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DEPARTMENT OF HUMAN SERVICES,

AGING AND PEOPLE WITH DISABILITIES AND DEVELOPMENTAL DISABILITIES




 

DIVISION 323
DEVELOPMENTAL DISABILITY CERTIFICATION AND ENDORSEMENT

411-323-0010
Statement of Purpose
(1) The rules in OAR chapter 411, division
323 prescribe standards, responsibilities, and procedures for agencies to obtain
a certificate and endorsement in order to provide person-centered services to individuals
with intellectual or developmental disabilities in a community-based service setting
as described in:
(a) OAR chapter 411, division
325 for 24-hour residential settings;
(b) OAR chapter 411, division
328 for supported living settings; and
(c) OAR chapter 411, division
345 for employment.
(2) To provide person-centered
services to individuals with intellectual or developmental disabilities in the community-based
service settings described in section (1) of this rule, agencies must have:
(a) A certificate to provide
Medicaid services in the state of Oregon as described in OAR 411-323-0030;
(b) Endorsement for each
service setting as described in OAR 411-323-0035;
(c) A Medicaid Agency Identification
Number assigned by the Department as described in OAR chapter 411, division 370;
and
(d) For each licensed site
or geographic location where direct services are to be delivered, a Medicaid Performing
Provider Number assigned by the Department as described in OAR chapter 411, division
370.
Stat. Auth. ORS 409.050
Stats. Implemented: ORS 409.050
Hist.: SPD 12-2011, f. &
cert. ef. 7-1-11; SPD 19-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; SPD
1-2012, f. & cert. ef. 1-6-12; APD 24-2014(Temp), f. & cert. ef. 7-1-14
thru 12-28-14; APD 42-2014, f. 12-26-14, cert. ef. 12-28-14
411-323-0020
Definitions
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 323:
(1) "24-Hour Residential
Setting" means a comprehensive residential home licensed by the Department under
ORS 443.410 to provide residential care and training to individuals with intellectual
or developmental disabilities.
(2) "Abuse" means:
(a) For a child:
(A) "Abuse" as defined in
ORS 419B.005; and
(B) "Abuse" as defined in
OAR 407-045-0260 when a child resides in a 24-hour residential setting licensed
by the Department as described in OAR chapter 411, division 325.
(b) For an adult, "abuse"
as defined in OAR 407-045-0260.
(3) "Abuse Investigation"
means the reporting and investigation activities as required by OAR 407-045-0300
and any subsequent services or supports necessary to prevent further abuse as required
by OAR 407-045-0310.
(4) "Adult" means an individual
who is 18 years or older with an intellectual or developmental disability.
(5) "Agency" means a public
or private community agency or organization that is approved by the Department to
provide services to individuals with intellectual or developmental disabilities
in a community-based service setting.
(6) "Applicant" means a person,
agency, corporation, or governmental unit who applies for certification and endorsement
to operate an agency providing services to individuals with intellectual or developmental
disabilities in a community-based service setting.
(7) "Audit" means an inspection
completed by a Certified Public Accountant using standards and accepted practices
of accounting activities to ensure all state and federal funds are expended for
the purpose the funds were contracted and intended for without fraudulent activity.
(8) "Audit Review" means
a Certified Public Accountant, without applying comprehensive audit procedures,
assesses the standards and accepted practices of accounting activities and ensures
the accounting activities are in conformity with generally accepted accounting principles.
(9) "Board of Directors"
means the group of people formed to set policy and give directions to an agency
designed to provide services to individuals with intellectual or developmental disabilities
in a community-based service setting. A board of directors may include local advisory
boards used by multi-state organizations.
(10) "CDDP" means "community
developmental disability program" as defined in OAR 411-320-0020.
(11) "Certificate" means
the document issued by the Department to an agency that certifies the agency is
eligible to receive state funds for the provision of services in an endorsed service
setting.
(12) "Chemical Restraint"
means the use of a psychotropic drug or other drugs for punishment or to modify
behavior in place of a meaningful behavior or treatment plan.
(13) "Child" means an individual
who is less than18 years of age that has a provisional determination of an intellectual
or developmental disability.
(14) "Choice" means the expression
of preference, opportunity for, and active role of an individual in decision-making
related to services received and from whom including, but not limited to, case management,
providers, services, and service settings. Individuals are supported in opportunities
to make changes when so expressed. Choice may be communicated through a variety
of methods, including orally, through sign language, or by other communication methods.
(15) "Complaint" means "complaint"
as defined in OAR 411-318-0005.
(16) "Complaint Investigation"
means the investigation of a complaint that has been made to a proper authority
that is not covered by an abuse investigation.
(17) "Condition" means a
provision attached to:
(a) A new or existing certificate
that limits or restricts the scope of the certificate or imposes additional requirements
on the certified agency; or
(b) A new or existing endorsement
that limits or restricts the scope of program services or imposes additional requirements
on the certified agency.
(18) "Denial" means the refusal
of the Department to issue:
(a) A certificate to operate
an agency because the Department has determined the agency is not in compliance
with these rules or the corresponding program rules; or
(b) An endorsement for an
agency to provide program services because the Department has determined the agency
is not in compliance with these rules or the corresponding program rules.
(19) "Department" means the
Department of Human Services.
(20) "Designated Representative"
means any adult, such as a parent, family member, guardian, advocate, or other person,
who is chosen by an individual or the legal representative of the individual, not
a paid provider for the individual, and authorized by the individual or the legal
representative of the individual to serve as the representative of the individual
or the legal representative of the individual in connection with the provision of
funded supports. An individual or a legal representative of the individual is not
required to appoint a designated representative.
(21) "Developmental Disability"
means "developmental disability" as defined in OAR 411-320-0020 and described in
411-320-0080.
(22) "Director" means the
Director of the Department of Human Services, Office of Developmental Disability
Services or Office of Licensing and Regulatory Oversight, or the designee of the
Director.
(23) "Endorsement" means
the authorization to provide program services issued by the Department to a certified
agency that has met the qualification criteria outlined in these rules and the corresponding
program rules.
(24) "Executive Director"
means the person designated by a board of directors or corporate owner of an agency
that is responsible for the administration of the services provided by the agency.
(25) "Founded Report" means
the determination by the Department or Law Enforcement Authority, based on the evidence,
that there is reasonable cause to believe that conduct in violation of the child
abuse statutes or rules has occurred and such conduct is attributable to the person
alleged to have engaged in the conduct.
(26) "Guardian" means the
parent for an individual less than 18 years of age or the person or agency appointed
and authorized by a court to make decisions about services for an individual.
(27) "Independence" means
the extent to which an individual exerts control and choice over his or her own
life.
(28) "Individual" means a
child or an adult with an intellectual or developmental disability applying for,
or determined eligible for Department-funded services. Unless otherwise specified,
references to individual also include the legal or designated representative of
the individual, who has the ability to act for the individual and exercise the rights
of the individual.
(29) "Informal Conference"
means the discussion between the Department and an applicant or an agency that is
held prior to a hearing to address any matters pertaining to the hearing. An administrative
law judge does not participate in an informal conference. The informal conference
may result in resolution of the issue.
(30) "Integration" as defined
in ORS 427.005 means:
(a) Use by individuals with
intellectual or developmental disabilities of the same community resources used
by and available to other people;
(b) Participation by individuals
with intellectual or developmental disabilities in the same community activities
in which people without disabilities participate, together with regular contact
with people without disabilities; and
(c) Residence by individuals
with intellectual or developmental disabilities in homes or home-like settings that
are in proximity to community resources, together with regular contact with people
without disabilities in their community.
(31) "Intellectual Disability"
means "intellectual disability" as defined in OAR 411-320-0020 and described in
411-320-0080.
(32) "ISP" means "Individual
Support Plan". An ISP includes the written details of the supports, activities,
and resources required for an individual to achieve and maintain personal goals
and health and safety. The ISP is developed at least annually to reflect decisions
and agreements made during a person-centered process of planning and information
gathering that is driven by the individual. The ISP reflects services and supports
that are important for the individual to meet the needs of the individual identified
through a functional needs assessment as well as the preferences of the individual
for providers, delivery, and frequency of services and supports. The ISP is the
plan of care for Medicaid purposes and reflects whether services are provided through
a waiver, the Community First Choice state plan, natural supports, or alternative
resources.
(33) "ISP Team" means a team
composed of an individual receiving services and the legal or designated representative
of the individual (as applicable), services coordinator, and others chosen by the
individual, such as providers and family members.
(34) "Legal Representative"
means a person who has the legal authority to act for an individual.
(a) For a child, the legal
representative is the parent of the child unless a court appoints another person
or agency to act as the guardian of the child.
(b) For an adult, the legal
representative is the attorney at law who has been retained by or for the adult,
the power of attorney for the adult, or the person or agency authorized by a court
to make decisions about services for the adult.
(35) "Mandatory Reporter":
(a) Means any public or private
official as defined in OAR 407-045-0260 who:
(A) Comes in contact with
a child with or without an intellectual or developmental disability and has reasonable
cause to believe the child has suffered abuse, or comes in contact with any person
whom the public or private official has reasonable cause to believe abused a child,
regardless of whether or not the knowledge of the abuse was gained in the official
capacity of the public or private official.
(B) While acting in an official
capacity, comes in contact with an adult with an intellectual or developmental disability
and has reasonable cause to believe the adult has suffered abuse, or comes in contact
with any person whom the public or private official has reasonable cause to believe
abused an adult.
(b) Nothing contained in
ORS 40.225 to 40.295 affects the duty to report imposed by this definition, except
that a psychiatrist, psychologist, clergy, attorney, or guardian ad litem appointed
under 419B.231 is not required to report if the communication is privileged
under ORS 40.225 to 40.295.
(36) "Mechanical Restraint"
means any mechanical device, material, object, or equipment attached or adjacent
to the body of an individual that the individual cannot easily remove or easily
negotiate around and that restricts freedom of movement or access to the body of
the individual.
(37) "Medicaid Agency Identification
Number" means the numeric identifier assigned by the Department to an agency following
the enrollment of the agency as described in OAR chapter 411, division 370.
(38) "Medicaid Performing
Provider Number" means the numeric identifier assigned by the Department to an entity
or person following the enrollment of the entity or person to deliver Medicaid funded
services as described in OAR chapter 411, division 370. The Medicaid Performing
Provider Number is used by the rendering provider for identification and billing
purposes associated with service authorizations and payments.
(39) "OIS" means "Oregon
Intervention System". OIS is the system of providing training of elements of positive
behavior support and non-aversive behavior intervention. OIS uses principles of
pro-active support and describes approved protective physical intervention techniques
that are used to maintain health and safety.
(40) "Ownership Interest"
means, as defined in 42 CFR 455.101, the possession of equity in the capital, the
stock, or the profits of the disclosing entity as determined by 42 CFR 455.102.
A person with an ownership or control interest means a person or corporation that:
(a) Has an ownership interest
totaling 5 percent or more in a disclosing entity;
(b) Has an indirect ownership
interest equal to 5 percent or more in a disclosing entity;
(c) Has a combination of
direct and indirect ownership interests equal to 5 percent or more in a disclosing
entity;
(d) Owns an interest of 5
percent or more in any mortgage, deed of trust, note, or other obligation secured
by the disclosing entity if that interest equals at least 5 percent of the value
of the property or assets of the disclosing entity;
(e) Is an officer or director
of a disclosing entity that is organized as a corporation; or
(f) Is a partner in a disclosing
entity that is organized as a partnership.
(41) "Person-Centered Planning":
(a) Means a timely and formal
or informal process driven by an individual, includes people chosen by the individual,
ensures the individual directs the process to the maximum extent possible, and the
individual is enabled to make informed choices and decisions consistent with 42
CFR 441.540.
(b) Person-centered planning
includes gathering and organizing information to reflect what is important to and
for the individual and to help:
(A) Determine and describe
choices about personal goals, activities, services, providers, service settings,
and lifestyle preferences;
(B) Design strategies and
networks of support to achieve goals and a preferred lifestyle using individual
strengths, relationships, and resources; and
(C) Identify, use, and strengthen
naturally occurring opportunities for support at home and in the community.
(c) The methods for gathering
information vary, but all are consistent with the cultural considerations, needs,
and preferences of the individual.
(42) "Positive Behavioral
Theory and Practice" means a proactive approach to behavior and behavior interventions
that:
(a) Emphasizes the development
of functional alternative behavior and positive behavior intervention;
(b) Uses the least intrusive
intervention possible;
(c) Ensures that abusive
or demeaning interventions are never used; and
(d) Evaluates the effectiveness
of behavior interventions based on objective data.
(43) "Productivity" as defined
in ORS 427.005 means regular engagement in income-producing work, preferable competitive
employment with supports and accommodations to the extent necessary, by an individual
that is measured through improvements in income level, employment status, or job
advancement or engagement by an individual in work contributing to a household or
community.
(44) "Program Rules" mean
the rules in:
(a) OAR chapter 411, division
325 for 24-hour residential settings;
(b) OAR chapter 411, division
328 for supported living settings; and
(c) OAR chapter 411, division
345 for employment.
(45) "Program Services" mean
the person-centered services provided in a community-based setting as described
in:
(a) OAR chapter 411, division
325 for 24-hour residential settings;
(b) OAR chapter 411, division
328 for supported living settings; and
(c) OAR chapter 411, division
345 for employment.
(46) "Protective Services"
mean the necessary actions offered to an individual as soon as possible to prevent
subsequent abuse or exploitation of an individual, to prevent self-destructive acts,
and to safeguard the person, property, and funds of the individual.
(47) "Protective Physical
Intervention" means any manual physical holding of, or contact with, an individual
that restricts freedom of movement.
(48) "Provider" means a public
or private community agency or organization that provides recognized developmental
disability services and is certified and endorsed by the Department to provide these
services under these rules and the rules in OAR chapter 411, division 323.
(49) "Revocation" means the
action taken by the Department to rescind:
(a) A certificate to operate
an agency after the Department has determined that the agency is not in compliance
with these rules or the corresponding program rules; or
(b) An endorsement for an
agency to provide program services after the Department has determined that the
agency is not in compliance with these rules or the corresponding program rules.
(50) "Services Coordinator"
means "services coordinator" as defined in OAR 411-320-0020.
(51) "Service Setting" means
the community-based settings as described in:
(a) OAR chapter 411, division
325 for 24-hour residential settings;
(b) OAR chapter 411, division
328 for supported living settings; and
(c) OAR chapter 411, division
345 for employment.
(52) "Staff" means a paid
employee responsible for providing services to an individual whose wages are paid
in part or in full with funds sub-contracted with the CDDP or contracted directly
through the Department.
(53) "Substantiated" means
an abuse investigation has been completed by the Department or the designee of the
Department and the preponderance of the evidence establishes the abuse occurred.
(54) "Suspension" means an
immediate temporary withdrawal of the:
(a) Certificate to operate
an agency after the Department determines that the agency is not in compliance with
these rules or the corresponding program rules; or
(b) Endorsement for an agency
to provide program services after the Department determines that the agency is not
in compliance with these rules or the corresponding program rules.
(55) "These Rules" mean the
rules in OAR chapter 411, division 323.
(56) "Unacceptable Background
Check" means an administrative process that produces information related to the
background of an agency that precludes the agency from being certified or endorsed
for one or more of the following reasons:
(a) Under OAR 407-007-0275,
the agency or any person holding 5 percent or greater ownership interest in the
agency has been found ineligible due to ORS 443.004; or
(b) A background check and
fitness determination has been conducted resulting in a "denied" status as defined
in OAR 407-007-0210.
(57) "Variance" means a temporary
exception from a regulation or provision of these rules that may be granted by the
Department upon written application by the agency.
Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 409.050
Hist.: SPD 12-2011, f. &
cert. ef. 7-1-11; SPD 19-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; SPD
1-2012, f. & cert. ef. 1-6-12; APD 24-2014(Temp), f. & cert. ef. 7-1-14
thru 12-28-14; APD 42-2014, f. 12-26-14, cert. ef. 12-28-14
411-323-0030
Certification
(1) CERTIFICATION. A person, agency,
or governmental unit acting individually or jointly with any other person, agency,
or governmental unit intending to provide program services as defined in OAR 411-323-0020
must be certified by the Department under these rules before establishing, conducting,
maintaining, managing, or operating an agency.
(a) Certificates are not
transferable.
(b) The Department issues
or renews a certificate to an agency found to be in compliance with these rules
and the corresponding program rules. The certificate is effective for five years
from the date issued unless sooner revoked or suspended.
(c) If an agency fails to
provide complete, accurate, and truthful information during the application or renewal
process, the Department may delay initial certification, deny the application, or
revoke or refuse to renew the application for certification.
(d) For the purpose of certification,
any applicant or person with an ownership interest in an agency is considered responsible
for acts occurring during, and relating to, the operation of the agency.
(e) The Department may consider
the background and operating history of the applicant and each person with an ownership
interest when determining whether to issue or renew a certificate.
(f) A review of the agency
is conducted by the Department prior to the issuance or renewal of a certificate.
(2) CURRENT AGENCY CERTIFICATION.
(a) All agencies providing
program services as of July 1, 2011 are certified for five years unless the certificate
is sooner revoked or suspended.
(b) Agencies licensed or
certified under OAR chapter 411, division 054 for residential care and assisted
living facilities, OAR chapter 309, division 035 for residential treatment facilities
for people who are mentally or emotionally disturbed, OAR chapter 413, division
215 for child welfare private child caring agencies, or OAR chapter 416, division
550 for youth offender treatment foster care do not require additional certification
as an agency under these rules to provide program services. Current license or certification
is considered sufficient demonstration of ability to:
(A) Recruit, hire, supervise,
and train qualified staff;
(B) Provide services according
to an ISP; and
(C) Develop and implement
operating policies and procedures required for managing an agency and delivering
services, including provisions for safeguarding individuals receiving services.
(3) INITIAL CERTIFICATION.
Notwithstanding section (2) of this rule, an applicant intending to provide program
services as defined in OAR 411-323-0020 must apply for an initial certificate and
demonstrate to the satisfaction of the Department that the applicant is in compliance
with these rules and the corresponding program rules.
(a) The applicant must submit
an application to the Department at least 90 days prior to the proposed date of
provision of program services to individuals. The completed application must be
on a form provided by the Department and must include all information requested
by the Department.
(b) At a minimum, the applicant
must provide:
(A) A copy of any management
agreements or contracts relative to the operation and ownership of the agency;
(B) A financial plan that
includes financial statements indicating capital and the financial plan developed
to assure sustainability, partnerships, loans, and any other financial assistance;
or
(C) As required by 42 CFR
455.104, the name, date of birth, and social security number for each person currently
serving as the Board of Directors for the agency, and as changes are made.
(c) The applicant must develop
a plan identifying the scope of program services the applicant intends to provide
and request endorsement for each program service as described in OAR 411-323-0035.
(d) The applicant must demonstrate
proof of liability and operational insurance coverage.
(A) The agency must, at the
expense of the agency, maintain in effect with respect to all occurrences taking
place during the certification period, liability and operational insurance as described
in the contract the agency has with the Department including, but not limited to,
automobile liability insurance, comprehensive or commercial general liability insurance,
and workers' compensation coverage if required.
(B) The agency must name
the State of Oregon, Department of Human Services and the divisions, officers, and
employees of the Department as additionally insured on any insurance policies required
by their contract with respect to agency activities being performed under the certification
of the agency. Such insurance must be issued by an insurance company licensed to
do business in the state of Oregon and must contain a 30 day notice of cancellation
endorsement.
(C) The agency must forward
certificates of insurance indicating coverage to the Department as required by this
rule.
(D) In the event of unilateral
cancellation or restriction by the insurance company of any insurance coverage required
by their contract, the agency must immediately notify the Department orally of the
cancellation or restriction and must confirm the cancellation or restriction in
writing within three days of receiving notification from the insurance company.
(4) CERTIFICATE RENEWAL.
(a) To renew a certificate,
the agency must:
(A) Submit an application
to the Department at least 90 days prior to the expiration date of the existing
certificate for the agency. The completed application must be on a form provided
by the Department and must include all information requested by the Department.
At a minimum, the agency must provide:
(i) A copy of any management
agreements or contracts relative to the operation and ownership of the agency;
(ii) A financial plan that
includes audits for the last two years as described in section (5) of this rule;
and
(iii) As required by 42 CFR
455.104, the name, date of birth, and social security number for each person currently
serving as the Board of Directors for the agency, and as changes are made.
(B) Identify the scope of
program services the agency provides and provide proof of endorsement for each program
service as described in OAR 411-323-0035;
(C) Demonstrate to the satisfaction
of the Department that the agency is in compliance with these rules and the corresponding
program rules; and
(D) Demonstrate proof of
continued liability and operational insurance coverage as described in section (3)(d)
of this rule.
(b) An application for renewal
filed with the Department before the date of expiration extends the effective date
of the existing certificate until the Department takes action upon the application
for renewal.
(c) If the renewal application
is not submitted to the Department prior to the date the certificate expires, the
agency is considered a non-certified Medicaid agency and is subject to termination
of their Medicaid Agency Identification Number.
(5) FINANCIAL AUDITS. Agencies
certified and endorsed to provide program services must obtain an audit at least
once during the biennium. On alternating years, the agency may obtain an audit review
as defined in OAR 411-323-0020 or another financial audit. The audit or the audit
review must be submitted to the Department within 90 days of the end of the fiscal
year.
(6) CERTIFICATE EXPIRATION.
Unless revoked, suspended, or terminated earlier, each certificate to operate as
a Medicaid agency expires five years following the date of issuance.
(7) CERTIFICATE TERMINATION.
The certificate automatically terminates on the date agency operation is discontinued
or if there is a change in ownership.
(8) RETURN OF CERTIFICATE.
The certificate must be returned to the Department immediately upon suspension or
revocation of the certificate or when agency operation is discontinued.
(9) CHANGE OF OWNERSHIP,
LEGAL ENTITY, LEGAL STATUS, OR MANAGEMENT CORPORATION.
(a) The agency must notify
the Department in writing of any pending change in the ownership, legal entity,
legal status, or management corporation of the agency.
(b) A new certificate is
required upon a change in the ownership, legal entity, legal status, or management
corporation of the agency. The agency must submit an application as described in
section (3) of this rule to the Department at least 30 days prior to a change in
ownership, legal entity, legal status, or management corporation.
(10) CERTIFICATE ADMINISTRATIVE
SANCTION. An administrative sanction may be imposed for non-compliance with these
rules. An administrative sanction on a certificate includes one or more of the following
actions:
(a) A condition as described
in section (11) of this rule;
(b) Denial, revocation, or
refusal to renew a certificate as described in section (12) of this rule; or
(c) Immediate suspension
of a certificate as described in section (13) of this rule.
(11) CERTIFICATE CONDITIONS.
(a) The Department may attach
conditions to a certificate that limit, restrict, or specify other criteria for
operation of the agency. The type of condition attached to a certificate must directly
relate to the risk of harm or potential risk of harm to individuals.
(b) The Department may attach
a condition to a certificate upon a finding that:
(A) Information on the application
or initial inspection requires a condition to protect the health, safety, or welfare
of individuals;
(B) A threat to the health,
safety, or welfare of an individual exists;
(C) There is reliable evidence
of abuse, neglect, or exploitation; or
(D) The agency is not being
operated in compliance with these rules or the corresponding program rules.
(c) Conditions that the Department
may impose on a certificate include, but are not limited to:
(A) Restricting the total
number of individuals to whom an agency may provide services;
(B) Restricting the total
number of individuals to whom an agency may provide program services based upon
the capability and capacity of the agency and staff to meet the health and safety
needs of all individuals;
(C) Restricting the type
of support and services the agency may provide to individuals based upon the capability
and capacity of the agency and staff to meet the health and safety needs of all
individuals;
(D) Requiring additional
staff or staff qualifications;
(E) Requiring additional
training;
(F) Restricting the agency
from allowing a person on the premises who may be a threat to the health, safety,
or welfare of an individual;
(G) Requiring additional
documentation; or
(H) Restricting admissions.
(d) NOTICE OF CERTIFICATE
CONDITIONS. The Department issues a written notice to the agency when the Department
imposes conditions on the certificate of the agency. The written notice of certificate
conditions includes the conditions imposed by the Department, the reason for the
conditions, and the opportunity to request a hearing under ORS chapter 183. Conditions
take effect immediately upon issuance of the written notice of certificate conditions
or at a later date as indicated on the notice and are a Final Order of the Department
unless later rescinded through the hearing process. The conditions imposed remain
in effect until the Department has sufficient cause to believe the situation that
warranted the condition has been remedied.
(e) HEARING. The agency may
request a hearing in accordance with ORS chapter 183 and this rule upon receipt
of written notice of certificate conditions. The request for a hearing must be in
writing.
(A) The agency must request
a hearing within 21 days from the receipt of the written notice of certificate conditions.
(B) In addition to, or in-lieu
of a hearing, an agency may request an administrative review as described in section
(14) of this rule. The request for an administrative review must be in writing.
The administrative review does not diminish the right of the agency to a hearing.
(f) The agency may send a
written request to the Department to remove a condition if the agency believes the
situation that warranted the condition has been remedied.
(g) Conditions must be posted
with the certificate in a prominent location and be available for inspection at
all times.
(12) CERTIFICATE DENIAL,
REFUSAL TO RENEW, OR REVOCATION.
(a) The Department may deny,
refuse to renew, or revoke a certificate when the Department finds the agency or
any person holding 5 percent or greater ownership interest in the agency:
(A) Demonstrates substantial
failure to comply with these rules or the corresponding program rules such that
the health, safety, or welfare of individuals is jeopardized and the agency fails
to correct the non-compliance within 30 days from the receipt of written notice
of non-compliance;
(B) Has demonstrated a substantial
failure to comply with these rules or the corresponding program rules such that
the health, safety, or welfare of individuals is jeopardized;
(C) Has been convicted of
any crime that would have resulted in an unacceptable background check upon hiring
or authorization of program services;
(D) Has been convicted of
a misdemeanor associated with the operation of an agency or program services;
(E) Falsifies information
required by the Department to be maintained or submitted regarding program services,
agency finances, or funds belonging to the individuals;
(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
current Centers for Medicare and Medicaid Services list of excluded or debarred
providers maintained by the Office of the Inspector General.
(b) NOTICE OF CERTIFICATE
DENIAL, REVOCATION, OR REFUSAL TO RENEW. The Department may issue a notice of denial,
refusal to renew, or revocation of a certificate following a Department finding
that there is a substantial failure to comply with these rules or the corresponding
program rules such that the health, safety, or welfare of individuals is jeopardized,
or that one or more of the events listed in subsection (a) of this section has occurred.
(c) HEARING. An applicant
for a certificate or a certified agency, as applicable, may request a hearing in
accordance with ORS chapter 183, this rule, and ORS 443.440 for a 24-hour residential
setting, upon written notice from the Department of denial, refusal to renew, or
revocation of a certificate. The request for a hearing must be in writing.
(A) DENIAL. The applicant
must request a hearing within 60 days from the receipt of the written notice of
denial.
(B) REFUSAL TO RENEW. The
agency must request a hearing within 60 days from the receipt of the written notice
of refusal to renew.
(C) REVOCATION.
(i) Notwithstanding subsection
(ii) of this section, the agency must request a hearing within 21 days from the
receipt of the written notice of revocation.
(I) In addition to, or in-lieu
of a hearing, the agency may request an administrative review as described in section
(14) of this rule. The request for an administrative review must be in writing.
(II) The administrative review
does not diminish the right of the agency to a hearing.
(ii) 24-HOUR RESIDENTIAL
SETTINGS. An agency endorsed to provide services in a 24-hour residential setting
as described in OAR chapter 411, division 325 must request a hearing within 10 days
from the receipt of the written notice of revocation.
(13) IMMEDIATE SUSPENSION
OF CERTIFICATE.
(a) 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
agency, immediately suspend a certificate without a pre-suspension hearing and the
agency may not continue operating.
(b) HEARING. The agency may
request a hearing in accordance with ORS Chapter 183, this rule, and 443.440 for
a 24-hour residential setting, upon written notice from the Department of the immediate
suspension of the certificate. The request for a hearing must be in writing.
(A) Notwithstanding subsection
(B) of this section, the agency must request a hearing within 21 days from the receipt
of the written notice of suspension.
(i) In addition to, or in-lieu
of a hearing, the agency may request an administrative review as described in section
(14) of this rule. The request for an administrative review must be in writing.
(ii) The administrative review
does not diminish the right of the agency to a hearing.
(B) 24-HOUR RESIDENTIAL SETTINGS.
An agency endorsed to provide services in a 24-hour residential setting as described
in OAR chapter 411, division 325 must request a hearing within 10 days from the
receipt of the written notice of suspension.
(14) ADMINISTRATIVE REVIEW.
(a) Notwithstanding subsection
(b) of this section, the agency, in addition to the right to a hearing, may request
an administrative review. The request for an administrative review must be in writing.
(b) 24-HOUR RESIDENTIAL SETTINGS.
An agency endorsed to provide services in a 24-hour residential setting as described
in OAR chapter 411, division 325 may not request an administrative review for revocation
or suspension. An agency endorsed to provide services in a 24-hour residential setting
as described in OAR chapter 411, division 325 may request an administrative review
for imposition of conditions.
(c) The Department must receive
a written request for an administrative review within 10 business days from the
receipt of the notice of suspension, revocation, or imposition of conditions. The
agency may submit, along with the written request for an administrative review,
any additional written materials the agency wishes to have considered during the
administrative review.
(d) The determination of
the administrative review is issued in writing within 10 business days from the
receipt of the written request for an administrative review, or by a later date
as agreed to by the agency.
(e) The agency, notwithstanding
subsection (b) of this section, may request a hearing if the decision of the Department
is to affirm the suspension, revocation, or condition. The request for a hearing
must be in writing. The Department must receive the written request for a hearing
within 21 days from the receipt of the original written notice of suspension, revocation,
or imposition of conditions.
(15) INFORMAL CONFERENCE.
Unless an administrative review has been completed as described in section (14)
of this rule, an applicant or agency requesting a hearing may have an informal conference
with the Department.
Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 409.050
Hist.: SPD 12-2011, f. &
cert. ef. 7-1-11; SPD 19-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; SPD
1-2012, f. & cert. ef. 1-6-12; APD 24-2014(Temp), f. & cert. ef. 7-1-14
thru 12-28-14; APD 42-2014, f. 12-26-14, cert. ef. 12-28-14
411-323-0035
Endorsement
(1) ENDORSEMENT REQUIRED. A person,
agency, or governmental unit acting individually or jointly with any other person,
agency, or governmental unit intending to provide program services as defined in
OAR 411-323-0020 must be endorsed by the Department under these rules before establishing,
conducting, maintaining, managing, or operating a service setting.
(a) Endorsements are not
transferable or applicable to any other service setting. Separate endorsements are
required for each program service provided by a certified agency. A certified agency
intending to provide additional program services once initial endorsement has been
issued must apply for an additional endorsement as described in section (3) of this
rule.
(b) Each geographic location
where program services are provided must be reported by the agency to the Department
and to the corresponding CDDP of the geographic location as described in this rule.
(c) The Department issues
or renews an endorsement to a certified agency found to be in compliance with these
rules and the corresponding program rules. The effective date for each endorsement
corresponds with the effective date for the certification of the agency unless sooner
revoked or suspended.
(d) If a certified agency
fails to provide complete, accurate, and truthful information during the application
or renewal process, the Department may delay initial endorsement, deny the application,
or revoke or refuse to renew the endorsement for program services.
(e) For the purpose of endorsement,
any applicant or person with an ownership interest in a certified agency is considered
responsible for acts occurring during, and relating to, the operation of the agency.
(f) The Department may consider
the background and operating history of the applicant and each person with an ownership
interest when determining whether to issue or renew an endorsement.
(g) A review of the certified
agency is conducted by the Department prior to the issuance or renewal of an endorsement.
(2) CURRENT AGENCY ENDORSEMENT.
(a) All certified agencies
providing program services as of July 1, 2011 are endorsed for five years for the
program services being provided as of July 1, 2011 unless the endorsement is sooner
revoked or suspended.
(b) A certified agency intending
to provide additional program services after July 1, 2011 must apply for endorsement
as described in section (3) of this rule.
(c) Agencies licensed or
certified under OAR chapter 411, division 054 for residential care and assisted
living facilities, OAR chapter 309, division 035 for residential care treatment
facilities for individuals who are mentally or emotionally disturbed, OAR chapter
413, division 215 for child welfare private child caring agencies, or OAR chapter
416, division 550 for youth offender treatment foster care do not require additional
endorsement as an agency under these rules to provide program services.
(3) INITIAL ENDORSEMENT.
(a) Notwithstanding section
(2) of this rule, a certified agency intending to provide program services as defined
in OAR 411-323-0020 must apply for initial endorsement and demonstrate to the satisfaction
of the Department that the agency is in compliance with these rules and the corresponding
program rules.
(b) The certified agency
must submit an application to the Department at least 90 days prior to providing
program services that identifies the program services that the certified agency
intends to provide and all geographic locations where program services are to be
provided.
(A) The completed application
must be on a form provided by the Department and must include all information requested
by the Department.
(B) Each licensed site or
geographic location where direct services are to be delivered must be assigned a
Medicaid Performing Provider Number by the Department as described in OAR chapter
411, division 370.
(4) ENDORSEMENT RENEWAL.
(a) To renew endorsement,
the certified agency must:
(A) Submit an application
to the Department at least 90 days prior to the expiration date of the existing
endorsement for the certified agency. The completed application must identify the
program services that the certified agency provides and all geographic locations
where program services are provided. The completed application must be on a form
provided by the Department and must include all information requested by the Department.
(B) Demonstrate to the satisfaction
of the Department that the certified agency is in compliance with these rules and
the corresponding program rules.
(b) Only existing program
services are endorsed on renewal. A certified agency requesting to provide additional
program services must apply for initial endorsement as described in section (3)
of this rule.
(c) An application for renewal
filed with the Department before the date of expiration extends the effective date
of the existing endorsement until the Department takes action upon the application
for renewal.
(d) A certified agency may
not provide program services if a renewal application is not submitted to the Department
prior to the date the endorsement expires.
(e) Renewal of endorsements
for program services is contingent upon the successful renewal of the certificate
of the agency.
(5) EXISTING ENDORSEMENT
— ADDING A GEOGRAPHIC LOCATION. Adding a geographic location to an existing
endorsement must be reported by the agency to the Department and to the corresponding
CDDP of the geographic location. The agency must report the additional geographical
location on a form provided by the Department at least 30 days prior to providing
program services at the additional geographic location.
(6) ENDORSEMENT EXPIRATION.
Unless revoked, suspended, or terminated earlier, the effective date of each endorsement
corresponds with the effective date of the certification of the agency.
(7) ENDORSEMENT TERMINATION.
Endorsement automatically terminates on the date program services are discontinued
or agency certification is terminated.
(8) CHANGE OF CERTIFICATION.
New endorsement is required upon a change of the certification of an agency. The
recertified agency must submit an application for endorsement as described in section
(3) of this rule to the Department at least 30 days prior to a change of the certification
of the agency including, but not limited to, a change in ownership, legal entity,
legal status, or management corporation.
(9) ENDORSEMENT ADMINISTRATIVE
SANCTION. An administrative sanction may be imposed for non-compliance with these
rules. An administrative sanction on an endorsement includes one or more of the
following actions:
(a) A condition as described
in section (10) of this rule:
(b) Denial, revocation, or
refusal to renew an endorsement as described in section (11) of this rule; or
(c) Immediate suspension
of an endorsement as described in section (12) of this rule.
(10) ENDORSEMENT CONDITIONS.
(a) The Department may attach
conditions to an endorsement that limit, restrict, or specify other criteria for
program services. The type of condition attached to an endorsement must directly
relate to a risk of harm or potential risk of harm to individuals.
(b) The Department may attach
a condition to an endorsement upon a finding that:
(A) Information on the application
or initial inspection requires a condition to protect the health, safety, or welfare
of individuals;
(B) A threat to the health,
safety, or welfare of an individual exists;
(C) There is reliable evidence
of abuse, neglect, or exploitation; or
(D) The agency is not being
operated in compliance with these rules or the corresponding program rules.
(c) Conditions that the Department
may impose on an endorsement include, but are not limited to:
(A) Restricting the total
number of individuals to whom an agency may provide services;
(B) Restricting the total
number of individuals to whom an agency may provide program services based upon
the capability and capacity of the agency and staff to meet the health and safety
needs of all individuals;
(C) Restricting the type
of support and services the agency may provide to individuals based upon the capability
and capacity of the agency and staff to meet the health and safety needs of all
individuals;
(D) Requiring additional
staff or staff qualifications;
(E) Requiring additional
training;
(F) Restricting the agency
from allowing a person on the premises who may be a threat to the health, safety,
or welfare of an individual;
(G) Requiring additional
documentation; or
(H) Restricting admissions.
(d) NOTICE OF ENDORSEMENT
CONDITIONS. The Department issues a written notice to the agency when the Department
imposes conditions on the endorsement of program services. The written notice of
endorsement conditions includes the conditions imposed by the Department, the reason
for the conditions, and the opportunity to request a hearing under ORS chapter 183.
Conditions take effect immediately upon issuance of the written notice of conditions
or at a later date as indicated on the notice and are a Final Order of the Department
unless later rescinded through the hearing process. The conditions imposed remain
in effect until the Department has sufficient cause to believe the situation that
warranted the condition has been remedied.
(e) HEARING. The agency may
request a hearing in accordance with ORS chapter 183 and this rule upon written
notice of endorsement conditions. The request for a hearing must be in writing.
(A) The agency must request
a hearing within 21 days from the receipt of the written notice of conditions.
(B) In addition to, or in
lieu of a hearing, the agency may request an administrative review as described
in section (13) of this rule. The request for an administrative review must be in
writing. The administrative review does not diminish the right of the agency to
a hearing.
(f) The agency may send a
written request to the Department to remove a condition if the agency believes the
situation that warranted the condition has been remedied.
(g) Conditions must be posted
with the endorsement in a prominent location and be available for inspection at
all times.
(11) ENDORSEMENT DENIAL,
REFUSAL TO RENEW, OR REVOCATION.
(a) The Department may deny,
refuse to renew, or revoke an endorsement when the Department finds the agency or
any person holding 5 percent or greater ownership interest in the agency:
(A) Fails to maintain agency
certification as described in OAR 411-323-0030;
(B) Demonstrates substantial
failure to comply with these rules or the corresponding program rules such that
the health, safety, or welfare of individuals is jeopardized and the agency fails
to correct the non-compliance within 30 days from the receipt of the written notice
of non-compliance;
(C) Has demonstrated a substantial
failure to comply with these rules or the corresponding program rules such that
the health, safety, or welfare of individuals is jeopardized;
(D) Has been convicted of
any crime that would have resulted in an unacceptable background check upon hiring
or authorization of services;
(E) Has been convicted of
a misdemeanor associated with the operation of an agency or program services;
(F) Falsifies information
required by the Department to be maintained or submitted regarding program services,
agency finances, or funds belonging to the individuals;
(G) 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
(H) Has been placed on the
list of excluded or debarred providers maintained by the Office of the Inspector
General.
(b) NOTICE OF ENDORSEMENT
DENIAL, REFUSAL TO RENEW, OR REVOCATION. The Department may issue a notice of denial,
refusal to renew, or revocation of an endorsement following a Department finding
that there is a substantial failure to comply with these rules or the corresponding
program rules such that the health, safety, or welfare of individuals is jeopardized,
or that one or more of the events listed in subsection (a) of this section has occurred.
(c) HEARING. An applicant
for an endorsement or an endorsed agency, as applicable, may request a hearing in
accordance with ORS chapter 183, this rule, and ORS 443.440 for a 24-hour residential
setting, upon written notice from the Department of denial, refusal to renew, or
revocation of an endorsement. The request for a hearing must be in writing.
(A) DENIAL. The applicant
must request a hearing within 60 days from the receipt of the written notice of
denial.
(B) REFUSAL TO RENEW. The
agency must request a hearing within 60 days from the receipt of the written notice
of refusal to renew.
(C) REVOCATION.
(i) Notwithstanding subsection
(ii) of this section, the agency must request a hearing within 21 days from the
receipt of the written notice of revocation.
(I) In addition to, or in
lieu of a hearing, an agency may request an administrative review as described in
section (13) of this rule. The request for an administrative review must be in writing.
(II) The administrative review
does not diminish the right of the agency to a hearing.
(ii) 24-HOUR RESIDENTIAL
SETTINGS. An agency endorsed to provide services in a 24-hour residential setting
as described in OAR chapter 411, division 325 must request a hearing within 10 days
from the receipt of the written notice of revocation.
(12) IMMEDIATE SUSPENSION
OF ENDORSEMENT.
(a) 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
agency, immediately suspend an endorsement without a pre-suspension hearing and
the program service may not continue operating.
(b) HEARING. The agency may
request a hearing in accordance with ORS chapter 183, this rule, and ORS 443.440
for a 24-hour residential setting, upon written notice from the Department of the
immediate suspension of the endorsement. The request for a hearing must be in writing.
(A) Notwithstanding subsection
(B) of this section, the endorsed agency must request a hearing within 21 days from
the receipt of the written notice of suspension.
(i) In addition to, or in-lieu
of a hearing, the agency may request an administrative review as described in section
(13) of this rule. The request for an administrative review must be in writing.
(ii) The administrative review
does not diminish the right of the agency to a hearing.
(B) 24-HOUR RESIDENTIAL SETTINGS.
An agency endorsed to provide services in a 24-hour residential setting as described
in OAR chapter 411, division 325 must request a hearing within 10 days from the
receipt of the written notice of suspension.
(13) ADMINISTRATIVE REVIEW.
(a) Notwithstanding subsection
(b) of this section, the agency, in addition to the right to a hearing, may request
an administrative review. The request for an administrative review must be in writing.
(b) 24-HOUR RESIDENTIAL SETTINGS.
An agency endorsed to provide services in a 24-hour residential setting as described
in OAR chapter 411, division 325 may not request an administrative review for revocation
or suspension. An agency endorsed to provide services in a 24-hour residential setting
as described in OAR chapter 411, division 325 may request an administrative review
for imposition of conditions.
(c) The Department must receive
a written request for an administrative review within 10 business days from the
receipt of the notice of suspension, revocation, or imposition of conditions. The
agency may submit, along with the written request for an administrative review,
any additional written materials the agency wishes to have considered during the
administrative review.
(d) The determination of
the administrative review is issued in writing within 10 business days from the
receipt of the written request for an administrative review, or by a later date
as agreed to by the agency.
(e) The agency, notwithstanding
subsection (b) of this section, may request a hearing if the decision of the Department
is to affirm the suspension, revocation, or condition. The request for a hearing
must be in writing. The Department must receive the written request for a hearing
within 21 days from the receipt of the original written notice of suspension, revocation,
or imposition of conditions.
(14) INFORMAL CONFERENCE.
Unless an administrative review has been completed as described in subsection (13)
of this rule, an applicant or agency requesting a hearing may have an informal conference
with the Department.
Stat. Auth. ORS 409.050
Stats. Implemented: ORS 409.050
Hist.: SPD 19-2011(Temp),
f. & cert. ef. 7-1-11 thru 12-28-11; SPD 1-2012, f. & cert. ef. 1-6-12;
APD 24-2014(Temp), f. & cert. ef. 7-1-14 thru 12-28-14; APD 42-2014, f. 12-26-14,
cert. ef. 12-28-14
411-323-0040
Inspections and Investigations
(1) Agencies certified and endorsed
under these rules must allow the following types of investigations and inspections:
(a) Quality assurance, onsite
inspections, and certificate renewal;
(b) Complaint investigations;
and
(c) Abuse investigations.
(2) The Department, the designee
of the Department, or proper authority shall perform all inspections and investigations.
(3) Any inspection or investigation
may be unannounced.
(4) All documentation and
written reports required by these rules must be:
(a) Open to inspection and
investigation by the Department, the designee of the Department, or proper authority;
and
(b) Submitted to, or be made
available for review by, the Department within the time allotted.
(5) When abuse is alleged
or death of an individual has occurred and a law enforcement agency, the Department,
or the designee of the Department has determined to initiate an investigation, the
agency may not conduct an internal investigation without prior authorization from
the Department. For the purposes of this section, an "internal investigation" is
defined as:
(a) Conducting interviews
of 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:
(A) If there is reasonable
cause to believe that abuse has occurred;
(B) If the alleged victim
is in danger or in need of immediate protective services;
(C) If there is reason to
believe that a crime has been committed; or
(D) What, if any, immediate
personnel actions must be taken to assure individual safety.
(6) The Department or the
designee of the Department shall conduct abuse investigations as described in OAR
407-045-0250 to 407-045-0360 and shall complete an abuse investigation and protective
services report according to OAR 407-045-0320.
(7) Upon completion of the
abuse investigation by the Department, the designee of the Department, or a law
enforcement agency, the agency may conduct an investigation without further Department
approval to determine if any personnel actions are necessary.
(8) Upon completion of the
abuse investigation and protective services report, according to OAR 407-045-0330,
the sections of the report that are public records and not exempt from disclosure
under the public records law shall be provided to the appropriate agency. The agency
must implement the actions necessary within the deadlines listed to prevent further
abuse as stated in the report.
(9) The agency must submit
a plan of correction to the Department for any noncompliance found during an inspection
under this rule.
Stat. Auth. ORS 409.050 &
410.070
Stats. Implemented: ORS 409.050 &
410.070
Hist.: SPD 12-2011, f. &
cert. ef. 7-1-11; SPD 19-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; SPD
1-2012, f. & cert. ef. 1-6-12; APD 42-2014, f. 12-26-14, cert. ef. 12-28-14
411-323-0050
Agency Management and Personnel Practices
(1) NON-DISCRIMINATION. The agency must
comply with all applicable state and federal statutes, rules, and regulations in
regard to non-discrimination in employment policies and practices.
(2) BASIC PERSONNEL POLICIES
AND PROCEDURES. The agency must have in place and implement personnel policies and
procedures that address suspension, increased supervision, or other appropriate
disciplinary employment procedures when a staff member, provider, or subcontractor,
including relief providers and volunteers, has been identified as an accused person
in an abuse investigation or when an allegation of abuse has been substantiated.
(3) PROHIBITION AGAINST RETALIATION.
The agency or provider may not retaliate against any staff member or subcontractor
including relief providers and volunteers that report in good faith suspected abuse
or retaliate against the individual with respect to any report. An accused person
may not self-report solely for the purpose of claiming retaliation.
(a) Any agency, provider,
or person that retaliates against any person because of a report of suspected abuse
or neglect is liable according to ORS 430.755 in a private action to the reporting
person for actual damages and, in addition, is subject to a penalty up to $1000,
notwithstanding any other remedy provided by law.
(b) Any adverse action is
evidence of retaliation if taken within 90 days of a report of abuse. For purposes
of this section, "adverse action" means any action taken by an agency, provider,
or person involved in a report against the person making the report or against the
individual because of the report and includes, but is not limited to:
(A) Discharge or transfer
from the agency, except for clinical reasons;
(B) Discharge from or termination
of employment;
(C) Demotion or reduction
in remuneration for program services; or
(D) Restriction or prohibition
of access to the agency or the individuals receiving services by the agency.
(4) MANDATORY ABUSE REPORTING
PERSONNEL POLICIES AND PROCEDURES.
(a) Any staff, providers,
substitute caregivers, independent contractors, and volunteers are mandatory reporters.
(b) The agency must notify
all staff, providers, substitute caregivers, independent contractors, and volunteers
of mandatory reporting status at least annually on forms provided by the Department.
(c) The agency must provide
all staff, providers, substitute caregivers, independent contractors, and volunteers
with a Department produced card regarding abuse reporting status and abuse reporting
requirements.
(d) Agencies providing services
to adults must report suspected abuse to the CDDP where the adult resides. A report
must also be made to law enforcement if there is reason to believe a crime has been
committed.
(e) Agencies providing services
to children must report suspected abuse to the Department or law enforcement in
the county where the child resides.
(5) APPLICATION FOR EMPLOYMENT.
An application for employment at the agency must inquire whether an applicant has
had any founded reports of child abuse or substantiated adult abuse.
(6) BACKGROUND CHECKS. Any
staff, volunteer, provider, relief care provider, crisis provider, advisor, or any
subject individual defined by OAR 407-007-0210, including staff who are not identified
in this rule but use public funds intended for the operation of an agency, who has
or shall have contact with an individual in services, must have an approved background
check in accordance with 407-007-0200 to 407-007-0370 and ORS 181.534.
(a) Effective July 28, 2009,
the agency may not use public funds to support, in whole or in part, any person
described above in section (6) of this rule in any capacity who has been convicted
of any of the disqualifying crimes listed in OAR 407-007-0275.
(b) Subsection (a) of this
section does not apply to agency staff who were hired prior to July 28, 2009 that
remain in the current position for which the staff member was hired.
(c) Any person described
above in section (6) of this rule must self-report any potentially disqualifying
condition as described in OAR 407-007-0280 and OAR 407-007-0290. The person must
notify the Department or the designee of the Department within 24 hours.
(7) EXECUTIVE DIRECTOR QUALIFICATIONS.
The agency must be operated under the supervision of an Executive Director who has
a minimum of a bachelor's degree and two years of experience, including supervision,
in intellectual or developmental disabilities, mental health, rehabilitation, social
services, or a related field. Six years of experience in the identified fields may
be substituted for a degree.
(8) GENERAL STAFF QUALIFICATIONS.
Any staff member providing services to individuals must meet the following criteria:
(a) Be at least 18 years
of age;
(b) Consent to and pass a
background check by the Department as described in OAR 407-007-0200 to 407-007-0370
and section (6) of this rule, and be free of convictions or founded allegations
of abuse by the appropriate agency including, but not limited to, the Department;
(A) Background rechecks must
be performed biannually, or as needed, if a report of criminal activity has been
received by the Department.
(B) PORTABILITY OF BACKGROUND
CHECK APPROVAL. A subject individual as defined in OAR 407-007-0210 may be approved
for one position to work in multiple locations within the qualified entity as defined
in OAR 407-007-0210. The Background Check Request form must be completed by the
subject individual to show intent to work at various locations.
(c) If hired on or after
July 28, 2009, not have been convicted of any of the disqualifying crimes listed
in OAR 407-007-0275:
(d) Be legally eligible to
work in the United States;
(e) Hold a current, valid,
and unrestricted professional license or certification where services and supervision
requires specific professional education, training, and skill;
(f) Understand requirements
of maintaining confidentiality and safeguarding individual information;
(g) Not be on the list of
excluded or debarred providers maintained by the Office of the Inspector General;
(h) Be literate and capable
of understanding written and oral orders;
(i) Be able to communicate
with individuals, health care providers, service coordinators, and appropriate others;
(j) Be able to respond to
emergency situations at all times;
(k) Be certified in CPR and
First Aid by a recognized training agency within 90 days of employment;
(l) Receive 12 hours of job-related
in-service training annually;
(m) Have clear job responsibilities
as described in a current signed and dated job description; and
(n) If transporting individuals,
have a valid license to drive and vehicle insurance in compliance with the laws
of the Department of Motor Vehicles.
(9) PERSONNEL FILES AND QUALIFICATION
RECORDS. The agency must maintain up-to-date written job descriptions for all staff
as well as a file available to the Department or the designee of the Department
for inspection that includes written documentation of the following for each staff
member:
(a) Written documentation
that references and qualifications were checked;
(b) Written documentation
by the Department of an approved background check as defined in OAR 407-007-0210;
(c) Written documentation
of staff notification of mandatory abuse training and reporter status prior to supervising
individuals and annually thereafter;
(d) Written documentation
of any complaints filed against the staff member and the results of the complaint
process, including, if any, disciplinary action;
(e) Written documentation
of any founded report of child abuse or substantiated adult abuse;
(f) Written documentation
of 12 hours of job-related in-service training annually;
(g) Documentation that the
staff member has been certified in CPR and First Aid by a recognized training agency
within 90 days of employment and that certification is kept current; and
(h) For staff operating vehicles
that transport individuals, documentation of a valid license to drive and proof
of vehicle insurance in compliance with the laws of the Department of Motor Vehicles.
(10) DISSOLUTION OF AN AGENCY.
A representative of the governing body or owner of an agency must notify the Department
in writing 30 days prior to the dissolution of the agency and make appropriate arrangements
for the transfer of individual records.
Stat. Auth. ORS 409.050
Stats. Implemented: ORS 409.050
Hist.: SPD 12-2011, f. &
cert. ef. 7-1-11; SPD 19-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; SPD
1-2012, f. & cert. ef. 1-6-12; APD 24-2014(Temp), f. & cert. ef. 7-1-14
thru 12-28-14; APD 42-2014, f. 12-26-14, cert. ef. 12-28-14
411-323-0060
Policies and Procedures
(1) INDIVIDUAL RIGHTS.
(a) The agency must have
and implement written policies and procedures that protect the rights of individuals
described in subsection (d) of this section and encourage and assist individuals
to understand and exercise these rights.
(b) Upon entry and request
and annually thereafter, the individual rights described in subsection (d) of this
section must be provided to an individual and the legal or designated representative
of the individual.
(c) The individual rights
described in this rule apply to all individuals eligible for or receiving developmental
disability services. A parent or guardian may place reasonable limitations on the
rights of a child.
(d) While receiving developmental
disability services, an individual has the right to:
(A) Be free and protected
from abuse or neglect and to report any incident of abuse or neglect without being
subject to retaliation;
(B) Be free from seclusion,
unauthorized training or treatment, protective physical intervention, chemical restraint,
or mechanical restraint and assured that medication is administered only for the
clinical needs of the individual as prescribed by a health care provider unless
an imminent risk of physical harm to the individual or others exists and only for
as long as the imminent risk continues;
(C) Individual choice for
an adult to consent to or refuse treatment unless incapable and then an alternative
decision maker must be allowed to consent to or refuse treatment for the adult.
For a child, the parent or guardian of the child must be allowed to consent to or
refuse treatment, except as described in ORS 109.610 or limited by court order;
(D) Informed, voluntary,
written consent prior to receiving services, except in a medical emergency or as
otherwise permitted by law;
(E) Informed, voluntary,
written consent prior to participating in any experimental programs;
(F) A humane service environment
that affords reasonable protection from harm, reasonable privacy in all matters
that do not constitute a documented health and safety risk to the individual, and
access and the ability to engage in private communications with any public or private
rights protection program, services coordinator, personal agent, and others chosen
by the individual through personal visits, mail, telephone, or electronic means;
(G) Contact and visits with
legal and medical professionals, legal and designated representatives, family members,
friends, advocates, and others chosen by the individual, except where prohibited
by court order;
(H) Participate regularly
in the community and use community resources, including recreation, developmental
disability services, employment services, school, educational opportunities, and
health care resources;
(I) For individuals less
than 21 years of age, access to a free and appropriate public education, including
a procedure for school attendance or refusal to attend;
(J) Reasonable and lawful
compensation for performance of labor, except personal housekeeping duties;
(K) Manage his or her own
money and financial affairs unless the right has been taken away by court order
or other legal procedure;
(L) Keep and use personal
property, personal control and freedom regarding personal property, and a reasonable
amount of personal storage space;
(M) Adequate food, housing,
clothing, medical and health care, supportive services, and training;
(N) Seek a meaningful life
by choosing from available services, service settings, and providers consistent
with the support needs of the individual identified through a functional needs assessment
and enjoying the benefits of community involvement and community integration:
(i) Services must promote
independence and dignity and reflect the age and preferences of the individual;
and
(ii) The services must be
provided in a setting and under conditions that are most cost effective and least
restrictive to the liberty of the individual, least intrusive to the individual,
and that provide for self-directed decision-making and control of personal affairs
appropriate to the preferences, age, and identified support needs of the individual;
(O) An individualized written
plan for services created through a person-centered planning process, services based
upon the plan, and periodic review and reassessment of service needs;
(P) Ongoing opportunity to
participate in the planning of services in a manner appropriate to the capabilities
of the individual, including the right to participate in the development and periodic
revision of the plan for services, the right to be provided with a reasonable explanation
of all service considerations through choice advising, and the right to invite others
chosen by the individual to participate in the plan for services;
(Q) Request a change in the
plan for services and a reassessment of service needs;
(R) A timely decision upon
request for a change in the plan for services;
(S) Advance written notice
of any action that terminates, suspends, reduces, or denies a service or request
for service and notification of other available sources for necessary continued
services;
(T) A hearing to challenge
an action that terminates, suspends, reduces, or denies a service or request for
service;
(U) Exercise all rights set
forth in ORS 426.385 and 427.031 if the individual is committed to the Department;
(V) Be informed at the start
of services and annually thereafter of the rights guaranteed by this rule, the contact
information for the protection and advocacy system described in ORS 192.517(1),
the procedures for reporting abuse, and the procedures for filing complaints, reviews,
or requests for hearings if services have been or are proposed to be terminated,
suspended, reduced, or denied;
(W) Have these rights and
procedures prominently posted in a location readily accessible to individuals and
made available to representatives of the individual;
(X) Be encouraged and assisted
in exercising all legal, civil, and human rights accorded to other citizens of the
same age, except when limited by a court order;
(Y) Be informed of and have
the opportunity to assert complaints as described in OAR 411-318-0015 with respect
to infringement of the rights described in this rule, including the right to have
such complaints considered in a fair, timely, and impartial complaint procedure
without any form of retaliation or punishment; and
(Z) Freedom to exercise all
rights described in this rule without any form of reprisal or punishment.
(e) The rights described
in this rule are in addition to, and do not limit, all other statutory and constitutional
rights that are afforded all citizens including, but not limited to, the right to
exercise religious freedom, vote, marry, have or not have children, own and dispose
of property, and enter into contracts and execute documents unless specifically
prohibited by law.
(f) An individual who is
receiving developmental disability services has the right under ORS 430.212 and
OAR 411-320-0090 to be informed that a family member has contacted the Department
to determine the location of the individual and to be informed of the name and contact
information of the family member, if known.
(g) The rights described
in this rule may be asserted and exercised by an individual, the legal representative
of an individual, and any representative designated by an individual.
(h) Nothing in this rule
may be construed to alter any legal rights and responsibilities between a parent
and child.
(i) A guardian is appointed
for an adult only as is necessary to promote and protect the well-being of the adult.
A guardianship for an adult must be designed to encourage the development of maximum
self-reliance and independence of the adult, and may be ordered only to the extent
necessitated by the actual mental and physical limitations of the adult. An adult
for whom a guardian has been appointed is not presumed to be incompetent. An adult
with a guardian retains all legal and civil rights provided by law, except those
that have been expressly limited by court order or specifically granted to the guardian
by the court. Rights retained by an adult include, but are not limited to, the right
to contact and retain counsel and to have access to personal records. (ORS 125.300).
(2) HEALTH. The agency must
have and implement policies and procedures that maintain and protect the health
of individuals.
(3) INDIVIDUAL AND FAMILY
INVOLVEMENT. The agency must have and implement a written policy that addresses:
(a) Opportunities for the
individual to participate in decisions regarding the operations of the agency;
(b) Opportunities for families,
guardians, legal and designated representatives, and significant others of the individuals
to interact; and
(c) Opportunities for individuals,
families, guardians, legal and designated representatives, and significant others
to participate on the Board of Directors or on committees or to review policies
of the agency that directly affect the individuals receiving services from the agency.
(4) INDEPENDENCE, PRODUCTIVITY,
AND INTEGRATION. As stated in ORS 427.007, the agency must have a written policy
that states each ISP for an individual is developed to meet the level of independence,
productivity, and integration of the individual into the local community.
(5) CONFIDENTIALITY OF RECORDS.
The agency must have and implement written policies and procedures that ensure all
records for individuals are kept confidential except as otherwise provided by applicable
state and federal rule or laws.
(a) For the purpose of disclosure
from individual medical records under this rule, an agency is considered a "public
provider" as defined in ORS 179.505.
(b) Access to records by
the Department does not require authorization by an individual or the legal or designated
representative or family of the individual.
(c) 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.
(6) BEHAVIOR SUPPORT. The
agency must have and implement a written policy for behavior support that utilizes
individualized positive behavioral theory and practice and prohibits abusive practices.
(7) PROTECTIVE PHYSICAL INTERVENTION.
The agency must have and implement written policies and procedures for protective
physical interventions that address the following:
(a) The agency must only
employ protective physical intervention techniques that are included in the approved
OIS curriculum or as approved by the OIS Steering Committee.
(b) Protective physical intervention
techniques must only be applied:
(A) When the health and safety
of an individual or others is at risk, the ISP team has authorized the procedures
as documented by the decision of the ISP team, the procedures are documented in
the ISP, and the procedures are intended to lead to less restrictive intervention
strategies; or
(B) As an emergency measure
if absolutely necessary to protect the individual or others from immediate injury;
or
(C) As a health-related protection
prescribed by a physician, if absolutely necessary during the conduct of a specific
medical or surgical procedure, or for the protection of an individual during the
time that a medical condition exists.
(8) HANDLING AND MANAGING
INDIVIDUALS' MONEY. The agency must have and implement written policies and procedures
for the handling and management of money for the individuals. Such policies and
procedures must provide for:
(a) Financial planning and
management of the funds for an individual unless the ISP documents and justifies
limitations to self-management;
(b) Safeguarding the funds
for an individual;
(c) Individuals receiving
and spending their own money; and
(d) Taking into account the
interests and preferences of the individual.
(9) COMPLAINTS.
(a) Complaints by or on behalf
of individuals must be addressed in accordance with OAR 411-318-0015.
(b) The agency 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 (as applicable).
(10) AGENCY DOCUMENTATION
REQUIREMENTS. The agency must have and implement policies and procedures that address
agency documentation requirements. Documentation must:
(a) Be prepared at the time
or immediately following the event being recorded;
(b) Be accurate and contain
no willful falsifications;
(c) Be legible, dated, and
signed by the person making the entry; and
(d) Be maintained for no
less than three years.
Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 409.050
Hist.: SPD 12-2011, f. &
cert. ef. 7-1-11; SPD 19-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; SPD
1-2012, f. & cert. ef. 1-6-12; APD 24-2014(Temp), f. & cert. ef. 7-1-14
thru 12-28-14; APD 42-2014, f. 12-26-14, cert. ef. 12-28-14
411-323-0070
Variances
(1) The Department may grant a variance
to these rules based upon a demonstration by an agency that an alternative method
or different approach provides equal or greater agency effectiveness and does not
adversely impact the welfare, health, safety, or rights of individuals or violate
state or federal laws.
(2) The agency 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) The alternative practice,
service, method, concept, or procedure proposed; and
(d) If the variance applies
to the services for 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 agency, the CDDP, and to all relevant Department programs or offices within
30 days from the receipt of the variance request.
(4) The agency may request
an administrative review of the denial of a variance request. The Department must
receive a written request for an administrative review within 10 business days from
the receipt of the denial. The decision of the Director is the final response from
the Department.
(5) The duration of the variance
is determined by the Department.
(6) The agency may implement
a variance only after written approval from the Department.
Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 409.050
Hist.: SPD 12-2011, f. &
cert. ef. 7-1-11; SPD 19-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; SPD
1-2012, f. & cert. ef. 1-6-12; APD 24-2014(Temp), f. & cert. ef. 7-1-14
thru 12-28-14; APD 42-2014, f. 12-26-14, cert. ef. 12-28-14

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