f. 6-28-16, cert. ef. 6-29-16

411-340-0020

Definitions and Acronyms

Unless the context indicates otherwise, the following definitions and the definitions in OAR 411-317-0000 apply to the rules in OAR chapter 411, division 340:

(1) "Brokerage" means an entity or distinct operating unit within an existing entity that uses the principles of self-determination to perform the functions associated with planning and implementation of brokerage and support services for individuals with intellectual or developmental disabilities.

(2) "Brokerage Director" means the Director of a publicly or privately-operated Brokerage, who is responsible for administration and provision of services according to these rules, or the designee of the Brokerage Director.

(3) "CDDP" means "Community Developmental Disabilities Program".

(4) "Certificate" means the document issued by the Department to a Brokerage that certifies the Brokerage is eligible to receive state funds for the provision of services under these rules.

(5) "Geographic Service Area" means the area within the state of Oregon where a case management entity is approved to provide developmental disabilities services.

(6) "Policy Oversight Group" means the group that meets the requirements of OAR 411-340-0150 that is formed to provide individual-based leadership and advice to each Brokerage regarding issues, such as development of policy, evaluation of services, and use of resources.

(7) "Support Services" mean the case management services provided by a personal agent employed by a Brokerage and the services authorized by the Brokerage.

(8) "These Rules" mean the rules in OAR chapter 411, division 340.

Stat. Auth.: ORS 409.050, 427.402 & 430.662
Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695
Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; MHD 4-2003(Temp); f. & cert. ef. 7-1-03 thru 12-27-03; Renumbered from 309-041-1760, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 38-2004(Temp), f. 12-30-04, cert. ef. 1-1-05 thru 6-30-05; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 17-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 21-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-29-08; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 5-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 27-2011, f. & cert. ef. 12-28-11; SPD 3-2013(Temp), f. 3-20-13, cert. ef. 4-1-13 thru 9-28-13; SPD 30-2013(Temp), f. & cert. ef. 7-2-13 thru 9-28-13; SPD 31-2013, f. 7-22-13, cert. ef. 8-1-13; SPD 32-2013(Temp), f. 7-22-13, cert. ef. 8-1-13 thru 12-28-13; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13; APD 26-2014(Temp), f. & cert. ef. 7-1-14 thru 12-28-14; APD 44-2014, f. 12-26-14, cert. ef. 12-28-14; APD 32-2015(Temp), f. 12-31-15, cert. ef. 1-1-16 thru 6-28-16; APD 15-2016, f. 6-28-16, cert. ef. 6-29-16

411-340-0030

Certification of Support Service Brokerages

(1) CERTIFICATE REQUIRED.

(a) No person or governmental unit acting individually or jointly with any other person or governmental unit may establish, conduct, maintain, manage, or operate a Brokerage without being certified by the Department under this rule.

(b) Certificates are not transferable or assignable and are issued only for the Brokerage and people or governmental units named in the application.

(c) Certificates issued on or after January 1, 2016 are effective for a maximum of two years.

(d) The Department shall conduct a review of the Brokerage prior to the issuance of a certificate.

(2) CERTIFICATION. A Brokerage must apply for an initial certificate and for a certificate renewal.

(a) The application must be on a form provided by the Department and must include all information requested by the Department.

(b) The applicant requesting certification as a Brokerage must identify the maximum number of individuals to be served and the geographic service area.

(c) To renew certification, the Brokerage must make application at least 30 days, but not more than 120 days, prior to the expiration date of the existing certificate. On renewal of certification, no increase in the maximum number of individuals to be served by the Brokerage may be certified unless specifically approved by the Department.

(d) Application for renewal must be filed no more than 120 days prior to the expiration date of the existing certificate and extends the effective date of the existing certificate until the Department takes action upon the application for renewal.

(e) Failure to disclose requested information on the application or providing incomplete or incorrect information on the application may result in denial, revocation, or refusal to renew the certificate.

(f) Prior to issuance or renewal of the certificate, the applicant must demonstrate to the satisfaction of the Department that the applicant is capable of providing services identified in a manner consistent with the requirements of these rules.

(3) CERTIFICATION EXPIRATION, TERMINATION OF OPERATIONS, OR CERTIFICATE RETURN.

(a) Unless revoked, suspended, or terminated earlier, each certificate to operate a Brokerage expires on the expiration date specified on the certificate.

(b) If a certified Brokerage is discontinued, the certificate automatically terminates on the date operation is discontinued.

(4) CHANGE OF OWNERSHIP, LEGAL ENTITY, LEGAL STATUS, OR MANAGEMENT CORPORATION. The Brokerage must notify the Department in writing of any pending action resulting in a five percent or more change in ownership and of any pending change in the legal entity, legal status, or management corporation of the Brokerage.

(5) NEW CERTIFICATE REQUIRED. A new certificate for a Brokerage is required upon change in the ownership, legal entity, or legal status of a Brokerage. The Brokerage must submit a certificate application at least 30 days prior to change in ownership, legal entity, or legal status.

(6) CERTIFICATE DENIAL, REVOCATION, OR REFUSAL TO RENEW. The Department may deny, revoke, or refuse to renew a certificate when the Department finds the Brokerage, the Brokerage Director, or any person holding five percent or greater financial interest in the Brokerage:

(a) Demonstrates substantial failure to comply with these rules such that the health, safety, or welfare of individuals is jeopardized and the Brokerage fails to correct the noncompliance within 30 calendar days of receipt of written notice of non-compliance;

(b) Has demonstrated, during two inspections within a six year period, a substantial failure to comply with these rules such that the health, safety, or welfare of individuals is jeopardized. For the purpose of this rule, "inspection" means an on-site review of the service site by the Department for the purpose of investigation or certification;

(c) Has been convicted of a felony or any crime as described in OAR 407-007-0275;

(d) Has been convicted of a misdemeanor associated with the operation of a Brokerage;

(e) Falsifies information required by the Department to be maintained or submitted regarding services of individuals, program finances, or individuals' funds;

(f) Has been found to have permitted, aided, or abetted any illegal act that has had significant adverse impact on individual health, safety, or welfare; or

(g) Has been placed on the list of excluded or debarred providers by the Office of Inspector General (http://exclusions.oig.hhs.gov/).

(7) NOTICE OF CERTIFICATE DENIAL, REVOCATION, OR REFUSAL TO RENEW. Following a Department finding that there is a substantial failure to comply with these rules such that the health, safety, or welfare of individuals is jeopardized, or that one or more of the events listed in section (6) of this rule has occurred, the Department may issue a notice of certificate revocation, denial, or refusal to renew.

(8) IMMEDIATE SUSPENSION OF CERTIFICATE. When the Department finds a serious and immediate threat to individual health and safety and sets forth the specific reasons for such findings, the Department may, by written notice to the certificate holder, immediately suspend a certificate without a pre-suspension hearing and the Brokerage may not continue operation.

(9) HEARING. An applicant for a certificate or a certificate holder may request a hearing pursuant to the contested case provisions of ORS chapter 183 upon written notice from the Department of denial, suspension, revocation, or refusal to renew a certificate. In addition to, or in lieu of a hearing, the applicant or certificate holder may request an administrative review by the Director of the Department. An administrative review does not preclude the right of the applicant or certificate holder to a hearing.

(a) The applicant or certificate holder must request a hearing within 60 days of receipt of written notice by the Department of denial, suspension, revocation, or refusal to renew a certificate. The request for a hearing must include an admission or denial of each factual matter alleged by the Department and must affirmatively allege a short plain statement of each relevant, affirmative defense the applicant or certificate holder may have.

(b) In the event of a suspension pursuant to section (8) of this rule and during the first 30 days after the suspension of a certificate, the Brokerage may submit a written request to the Department for an administrative review. The Department shall conduct the review within 10 days after receipt of the request for an administrative review. Any review requested after the end of the 30-day period following certificate suspension is treated as a request for a hearing under subsection (a) of this section. If following the administrative review the suspension is upheld, the Brokerage may request a hearing pursuant to the contested case provisions of ORS chapter 183.

Stat. Auth.: ORS 409.050, 427.402, 430.662
Stats. Implemented: ORS 427.005, 427.007, 427.400-410, 430.610, 430.620, 430.662-695
Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; Renumbered from 309-041-1770, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 17-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 5-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 25-2010(Temp), f. & cert. ef. 11-17-10 thru 5-16-11; SPD 10-2011, f. & cert. ef. 5-5-11; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13; APD 32-2015(Temp), f. 12-31-15, cert. ef. 1-1-16 thru 6-28-16; APD 15-2016, f. 6-28-16, cert. ef. 6-29-16

411-340-0040

Abuse and Unusual Incidents

(1) ABUSE PROHIBITED. No individual as defined in OAR 411-340-0020 shall be abused nor shall any employee, staff, or volunteer of a Brokerage condone abuse.

(a) Brokerages must have in place appropriate and adequate disciplinary policies and procedures to address instances when a staff member has been identified as an accused person in an abuse investigation as well as when the allegation of abuse has been substantiated.

(b) All employees of a Brokerage are mandatory reporters. The Brokerage must:

(A) Notify all employees of mandatory reporting status at least annually on forms provided by the Department; and

(B) Provide all employees with a Department-produced card regarding abuse reporting status and abuse reporting.

(2) INCIDENT REPORTS.

(a) A Brokerage must prepare an incident report for instances of potential or suspected abuse or an unusual incident, involving an individual and a Brokerage employee. The incident report must be placed in the record of the individual and must include:

(A) Conditions prior to or leading to the potential or suspected abuse or unusual incident;

(B) A description of the potential or suspected abuse or unusual incident;

(C) Staff response at the time; and

(D) Review by the Brokerage administration and follow-up to be taken to prevent recurrence of the potential or suspected abuse or unusual incident.

(b) A Brokerage must send copies of all incident reports involving potential or suspected abuse that occurs while an individual is receiving brokerage or support services to the CDDP.

(3) IMMEDIATE NOTIFICATION

(a) The brokerage must immediately report to the CDDP, any incident or allegation of potential or suspected abuse falling within the scope of OAR 407-045-0260.

(A) When an abuse investigation has been initiated, the CDDP provides notice according to OAR 407-045-0290.

(B) When an abuse investigation has been completed, the CDDP provides notice of the outcome of the investigation according to OAR 407-045-0320.

(b) In the case of emergency overnight hospitalization due to illness or injury to an individual, the Brokerage must immediately notify the legal representative, parent, next of kin, designated contact person, or other significant person of the individual (as applicable).

(c) In the event of the death of an individual, the Brokerage must immediately notify:

(A) The Office of Developmental Disabilities Services;

(B) The legal representative, parent, next of kin, designated contact person, or other significant person of the individual (as applicable); and

(C) The CDDP.

Stat. Auth.: ORS 409.050, 427.402 & 430.662
Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695
Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; MHD 4-2003(Temp); f. & cert. ef. 7-1-03 thru 12-27-03; Renumbered from 309-041-1780, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 17-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 5-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 25-2010(Temp), f. & cert. ef. 11-17-10 thru 5-16-11; SPD 10-2011, f. & cert. ef. 5-5-11; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13; APD 15-2016, f. 6-28-16, cert. ef. 6-29-16

411-340-0050

Inspections and Investigations

(1) Brokerages certified under these rules must allow the following types of investigations and inspections:

(a) Quality assurance and on-site inspections;

(b) Complaint investigations; and

(c) Abuse investigations.

(2) The Department, CDDP, Oregon Health Authority, or other appropriate authority performs all inspections and investigations.

(a) Any inspection or investigation may be unannounced.

(b) The Department may review the implementation of these rules as needed to ensure compliance. Following a Department review, the Department issues a report to the Brokerage identifying areas of compliance and areas in need of improvement.

(c) The Department or the CDDP conducts abuse investigations as set forth in OAR 407-045-0250 to OAR 407-045-0360 and completes abuse investigation and protective services reports according to OAR 407-045-0320. Upon completion of the abuse investigation and protective services report and in accordance with OAR 407-045-0330, the Department or CDDP provides the sections of the report that are public records and not exempt from disclosure under the public records law.

(3) All documentation and written reports required by this rule and other relevant administrative rules must be:

(a) Open to inspection and investigation by the Department, CDDP, Oregon Health Authority, or other appropriate authority; and

(b) Submitted within the time allotted.

(4) If, following a Department review, the Brokerage is not in substantial compliance with these rules, the Brokerage must respond to a plan of improvement within 45 days of the review report being issued, or in a time specified by the Department. The Department may conduct additional reviews as necessary to ensure improvement measures have been achieved. The Department may offer, or the Brokerage may request, technical assistance or training.

(5) ABUSE INVESTIGATIONS.

(a) When abuse is alleged or death of an individual has occurred and a law enforcement agency, the Department, or CDDP has determined to initiate an investigation, the Brokerage may not conduct an internal investigation without prior authorization from the Department. For the purposes of this rule, an "internal investigation" is defined as:

(A) Conducting interviews with the alleged victim, witness, the accused person, or any other person who may have knowledge of the facts of the abuse allegation or related circumstances;

(B) Reviewing evidence relevant to the abuse allegation, other than the initial report; or

(C) Any other actions beyond the initial actions of determining:

(i) If there is reasonable cause to believe that abuse has occurred;

(ii) If the alleged victim is in danger or in need of immediate protective services;

(iii) If there is reason to believe that a crime has been committed; or

(iv) What, if any, immediate personnel actions must be taken.

(b) Upon completion of the abuse investigation by the Department, CDDP, or a law enforcement agency, a Brokerage may conduct an investigation without further Department approval to determine if any other personnel actions are necessary.

Stat. Auth.: ORS 409.050, 427.402 & 430.662
Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695
Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; Renumbered from 309-041-1790, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 17-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 5-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13; APD 44-2014, f. 12-26-14, cert. ef. 12-28-14; APD 15-2016, f. 6-28-16, cert. ef. 6-29-16

411-340-0060

Complaints, Notification of Planned Action, and Hearings

(1) COMPLAINTS.

(a) Complaints must be addressed in accordance with OAR 411-318-0015.

(b) The Brokerages must have and implement written policies and procedures for individual complaints in accordance with OAR 411-318-0015.

(c) Upon entry and request and annually thereafter, the policy and procedures for complaints must be explained and provided to an individual and the legal or designated representative of the individual.

(2) NOTIFICATION OF PLANNED ACTION. In the event that a developmental disabilities service is denied, reduced, suspended, or terminated, a written advance Notification of Planned Action (form SDS 0947) must be provided as described in OAR 411-318-0020.

(3) HEARINGS.

(a) Hearings must be addressed in accordance with ORS chapter 183 and OAR 411-318-0025.

(b) An individual may request a hearing as provided in ORS chapter 183 and OAR 411-318-0025.

(c) Upon entry and request and annually thereafter, a notice of hearing rights and the policy and procedures for hearings must be explained and provided to an individual and the legal or designated representative of the individual (as applicable).

Stat. Auth.: ORS 409.050, 427.402 & 430.662
Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695
Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; MHD 4-2003(Temp); f. & cert. ef. 7-1-03 thru 12-27-03; Renumbered from 309-041-1800, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 17-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 21-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-29-08; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 25-2010(Temp), f. & cert. ef. 11-17-10 thru 5-16-11; (Temp) Repealed by SPD 10, 2011, f. & cert. ef. 5-5-11; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13; APD 26-2014(Temp), f. & cert. ef. 7-1-14 thru 12-28-14; APD 44-2014, f. 12-26-14, cert. ef. 12-28-14; APD 15-2016, f. 6-28-16, cert. ef. 6-29-16

411-340-0070

Personnel Policies and Practices

(1) Brokerages must maintain up-to-date written position descriptions for all staff as well as a file, available to the Department, the Oregon Health Authority, or other appropriate authority for inspection that includes written documentation of the following for each staff:

(a) Reference checks and confirmation of qualifications prior to hire;

(b) Written documentation of an approved background check completed by the Department in accordance with OAR 407-007-0200 to 407-007-0370;

(c) Satisfactory completion of basic orientation, including instructions for mandatory reporting and training specific to intellectual or developmental disabilities and skills required to carry out assigned work if the employee is to provide direct assistance to individuals;

(d) Written documentation of employee notification of mandatory reporter status;

(e) Written documentation of any founded report of child abuse or substantiated abuse;

(f) Written documentation of any complaints filed against the staff and the results of the complaint process, including any disciplinary action; and

(g) Legal eligibility to work in the United States.

(2) Any employee providing direct assistance to individuals must be at least 18 years of age and capable of performing the duties of the job as described in a current job description signed and dated by the employee.

(3) An application for employment at the Brokerage must inquire whether an applicant has had any founded reports of child abuse or substantiated abuse.

(4) Any employee of the Brokerage, or any subject individual defined by OAR 407-007-0210, who has or will have contact with an eligible individual of support services, must have an approved background check in accordance with OAR 407-007-0200 to 407-007-0370 and under ORS 181.534.

(5) A person may not be authorized as a provider or meet qualifications as described in this rule if the person has been convicted of any of the disqualifying crimes listed in OAR 407-007-0275.

(6) Section (5) of this rule does not apply to employees of the brokerage who were hired prior to July 28, 2009 and remain in the current position for which the employee was hired.

(7) Each Brokerage regulated by these rules must be a drug-free workplace.

(8) BROKERAGE DIRECTOR.

(a) The Brokerage must employ a full-time Brokerage Director who is responsible for the daily operations of the Brokerage in compliance with these rules and who has authority to make budget, staffing, policy, and procedural decisions for the Brokerage.

(b) In addition to the general staff qualifications in sections (1) and (2) of this rule, the Brokerage Director must have:

(A) A minimum of a bachelor's degree and two years of experience, including supervision, in the field of intellectual or developmental disabilities, social services, mental health, or a related field; or

(B) Six years of experience, including supervision, in the field of intellectual or developmental disabilities, social services, or mental health.

(9) PERSONAL AGENTS.

(a) Each personal agent must meet the qualifications of a case manager as described in OAR 411-415-0040.

(b) A Brokerage must submit a written variance request to the Department prior to employing a person not meeting the minimum qualifications for a personal agent set forth in subsection (a) of this section. The variance request must include:

(A) An acceptable rationale for the need to employ a person who does not meet the qualifications; and

(B) A proposed alternative plan for education and training to correct the deficiencies.

(i) The proposal must specify activities, timelines, and responsibility for costs incurred in completing the alternative plan.

(ii) A person who fails to complete the alternative plan for education and training to correct the deficiencies may not fulfill the requirements for the qualifications.

(c) The duties of the personal agent must be specified in a job description and include, at a minimum:

(A) The delivery of case management services to individuals as described in OAR chapter 411, division 415; and

(B) Assisting the Brokerage Director in the identification of existing and insufficient service delivery resources or options.

(10) Qualified staff of the Brokerage must maintain and enhance their knowledge and skills through participation in education and training. The Department provides training materials and the provision of training may be conducted by the Department or Brokerage staff, depending on available resources.

(11) Staff must appear as a witness on behalf of the Department during an informal conference and hearing when required by the Department. Staff may not act as a representative for the claimant during an informal conference and hearing.

Stat. Auth.: ORS 409.050, 427.402 & 430.662
Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695
Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; Renumbered from 309-041-1810, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 21-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-29-08; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 2-2010(Temp), f. & cert. ef. 3-18-10 thru 6-30-10; SPD 5-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13; APD 15-2016, f. 6-28-16, cert. ef. 6-29-16

411-340-0080

Record Requirements

(1) INDIVIDUAL RECORD REQUIREMENTS. The Brokerage must maintain current, up-to-date records for each individual receiving brokerage and support services and must make these records available to the Department upon request. The individual or the legal representative of the individual may access any portion of the record upon request. Individual records must include, at minimum:

(a) Application and eligibility information received from the referring CDDP; and

(b) Documents related to determining eligibility for brokerage and support services;

(2) CONFIDENTIALITY AND DISCLOSURE.

(a) Individual records must be kept confidential in accordance with ORS 179.505 and any Department rules or policies pertaining to individual records.

(b) For the purpose of disclosure from individual medical records under these rules, Brokerages are considered "providers" as defined in ORS 179.505(1) and ORS 179.505 is applicable.

(c) Access to records by the Department does not require authorization by an individual or the legal or designated representative or family of the individual.

(d) For the purpose of disclosure of non-medical individual records, all or portions of the information contained in the non-medical individual records may be exempt from public inspection under the personal privacy information exemption to the public records law set forth in ORS 192.502(2).

(3) GENERAL FINANCIAL POLICIES AND PRACTICES. The Brokerage must:

(a) Maintain up-to-date accounting records consistent with generally accepted accounting principles that accurately reflect all revenue by source, all expenses by object of expense, and all assets, liabilities, and equities;

(b) As a Brokerage offering services to the general public, establish and revise, as needed, a fee schedule identifying the cost of each service provided. Billings for Medicaid funds may not exceed the customary charges to private individuals for any like item or services charged by the Brokerage; and

(c) Develop and implement written statements of policy and procedure as are necessary and useful to assure compliance with any Department rule pertaining to fraud and embezzlement.

(4) RECORDS RETENTION. Records must be retained in accordance with OAR chapter 166, division 150, Secretary of State, Archives Division.

(a) Financial records, supporting documents, statistical records, and all other records (except individual records) must be retained for at least three years after the close of the contract period.

(b) Individual records must be kept for at least seven years.

Stat. Auth.: ORS 409.050, 427.402 & 430.662
Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695
Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; Renumbered from 309-041-1820, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 5-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13; APD 44-2014, f. 12-26-14, cert. ef. 12-28-14; APD 15-2016, f. 6-28-16, cert. ef. 6-29-16

411-340-0090

Request for Variance

(1) A variance that does not adversely impact the welfare, health, safety, or rights of individuals or violate state or federal laws may be granted to a Brokerage:

(a) If the Brokerage lacks the resources needed to implement the standards required in these rules;

(b) If implementation of the proposed alternative services, methods, concepts, or procedures shall result in services or systems that meet or exceed the standards in these rules; or

(c) If there are other extenuating circumstances.

(2) The Brokerage requesting a variance must submit a written application to the Department that contains the following:

(a) The section of the rule from which the variance is sought;

(b) The reason for the proposed variance;

(c) A description of the alternative practice, service, method, concept, or procedure proposed, including how the health and safety of individuals receiving services shall be protected to the extent required by these rules;

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought; and

(e) If the variance applies to the services to an individual, evidence that the variance is consistent with the currently authorized ISP for the individual.

(3) The request for a variance is approved or denied by the Department. The decision of the Department is sent to the Brokerage and to all relevant Department programs or offices within 45 days from the receipt of the variance request.

(4) The Brokerage may request an administrator review of the denial of a variance request by sending a written request for review to the Director of the Department. The decision of the Director is the final response from the Department.

(5) The Department determines the duration of the variance.

(6) The Brokerage may implement a variance only after written approval from the Department.

Stat. Auth.: ORS 409.050, 427.402 & 430.662
Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695
Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; Renumbered from 309-041-1830, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13; APD 44-2014, f. 12-26-14, cert. ef. 12-28-14; APD 15-2016, f. 6-28-16, cert. ef. 6-29-16

411-340-0100

Eligibility for Brokerage and Support Services

(1) Individuals determined eligible for brokerage and support services may not be denied or otherwise discriminated against on the basis of age, diagnostic or disability category, race, color, creed, national origin, citizenship, income, or duration of Oregon residence.

(2) ELIGIBILITY. In order to be eligible for brokerage and support services, an individual must:

(a) Be an adult;

(b) Be an Oregon resident who meets the citizenship and alien status requirements of OAR 461-120-0110;

(c) Be determined eligible for developmental disabilities services by the CDDP of the county of origin as described in OAR 411-320-0080; and

(d) Reside in their own or family home.

Stat. Auth.: ORS 409.050, 427.402 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 427.40–427.410, 430.610, 430.620 & 430.662–430.695

Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; Renumbered from 309-041-1840, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 18-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; SPD 21-2011(Temp), f. & cert. ef. 8-31-11 thru 12-28-11; SPD 27-2011, f. & cert. ef. 12-28-11; SPD 13-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13; APD 26-2014(Temp), f. & cert. ef. 7-1-14 thru 12-28-14; APD 44-2014, f. 12-26-14, cert. ef. 12-28-14; APD 15-2016, f. 6-28-16, cert. ef. 6-29-16

411-340-0110

Standards for Entry and Exit

(1) ENTRY.

(a) To enter a Brokerage:

(A) An individual must be determined eligible for brokerage and support services as described in OAR 411-340-0100; and

(B) The individual must choose to receive services from a Brokerage operating in the geographic service area of the county of origin.

(b) The Department may implement guidelines that govern entries when the Department has determined that such guidelines are prudent and necessary for the continued development and implementation of brokerage and support services.

(c) The Brokerage may not accept individuals for entry beyond the total number of individuals specified in the current contract between the Brokerage and the Department.

(2) The Brokerage must make accurate, up-to-date, information about the Brokerage available to individuals referred for services and the legal or designated representatives of individuals. This information must include:

(a) A declaration of Brokerage philosophy;

(b) A declaration of Brokerage employees' responsibilities as mandatory abuse reporters;

(c) Indication that additional information about the Brokerage is available on request. The additional information must include, but not be limited to:

(A) A description of the organizational structure of the Brokerage;

(B) A description of any contractual relationships the Brokerage has in place, or may establish, to accomplish the functions required by rule; and

(C) A description of the relationship between the Brokerage and the Policy Oversight Group of the brokerage.

(3) The Brokerage must ensure that all individuals eligible for and receiving developmental disabilities services are enrolled in the Department payment and reporting systems.

(4) Individuals are not eligible for services by more than one Brokerage at any one time.

(5) EXIT.

(a) An individual must exit a Brokerage:

(A) When the individual is exited from case management services as described in OAR 411-415-0030; or

(B) Before the individual enrolls in a residential program.

(b) In the event an individual exits a Brokerage, a written Notification of Planned Action must be provided as described in OAR 411-340-0060 and OAR chapter 411, division 318.

(c) Each Brokerage must have policies and procedures for notifying the CDDP of the county of origin of an individual when the individual plans to exit, or exits, brokerage or support services. Notification method, timelines, and content must be based on agreements between the Brokerage and the CDDP of each county in which the Brokerage provides services.

(d) The Brokerage must terminate an individual in the Department payment and reporting systems when an individual exits all developmental disabilities services.

(6) When an individual may have long-term support needs that require enrollment into a residential program:

(a) The Brokerage must provide timely notification to the CDDP of the county of origin of the individual;

(b) The Brokerage must coordinate with the CDDP to facilitate a timely exit from the Brokerage and entry into appropriate, alternative services; and

(c) The Brokerage must assure that information required for a potential operator of a residential program is available as needed for a referral to be made.

Stat. Auth.: ORS 409.050, 427.402 & 430.662
Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695
Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; MHD 4-2003(Temp); f. & cert. ef. 7-1-03 thru 12-27-03; Renumbered from 309-041-1850, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 32-2004, f. & cert. ef. 10-25-04; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 17-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 21-2011(Temp), f. & cert. ef. 8-31-11 thru 12-28-11; SPD 27-2011, f. & cert. ef. 12-28-11; DVA 3-2007, f. & cert .ef. 9-25-07; SPD 13-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13; APD 26-2014(Temp), f. & cert. ef. 7-1-14 thru 12-28-14; APD 44-2014, f. 12-26-14, cert. ef. 12-28-14; APD 15-2016, f. 6-28-16, cert. ef. 6-29-16

411-340-0120

Brokerage and Support Services

(1) Each Brokerage must provide or arrange for the following services as required to meet individual support needs:

(a) Case management as described in OAR chapter 411, division 415; and

(b) Assistance with development and expansion of community resources required to meet the support needs of individuals served by the Brokerage.

(2) PARTICIPATION IN PROTECTIVE SERVICES. The Brokerage and personal agent are responsible for the delivery of protective services, in cooperation with the CDDP when necessary, through the timely completion of activities necessary to address immediate health and safety concerns.

Stat. Auth.: ORS 409.050, 427.402 & 430.662
Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695
Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; MHD 4-2003(Temp); f. & cert. ef. 7-1-03 thru 12-27-03; Renumbered from 309-041-1860, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 17-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 25-2010(Temp), f. & cert. ef. 11-17-10 thru 5-16-11; SPD 10-2011, f. & cert. ef. 5-5-11; SPD 27-2011, f. & cert. ef. 12-28-11; SPD 13-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13; APD 26-2014(Temp), f. & cert. ef. 7-1-14 thru 12-28-14; APD 44-2014, f. 12-26-14, cert. ef. 12-28-14; APD 32-2015(Temp), f. 12-31-15, cert. ef. 1-1-16 thru 6-28-16; APD 15-2016, f. 6-28-16, cert. ef. 6-29-16

411-340-0150

Standards for Administration and Operations

(1) POLICY OVERSIGHT GROUP. The Brokerage must develop and implement procedures for incorporating the direction, guidance, and advice of individuals and family members of individuals in the administration of the organization.

(a) The Brokerage must establish and utilize a Policy Oversight Group, of which the membership majority must be individuals and family members of individuals.

(b) Brokerage procedures must be developed and implemented to assure the Policy Oversight Group has the maximum authority that may be legally assigned or delegated over important program operational decisions, including such areas as program policy development, program planning and goal setting, budgeting and resource allocation, selection of key personnel, program evaluation and quality assurance, and complaint resolution.

(c) If the Policy Oversight Group is not also the governing body of the Brokerage, then the Brokerage must develop and implement a written procedure that describes specific steps of appeal or remediation to resolve conflicts between the Policy Oversight Group and the governing body of the Brokerage.

(d) A Policy Oversight Group must develop and implement operating policies and procedures.

(2) QUALITY ASSURANCE.

(a) The Policy Oversight Group must develop a Quality Assurance Plan and review the plan at least twice a year. The Quality Assurance Plan must include a written statement of values, organizational outcomes, activities, and measures of progress that:

(A) Uses information from a broad range of individuals, legal or designated representatives, professionals, and other sources to determine community support needs and preferences;

(B) Involves individuals in ongoing evaluation of the quality of his or her personal supports; and

(C) Monitors:

(i) Customer satisfaction with the services of the Brokerage and with individual plans in areas, such as individual access to supports, sustaining important personal relationships, flexible and unique support strategies, individual choice and control over supports, responsiveness of the Brokerage to changing needs, and preferences of the individuals; and

(ii) Service outcomes in areas such as achievement of personal goals and effective use of resources.

(b) The Brokerage must participate in statewide evaluation, quality assurance, and regulation activities as directed by the Department.

(3) GENERAL OPERATING POLICIES AND PRACTICES. The Brokerage must develop and implement such written statements of policy and procedure in addition to those specifically required by this rule as are necessary and useful to enable the Brokerage to accomplish the objectives of the Brokerage and to meet the requirements of these rules and other applicable standards and rules.

Stat. Auth.: ORS 409.050, 427.402 & 430.662
Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695
Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; MHD 4-2003(Temp); f. & cert. ef. 7-1-03 thru 12-27-03; Renumbered from 309-041-1890, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 32-2004, f. & cert. ef. 10-25-04; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 17-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 21-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-29-08; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 27-2011, f. & cert. ef. 12-28-11; SPD 13-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13; APD 26-2014(Temp), f. & cert. ef. 7-1-14 thru 12-28-14; APD 44-2014, f. 12-26-14, cert. ef. 12-28-14; APD 32-2015(Temp), f. 12-31-15, cert. ef. 1-1-16 thru 6-28-16; APD 15-2016, f. 6-28-16, cert. ef. 6-29-16

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