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The Oregon Administrative Rules contain OARs filed through October 15, 2014
 
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OREGON HEALTH AUTHORITY,
ADDICTIONS AND MENTAL HEALTH DIVISION: ADDICTION SERVICES

 

DIVISION 65

HEALTH PROFESSIONALS' SERVICES PROGRAM

415-065-0005

Purpose, Intent and Scope

(1) These rules establish a consolidated, statewide health professionals’ services program for licensees of participating health licensing boards, as required by ORS 676.190, who are unable to practice with professional skill and safety due to substance use disorders, mental disorders, or both types of disorders. The program shall enroll licensees in the program, monitor enrolled licensees for compliance with monitoring agreements, report non-compliance to a licensee’s board, and perform other duties as required by 676.190 to 676.200.

(2) The program may be operated by the Division or by a private contractor.

Stat. Auth.: ORS 413.042 & ORS 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 2-2014, f. 4-24-14

415-065-0010

Definitions

(1) “Assessment” or “Evaluation” means the process an independent third-party evaluator uses to diagnose the licensee and to recommend treatment options for the licensee.

(2) “Authority” means the Oregon Health Authority.

(3) “Board” means a health professional board as defined in ORS 676.160 or the Health Licensing Office for a board, council or program listed in 676.606.

(4) “Business Day” means Monday through Friday, 8:00 a.m. to 5:00 p.m. Pacific Time, except legal holidays as defined in ORS 187.010 or 187.020.

(5) “Comply Continuously” means to have been:

(a) Enrolled in the program for at least two uninterrupted years without any reports of substantial noncompliance that a board deems were significant violations of the monitoring agreement; and

(b) Deemed by the program if self-referred, or by the licensee’s board if board referred, to have otherwise successfully complied with all terms of the monitoring agreement.

(6) “Course of Employment” means all circumstances which may occur in the performance of a licensee’s job, whether or not the licensee is self-employed.

(7) "Diagnosis" means the principal mental or substance use diagnosis listed in the DSM. The diagnosis is determined through the assessment and any examinations, tests, or consultations suggested by the assessment, and is the medically appropriate reason for services.

(8) “Direct Supervisor” means the individual who is responsible for:

(a) Supervising a licensee enrolled in the impaired health professional program;

(b) Monitoring the licensee’s compliance with the requirements of the program; and

(c) Periodically reporting to the program on the licensee’s compliance with the requirements of the program.

(9) "Division" means the Oregon Health Authority, Addictions and Mental Health Division.

(10) "DSM" means the Diagnostic and Statistical Manual of Mental Disorders-5, published by the American Psychiatric Association on May 18, 2013.

(11) “Independent Third-Party Evaluator” means an individual who is approved by a licensee’s board to evaluate, diagnose, and offer treatment options for substance use disorders, mental disorders, or co-occurring disorders.

(12) “Licensee” means a health professional who is licensed or certified by or registered with a board and the professional is receiving services in the program under these rules.

(13) “Mental Disorder” means a clinically significant behavioral or psychological syndrome or pattern that occurs in an individual and that is associated with present distress or disability or with a significantly increased risk of suffering death, pain, disability, or an important loss of freedom that is identified in the DSM. “Mental Disorder” includes gambling disorders.

(14) “Monitoring Agreement” means an individualized agreement, including amendments, between a licensee and the program that meets the requirements of OAR 415-065-XXXX and is the same as the term diversion agreement as that is used in ORS 676.190.

(15) “Positive Toxicology Test” for the purposes of ORS 676.185(5)(d) means that a test result meets or exceeds the cutoff concentrations listed in 49 CFR § 40.87 as in effect on [insert effective date of rules] for the substances listed in that federal regulation.

(16) “Program” means the Health Professionals’ Services Program established by the Division to monitor enrolled licensees of participating health profession licensing boards who have been diagnosed with a substance use or a mental disorder, for compliance with his or her monitoring agreement. If the program is operated by a contractor “program” may refer to the contractor, or the Division and the contractor, depending on the context.

(17) “Provisional Enrollment” means temporary enrollment, pending verification that a self-referred licensee meets all program eligibility criteria.

(18) “Random Drug or Alcohol Testing” for the purposes of ORS 676.190(5)(g) means enrolled licensees are selected for drug or alcohol testing in accordance with 49 CFR § 199.105(c)(5) and 49 CFR § 199.105(c)(7) as in effect on [insert effective date of rules].

(19) “Self-Referred Licensee” means a licensee who seeks to participate in the program without a referral from the board.

(20) "Substance Use Disorder" means a disorder related to the taking of a drug of abuse including alcohol, to the side effects of a medication, and to a toxin exposure. Disorders include substance dependence and substance abuse, and substance-induced disorders, including substance intoxication, withdrawal, delirium, and dementia, as well as substance induced psychotic disorder, mood disorder and other disorders, as defined in DSM criteria.

(21) “Substantial Non-Compliance” means but is not limited to the following when they occur after a licensee entered into a monitoring agreement.

(a) Criminal behavior;

(b) Conduct that causes injury, death or harm to the public, or a patient, including sexual impropriety with a patient;

(c) Impairment in a health care setting in the course of employment;

(d) A positive toxicology test result as determined by federal regulations pertaining to drug testing;

(e) Violation of a restriction on a licensee’s practice imposed by the program or the licensee’s health profession licensing board

(f) Civil commitment for mental illness;

(g) Failure to participate in the program after entering into a monitoring agreement under ORS 676.190;

(h) Failure to enroll in the program after being referred to the program;

(i) Violation of a provision of a licensee’s monitoring agreement that gives rise to concerns about the licensee’s ability or willingness to participate in the program; or

(j) Violation of a Board’s rules establishing additional requirements for licensees referred to the program in accordance with ORS 676.200(1)(c).

(22) “Successful Completion” means that for the period of service deemed necessary by the program or by the licensee’s board by rule, the licensee has complied with the licensee’s monitoring agreement to the satisfaction of the program, and has met the terms of the fee agreement between the program and the licensee.

(23) “Toxicology Testing” means urine testing or alternative chemical monitoring including but not limited to blood, saliva, hair or breath.

(24) "Treatment" means the planned, specific, individualized health and behavioral-health procedures, activities, services and supports that a treatment provider uses to remediate symptoms of a substance use disorder, mental disorder or both types of disorders.

(25) “Workplace Monitor” includes but is not limited to a direct supervisor and any other individual who has signed a workplace monitoring agreement with the program that requires the individual to observe and report to the program a licensee’s:

(a) Compliance with his or her monitoring agreement; or

(b) Any other concerns regarding the licensee’s participation in the program.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 3-2011, f. & cert. ef. 8-16-11; ADS 2-2012, f. & cert. ef. 2-9-12; ADS 3-2012, f. 6-27-12, cert. ef. 7-1-12; ADS 2-2014, f. 4-24-14

415-065-0020

Audits

(1) The Division shall arrange for an independent third-party to audit the program and to ensure compliance with the program guidelines.

(2) The Division shall report the results of the audit to the Legislative Assembly, the Governor, and the boards.

(3) The Division’s report may not contain individually identifiable information about the licensees.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 3-2012, f. 6-27-12, cert. ef. 7-1-12; ADS 7-2013(Temp), f. & cert. ef. 11-8-13 thru 5-7-14; Administrative correction, 5-21-14

415-065-0030

Administration Fee

(1) Each board that participates in the program shall pay the Division a fee for participating in the program.

(2) The Division shall calculate the total fee based on all the program costs, including but not limited to, Division personnel costs and ancillary expenses, funds paid to a contractor for operating the program, if any and the costs of an auditor.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 2-2012, f. & cert. ef. 2-9-12; ADS 3-2012, f. 6-27-12, cert. ef. 7-1-12; ADS 2-2014, f. 4-24-14

415-065-0035

Board Referrals

(1) A board that refers a licensee to the program must make the referral in writing. The referral must include:

(a) A copy of a report from an independent third-party evaluator who diagnosed the licensee with a substance use disorder, a mental disorder or both types of disorder, stating the diagnosis and the applicable diagnostic code from the DSM;

(b) The recommended treatment plan;

(c) A statement that the board has investigated the licensee’s professional practice and has determined whether the licensee’s professional practice, while impaired, presents or has presented a danger to the public;

(d) A description of any restrictions imposed by the board or recommended by the board on the licensee’s professional practice;

(e) A statement that the licensee has agreed to report any arrest for or conviction of a misdemeanor or felony crime to the board within three business days after the licensee is arrested or convicted; and

(f) A written statement from the licensee agreeing to enter the program and agreeing to abide by all terms and conditions established by the program.

(2) A board-referred licensee is enrolled in the program effective on the date the program receives the licensee’s signed consents and the signed monitoring agreement including payment of fees as required by ORS 676.190.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 2-2012, f. & cert. ef. 2-9-12; ADS 3-2012, f. 6-27-12, cert. ef. 7-1-12; ADS 2-2014, f. 4-24-14

415-065-0040

Self-Referrals

(1) A licensee may only self-refer to the program if the licensee’s board has adopted a rule permitting self-referrals.

(2) Provisional Enrollment. To be provisionally enrolled in the program, a self-referred licensee must:

(a) Sign a written consent allowing disclosure and exchange of information between the program or the program’s contractor, as applicable, the licensee’s employer, independent third-party evaluators, and treatment providers;

(b) Sign a written consent allowing disclosure and exchange of information between the program or the programs’ contractor, as applicable, the board, the licensee’s employer, independent third-party evaluators and treatment providers in the event the program determines the licensee to be in substantial noncompliance with his or her provisional monitoring agreement.;

(c) Sign a written statement that the licensee has agreed to report any arrest for or conviction of a misdemeanor or felony crime to the program within three business days after the licensee is arrested or convicted;

(d) Attest that the licensee is not, to the best of the licensee’s knowledge, under investigation by his or her board; and

(e) Agree to and sign a monitoring agreement.

(3) Enrollment: To move from provisional enrollment to enrollment in the program, a self-referred the licensee must:

(a) Obtain at the licensee’s own expense and provide to the program, an independent third-party evaluator’s written evaluation containing a DSM diagnosis and diagnostic code, treatment recommendations, and practice restrictions, if any;

(b) Agree to cooperate with the program’s investigation to determine whether the licensee’s practice while impaired presents or has presented a danger to the public; and

(c) Enter into an amended monitoring agreement to reflect the treatment recommendations of the independent third-party evaluator and the program’s practice investigation.

(4) Once the program provisionally enrolls a self-referred licensee in the program failure to complete enrollment constitutes substantial non-compliance and must be reported to the board.

(5) The program may not report a self-referred licensee’s enrollment in or successful completion of the program to the licensee’s board.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 2-2012, f. & cert. ef. 2-9-12; ADS 3-2012, f. 6-27-12, cert. ef. 7-1-12; ADS 2-2014, f. 4-24-14

415-065-0045

Licensee Responsibilities

(1) Board-referred licensees must:

(a) Comply continuously with his or her monitoring agreement, including any amendments to the agreement required by the licensee’s board or the program, for at least two years or longer, as specified by the board by rule or order; and

(b) Be responsible for the cost of evaluations, toxicology testing and treatment.

(2) Self-referred licensees must:

(a) Provide to the program a copy of a report of the licensee’s criminal history periodically, at the program’s discretion;

(b) Comply continuously with his or her monitoring agreement, including any amendments to the agreement required by the program, for at least two years or longer, as specified by the board by rule or order; and

(c) Be responsible for the cost of evaluations, toxicology testing and treatment.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 2-2012, f. & cert. ef. 2-9-12; ADS 2-2014, f. 4-24-14

415-065-0050

Unique Identification Number

(1) The program shall assign a unique licensee identification number to each licensee enrolled in the program:

(a) If the program is operated by a contractor, the contractor and the Division shall use the same number and shall include the number in any communications or data exchanges involving the licensee;

(b) Once a unique identification is used the program may not use it again for any other licensee enrolled in the program and it shall be retired when the licensee is no longer enrolled in the program; and

(c) If a licensee reenrolls in the the program the program must use the same unique identification number that was previously assigned to the licensee.

(2) The program may not use all or a portion of a licensee’s social security number as the unique identification number.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 2-2012, f. & cert. ef. 2-9-122; ADS 3-2012, f. 6-27-12, cert. ef. 7-1-12; ADS 2-2014, f. 4-24-14

415-065-0055

Program Requirements

The contractor shall:

(1) Inform the licensee about the program services, requirements, benefits, risks, and confidentiality limitations and ensure that the licensee has signed a consent for services. The consent for services explains:

(a) Information the contractor will give to the board and under what circumstances;

(b) That the board may take action to suspend, restrict, modify, or revoke the licensee’s license or end the licensee’s participation in the program based on information from the contractor.

(2) Enter into a monitoring agreement with the licensee;

(3) Assess the licensee’s compliance with his or her monitoring agreement;

(4) Assess the ability of the licensee’s employer, when an employer exists to supervise the licensee, and require the employer to establish minimum training requirements for the licensee’s supervisor;

(5) Report the licensee’s substantial noncompliance with his or her monitoring agreement to a noncompliant licensee’s board within one business day after the contractor learns of any substantial noncompliance; and

(6) At least weekly, submit to licensees’ boards:

(a) A list of licensees who were referred to the program by the health profession licensing board and who are enrolled in the program; and

(b) A list of licensees who were referred to the program by the health profession licensing board and who successfully completed the program.

(7) The lists submitted under section 6 (a) (b) are exempt from disclosure as a pubic record under ORS 192.140 to 192.505.

(8) Seek a court order authorizing the contractor to release identifying information to a licensee’s board, including a report of substantial noncompliance as is described in OAR 415-065-0060, if a self-referred licensee enrolled in the program, or a provisionally enrolled licensee with a qualifying diagnosis, revokes his or her consent to report substantial noncompliance to the licensee’s board.

(a) The contractor shall file documents with the court seeking a court order as soon as possible but no later than three business days from the date it was notified that the licensee revoked consent to report substantial noncompliance.

(b) The contractor shall comply with 42 USC & 290dd-2(b)(2); 42 CFR Part 2; the Health Insurance Portability and Accountability Act (HIPAA), Public Law 104-191, 45 CFR Parts 160, 162 and 164 and ORS 179.505, ORS 192.518–192.524 in seeking such a court order.

(c) The contractor shall disclose to the licensee’s board, within one (1) business day, any information the court authorizes it to disclose.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 1-2011(Temp), f. & cert. ef. 2-11-11 thru 8-5-11; ADS 3-2011, f. & cert. ef. 8-16-11; ADS 2-2012, f. & cert. ef. 2-9-122; ADS 3-2012, f. 6-27-12, cert. ef. 7-1-12; ADS 7-2013(Temp), f. & cert. ef. 11-8-13 thru 5-7-14; ADS 2-2014, f. 4-24-14; Administrative correction, 5-21-14

415-065-0060

Reports of Substantial Noncompliance

Unless otherwise prohibited by law, a report of substantial noncompliance to a licensee’s board must include:

(1) A description of the noncompliance;

(2) A copy of the report from the independent third-party evaluator who diagnosed the licensee stating the licensee’s diagnosis

(3) A copy of the licensee’s monitoring agreement; and

(4) The licensee’s practice or employment status.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 2-2012, f. & cert. ef. 2-9-122; ADS 3-2012, f. 6-27-12, cert. ef. 7-1-12; ADS 2-2014, f. 4-24-14

415-065-0070

Monitoring Agreements

Each monitoring agreement developed by the program and entered into by a licensee must require the licensee to:

(1) Participate in the program for at least two years or longer, as specified by board rule or order;

(2) Participate in the recommended treatment plan;

(3) Comply with any practice restrictions required by the board or if the licensee is a self-referred licensee, any practice restrictions recommended by the third-party evalator;

(4) Comply with any applicable workplace monitoring requirements;

(5) Abstain from all mind-altering or intoxicating substances or potentially addictive drugs, unless the drug is:

(a) Prescribed for a documented medical condition by a person authorized by law to prescribe the drug to the licensee; and

(b) Approved by the program if the licensee’s board has granted the program that authority;

(6) Report to the program the licensee’s:

(a) Use of mind-altering or intoxicating substances or potentially addictive drugs within 24 hours of the licensee’s use of the substances or drugs;

(b) Arrest for or conviction of a misdemeanor or felony crime within three business days of the arrest or conviction; and

(c) Application for licensure in another state, change in employment, change in practice setting, or change in residence;

(7) Submit to random toxicology testing in accordance with an individualized schedule, unless the licensee is diagnosed with solely a mental disorder and the licensee’s board does not otherwise require the licensee to submit to random drug or alcohol testing;

(8) Comply with other toxicology testing in accordance with OAR 415-065-0075;

(9) Submit periodic reports to the program regarding the licensee’s compliance with the monitoring agreement at a frequency determined by program;

(10) Comply with any other requirement established by the licensee’s board in accordance with ORS 676.200(1)(c);

(11) Comply with any amendments to the monitoring agreement deemed necessary by the licensee’s board or the program because of a change in the licensee’s situation; and

(12) Pay any required fees.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 2-2014, f. 4-24-14

415-065-0075

Toxicology Testing

(1) Unless a licensee is diagnosed solely with a mental disorder and an independent third-party evaluator has not recommended toxicology testing, the program must ensure that a licensee receives:

(a) A baseline toxicology test within fifteen business days of the date the licensee is enrolled in the program; and

(b) A final toxicology test before the licensee is deemed to successfully complete the program;

(2) The program may require a licensee to submit to a non-random toxicology test.

(3) Urinalysis specimens.

(a) The program must ensure that urine specimens are collected in a way that preserves the integrity of the specimen and unless otherwise provided by the licensee's board by rule, that the person collecting the sample is able to directly observe the urine leaving the licensee’s body and enter the collection cup.

(b) If the program suspects that the licensee has used alcohol or other drugs in violation of the licensee's monitoring agreement or suspects that the licensee has attempted to provide a false or dilute urine sample, the program may require a licensee to provide a directly observed urine specimen under the procedures described in 49 CFR § 40.67(g) through (k), in effect on 4-24-14, including having an individual the same gender as the licensee:

(A) Ask the licensee to raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist, and lower clothing and underpants to demonstrate, by turning around, that the licensee does not have a prosthetic device to dispense urine; and

(B) Watch the urine go from the licensee's body into the specimen collection container.

(4) Toxicology testing must be done by a laboratory:

(a) Certified by the Substance Abuse and Mental Health Services Administration and accredited through the College of American Pathologists Forensic Drug Testing Accreditation Program; and

(b) That performs testing in compliance with OAR 333-024-0305 through 333-024-0350.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 2-2014, f. 4-24-14

415-065-0080

Confidentiality

The program may not use or disclose any information that individually identifies a licensee except in accordance with 42 CFR § Part 2 and any other applicable federal or state laws

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 2-2014, f. 4-24-14

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