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OREGON HEALTH AUTHORITY,

ADDICTIONS AND MENTAL HEALTH DIVISION: MENTAL HEALTH SERVICES

 

DIVISION 12
ADMINISTRATIVE PRACTICE AND PROCEDURE

[ED. NOTE: Administrative Practice and Procedure Rules, OAR 309-012-0000 & 309-012-0005, were repealed effective 6-1-06. The Department will adhere to the Procedural Rules in OAR 943-001.]
309-012-0025
Procedures for Appeals
of Reimbursement Orders
(1) Purpose. This rule prescribes
procedures for appeals of Reimbursement Orders issued by the Division.
(2) Statutory Authority and
Procedure. This rule is authorized by ORS 179.640, 413.042 & 179.040 and carries
out the provisions of ORS 179.610 to 179.770.
(3) Definitions. As used in
this rule:
(a) “Administrator”
means the Administrator of the Addictions and Mental Health Division;
(b) “Authorized Representative”
means those parties named in ORS 305.240, or those parties who are determined to
have the authority to represent the person;
(c) “Division” means
the Addictions and Mental Health Division of the Oregon Health Authority;
(d) “Hearing” means
the hearing authorized by ORS 179.640 for the purpose of review of Reimbursement
Orders and modified Reimbursement Orders issued pursuant to ORS 179.640;
(e) “Hearings Officer”
means any person designated by the Administrator to hold hearings on matters coming
before the Division. Staff of the Reimbursement Section of the Division may not
be designated as hearings officers;
(f) “Informal Conference”
means a proceeding held before the appeal hearing to allow the person to obtain
a review of the action or proposed action without the necessity of a formal hearing;
(g) “Person” means:
(A) A patient who is receiving
or has received treatment or care at a state institution for the mentally ill;
(B) A current or former resident
at a state institution for the mentally retarded;
(C) The estate of the person;
(D) Any other individual or
entity having a financial interest in contesting a Reimbursement Order.
(h) “Reimbursement Order”
means the order issued to determine the person’s ability to pay pursuant to
ORS 179.640;
(i) “Service” means
deposit of a Reimbursement Order by U.S. mail, state mail, or deposit with a state
institution for hand delivery;
(j) “State Institution”
means Dammasch State Hospital in Wilsonville, Oregon State Hospital in Salem, Fairview
Training Center in Salem, and Eastern Oregon Hospital and Training Center in Pendleton.
(4) Authorization for Hearing:
A hearing before the Administrator or a Hearings Officer shall be granted to a person
who appeals to the Administrator in the following instances:
(a) A person may appeal the
Division’s determination or redetermination of the person’s ability
to pay the state’s charges for institutional care and maintenance. The appeal
must be submitted within 60 days of the service of the Reimbursement Order;
(b) The Division, on or about
the time of the person’s discharge, shall determine whether or not any of
the funds previously paid by the person or on his or her behalf to the State of
Oregon to cover his or her cost of care should be reimbursed to the person to satisfy
his or her financial needs upon release, or whether any of the previous Reimbursement
Orders for the current hospitalization should be modified. This redetermination
may be appealed within 60 days of service.
(5) Request for Hearing:
(a) No particular format for
a request for a hearing is required, but, to be considered, each request must be
in writing and must specify:
(A) The name and address of
the person requesting the hearing;
(B) The action being appealed,
including:
(i) The year or years involved;
(ii) A reference to any Division
correspondence on the subject known to the person;
(iii) Why the action being appealed
is claimed to be incorrect;
(iv) The specific relief requested.
(b) The request for a hearing
must be signed by the person or his or her authorized representative;
(c) All requests for hearings
shall be filed by mailing or delivering the appeal to the Reimbursement Section,
Addictions and Mental Health Division, 500 Summer St. NE, E-86, Salem, OR 97301;
(d) If the request for a hearing
is considered insufficient in content by the Division, the Division may require
the request to be reasonably supplemented with additional information before any
further action is taken on the appeal;
(e) Prior to the time of an
appeal hearing, if there is no objection by the person, the Hearings Officer may
refer the matter in controversy for an informal conference for settlement or simplification
of issues.
(6) Authorization for Informal
Conference:
(a) A person who has requested
an appeal hearing pursuant to section (5) of this rule may request that he or she
have an informal conference with a representative from the Reimbursement Section
before the formal appeal hearing. Any request for an informal conference may be
granted at the discretion of the Division;
(b) Such conferences are informal.
A person may represent himself or herself or may choose someone to act as his or
her representative. The purpose of the conference is to allow a person to obtain
a review of the action or proposed action (without the necessity of a formal appeal
hearing), if he or she believes that an action made or proposed by the Division
is incorrect;
(c) Payment of the proposed
charge for institutional care and maintenance will not jeopardize a conference request
or decision.
(7) Request for Informal Conference:
(a) A conference request may
be filed either with a hearing request required in section (5) of this rule or subsequent
to the hearing request but at least
14 days before the date of a scheduled hearing;
(b) The conference request shall be in
writing and must specify:
(A) The name and address of
the person requesting the conference;
(B) The reason for the request,
including:
(i) In what respect the action
or proposed action of the Division is erroneous;
(ii) Reference to any prior
Division correspondence on the subject.
(c) If a hearing has been requested,
the material submitted as part of the request for a hearing may be used at the informal
conference;
(d) The conference request should
be addressed to the Reimbursement Section, Addictions and Mental Health Division,
500 Summer St. NE, E-86, Salem, OR 97301.
(8) Conduct of Informal Conference.
A conference shall be held at a place designated by the Division. To the extent
practical, the conference will be held at a location convenient to the person. The
conference shall begin with a statement from the Division. The person requesting
the conference shall then state his or her position, the facts as he or she knows
them, and his or her questions of persons present to clarify the issues.
(9) Disposition of Informal
Conference:
(a) After the conference, the
Reimbursement Section will issue a proposed order disposing of the appeal for approval
by the Administrator. The written order, approved by the Administrator, will be
sent to the person within 14 days of the conference, unless during the conference
the Division action is conceded by the person to be correct;
(b) The person’s request
for a hearing will be stayed pending the outcome of the conference, at which time
the request for a hearing will either be withdrawn by the person should he or she
no longer desire to proceed, or the hearing will be rescheduled;
(c) When a decision favors the
person, the person will receive a refund;
(d) The person may request within
30 days that the decision made at an informal conference be reconsidered by the
Administrator. The person should set forth the specific ground or grounds for requesting
the reconsideration.
(10) Subpoenas and Depositions:
(a) The Division shall issue
subpoenas to any party to a hearing upon request. Witnesses appearing pursuant to
subpena, other than parties or employees of the Division, shall receive fees and
mileage as prescribed by law for witnesses in a civil action;
(b) Depositions may be taken
on petition of any party to a hearing.
(11) Conduct of Appeal Hearing:
(a) To the extent practical,
the Division, in designating the location of the hearing, shall designate a place
convenient for the person;
(b) The hearing shall be conducted
by and shall be under the control of the Hearings Officer;
(c) The Hearings Officer shall
administer an oath or affirmation of the witnesses;
(d) A verbatim record shall
be made of all testimony and rulings. Parties who wish a transcription of the proceedings
should make arrangements with the Division. If the Division determines the record
is no longer needed, the Division may destroy the record after 180 days following
the issuance of a final order, unless within the 180-day period arrangements are
made by the person for further retention by the Division;
(e) The hearing shall begin
with a statement of the facts and issues involved. The statement shall be given
by a person requested to do so by the Hearings Officer;
(f) The Hearings Officer may
set reasonable time limits for oral presentation and may exclude or limit testimony
that is cumulative, repetitious or immaterial.
(12) Evidentiary Rules:
(a) All evidence of a type commonly
relied upon by reasonably prudent persons in conduct of their serious affairs shall
be admissible;
(b) The Hearings Officer shall
receive all physical and documentary evidence presented by parties where practicable.
All offered evidence is subject to the Hearings Officer’s power to exclude
or limit cumulative, repetitious or immaterial matter;
(c) Evidence objected to may
be received by the Hearings Officer, and rulings on its admissibility or exclusion
may be made at the time a final order is issued;
(d) At the time of the hearing,
the person will be notified that any exhibit introduced as evidence at the hearing
will be destroyed after 180 days following the issuance of a final order, unless
within the 180-day period, written request is made by the person presenting the
exhibit for the return of the exhibit;
(e) The burden of presenting
evidence to support a fact or position in a hearing rests on the proponent of the
fact or position.
(13) Disposition of Appeal:
(a) After a hearing has been
held, the Hearings Officer shall issue a proposed order, including findings of fact
and conclusions of law. If the proposed order is adverse to the person, it shall
be served upon the person and an opportunity afforded to the person to file exceptions
and present written argument to the Administrator before a final order is issued.
A person has a ten-day period in which to file exceptions and/or written argument
to a proposed order;
(b) Final orders on a hearing
shall be in writing and shall include:
(A) Rulings on admissibility
of offered evidence;
(B) Findings of fact —
Those matters which are either agreed as fact or which, when disputed, are determined
by the Administrator, on substantial evidence, to be a fact over contentions to
the contrary;
(C) Conclusions of law —
Applications of the controlling law to the facts found and the legal results arising
there from;
(D) The action taken by the
Division as a result of the findings of fact and conclusions of law; and
(E) Notice of the person’s
right to judicial review of the order.
(c) Parties to a hearing and
their attorneys shall be mailed a copy of the final order and accompanying findings
and conclusions.
(14) Administrative Review of
Final Order:
(a) A person may file a petition
for administrative review of the final order with the Division within 30 days after
the order is served. The petition shall set forth the specific ground or grounds
for requesting the review. The petition may be supported by a written argument.
Examples of sufficient grounds are:
(A) The Division action is not
supported by the written findings, or the written findings are inaccurate; or
(B) Pertinent information was
available at the time of the original hearing which, through no fault of the party,
was not considered; or
(C) The action of the Division
is inconsistent with its rules or policies or is contrary to law; and
(D) The matters raised on appeal
may have an effect on the original decision.
(b) The Division may grant a
rehearing petition if sufficient reason therefore is made to appear. The rehearing
may be limited by the Division to specific matters. If a rehearing is held, an amended
order shall be entered;
(c) If the Division denies the
appeal, it shall inform the person in writing of the denial;
(d) If the administrative review
has been requested, the Division order is not final until the administrative review
is granted or denied.
(15) Time Extensions. Where
any provision of this rule specifies a particular time period in which a person
must act, for good cause shown, the Hearings Officer may, in his or her discretion,
allow a reasonable extension of time if so doing is not inconsistent with ORS 179.640
to 179.650.
(16) Appeal. An appeal from
the final order of the Division may be taken as provided by law. Caution: Either
ORS 179.650 or 183.482 may be applicable. See League of Women Voters v. Lane County
Boundary Commission, 32 Or. App. 53, 573P.2d 1255, rev. denied, 283 Or. 503 (1978).
Stat. Auth.: ORS 179.770, 413.042 &
430.021

Stats. Implemented: 179.610
– 179.770

Hist.: MHD 6-1979(Temp), f.
& ef. 9-20-79, MHD 1-1980, f. & ef. 1-14-80
Determination of Ability to
Pay Cost ofCare in State Institutions
309-012-0030
Purpose and Statutory
Authority
(1) Purpose. Individuals admitted
to the Division institutions are liable for the full cost of their care, but are
required to pay only what they are able to pay. This rule establishes guidelines
for determining a person’s ability to pay for the cost of care in a state
institution.
(2) Statutory Authority. This
rule is made necessary by ORS 179.610, authorized by ORS 413.042 and carries out
the provisions of ORS 179.610 to 179.770.
Stat. Auth.: ORS 179.770, 413.042
& 431.021

Stats. Implemented: ORS 179.610
– 179.770

Hist.: MHD 5-1980(Temp), f.
& ef. 4-18-80; MHD 14-1980, f. & ef. 6-24-80; MHD 9-1991, f. 12-13-91, cert.
ef. 12-16-91
309-012-0031
Definitions
As used in these rules:
(1) “Ability to Pay”
means the ability of a person in a state institution to pay past, current, or ongoing
cost of care, as determined by the Division in accordance with these rules.
(2) “Assets” means,
excluding income, the total value of an individual’s equity in real and personal
property of whatever kind or nature. Assets include, but are not limited to the
individual’s stocks, bonds, cash, accounts receivable, moneys due, or any
other interests, whether they are self-managed, or held by the individual’s
authorized representative, or by any other individual or entity on behalf of the
individual. “Assets” held in trust are subject to laws generally applicable
to trusts.
(3) “Authorized Representative”
means an individual or entity appointed under authority of ORS 125, as guardian
or conservator of a person, who has the ability to control the person’s finances,
and any other individual or entity holding funds or receiving benefits or income
on behalf of any person.
(4) “Benefits from Health
Insurance” means payments from insurance programs with the limited purpose
of paying for the cost of care provided to an individual by a hospital or other
health care provider. Benefits of this type include, but are not limited to payments
from:
(a) Private and group health
insurance policies;
(b) The Medicare and Medicaid
programs;
(c) Any other policies or programs
with the purpose of paying for the costs of inpatient and/or outpatient care.
(5) “Charges” means
the amount the Division has determined that the person is required to pay toward
the cost of care based on his or her ability to pay.
(6) “Cost of Care”
means the person’s full liability for care as determined by the Division using
the rates established in accordance with ORS 179.701.
(7) “Dependents”
means individuals whom a person has a legal duty to support. “Dependents”
may include non-emancipated children and spouse of a person, as well as any other
individual for whom a person would be allowed a personal exemption under federal
or Oregon personal income tax laws.
(8) “Division” means
the Addictions and Mental Health Division of the Oregon Health Authority.
(9) “Fair Market Value”
means the cash price a capable and diligent individual could obtain in a reasonable
amount of time for an asset after negotiating with those accustomed to buying such
property.
(10) “Funds for Personal
Support Following Release” means the cash that a person will need following
his/her release from a state institution to live in the community in a reasonable
manner for a period of time, not normally to exceed six months.
(11) “Income” means
all funds received by an individual, or for an individual by his or her authorized
representative, from any source, whether earned or unearned, after making applicable
deductions for state and federal taxes. “Income” includes benefits from
both income protection insurance which replaces the person’s earned income
when he or she is unable to work, and governmental retirement or disability insurance,
such as Social Security, Veterans, and Railroad Retirement benefits.
(12) “Legal Obligations”
means any financial duty imposed by law. “Legal obligations” include,
but are not limited to, loan or mortgage contracts for which an individual is responsible,
as well as liabilities arising out of other contracts or legal duties to pay money.
“Legal obligations” include administratively or judicially ordered child
and/or spousal support.
(13) “Moral Obligations”
means any payments that an individual feels a moral duty to pay, but for which the
individual does not have a legal duty to pay.
(14) “Person” means:
(a) A current or former patient
at a state institution for the mentally and emotionally disturbed;
(b) A current or former resident
at a state institution for the developmentally disabled.
(15) “Person’s Representative”
means:
(a) Any individual who is the
person’s authorized representative as defined in section (3) of this rule;
and/or
(b) Any other individual who
has the person’s written authority to represent the person.
(16) “Personal Expense
Allowance” means the cash allowed for the reasonable miscellaneous expenses
the person has while he or she is in the state institution, including but not limited
to expenses for personal grooming and hygiene items; books, newspapers, or other
publications; snacks or refreshments not provided by the state institution; and
minor entertainment or excursions.
(17) “Primary Personal
Automobile” means the automobile, if the person has more than one, which the
person would choose to keep if required to sell all but one. If the person has only
one, it is the primary personal automobile.
(18) “Primary Personal
Residence” means the home the person owns, or is purchasing, and in which
the person lived prior to entering the state institution, and/or in which the person
will live after leaving the state institution.
(19) “Special Authorized
Expense Allowance” means the cash needed for the reasonable personal expenses
of the person which cannot be met by the personal expense allowance, and which the
Division determines are necessary.
(20) “State Institution”
means Dammasch State Hospital in Wilsonville; Eastern Oregon Psychiatric Center
in Pendleton; Eastern Oregon Training Center in Pendleton; Fairview Training Center
in Salem; and Oregon State Hospital in Salem.
(21) “Support for Dependents”
means the cash necessary to meet the reasonable needs of the dependents, less the
amounts the dependents receive from any other sources. Support for dependents excludes
administratively or judicially ordered child and/or spousal support.
Stat. Auth.: ORS 179.770, 413.042
& 431.021

Stats. Implemented: ORS 179.610
– 179.770

Hist.: MHD 5-1980(Temp), f.
& ef. 4-18-80; MHD 14-1980, f. & ef. 6-24-80; MHD 9-1991, f. 12-13-91, cert.
ef. 12-16-91
309-012-0032
Requirements for Obtaining
Financial Information
(1) Information Obtained from
the Person and/or the Person’s Representative. The Division shall require
the person and/or the person’s representative to submit financial information
on forms provided by the Division. Financial information required by the Division
shall include, but shall not be limited to the following:
(a) A description of the person’s
assets, and their values;
(b) A description
of the person’s liabilities, the dates they were incurred, the total amounts
owing, and a schedule of actual or planned payment dates and amounts;
(c) The sources and amounts of the person’s
income;
(d) The sources of available
benefits from health insurance;
(e) A description and the amounts
of the person’s expenses;
(f) The names and ages of any
dependents, and the sources and amounts of income and assets, other than those of
the person, which are available for their support; and
(g) The income, assets, and
liabilities of the person’s spouse or other individual who shares the person’s
expenses;
(h) Other information the person
and/or the person’s representative considers important to the determination
of the person’s ability to pay.
(2) Information Obtained from
Other Sources. In addition, the Division may obtain financial information regarding
the person from other sources the Division considers to be reliable. These sources
may include, but are not limited to, the Social Security and Veterans Administrations,
Oregon Department of Revenue, and other Oregon Health Authority agencies.
Stat. Auth.: ORS 179.770, 413.042
& 431.021

Stats. Implemented: ORS 179.610
– 179.770

Hist.: MHD 5-1980(Temp), f.
& ef. 4-18-80; MHD 14-1980, f. & ef. 6-24-80; MHD 9-1991, f. 12-13-91, cert.
ef. 12-16-91
309-012-0033
Procedures for Determining
Ability-to-Pay for Cost of Care
(1) Ability-to-Pay Orders —
Based on the financial information received or obtained, the Division will determine
the person’s ability to pay. If the person, and/or the person’s authorized
representative fails to provide sufficient information to show the person cannot
pay the full cost of care, the Division may determine the person has the ability
to pay the full cost of care. The determination of the person’s ability to
pay shall be set forth in an Ability-to-Pay Order. The four types of Ability-to-Pay
orders are Determination of Charges, Modification to Charges, Return of Funds for
Personal Support Following Release, and Waiver of Charges. Each Order shall be given
one of these titles to identify the type of determination it sets forth, and it
shall be based on the factors and criteria described in the following sections.
(2) Limit on Charges —
The amount determined by the Division to be the person’s charges shall not
exceed the full cost of care for the dates of service covered by the Ability-to-Pay
Order, less payments and/or credits from any other sources the Division has received,
or reasonably anticipates receiving.
(3) Determination of Charges
— An Ability-to-Pay Order which sets forth a determination of the person’s
charges for the care received which is made either while the person is in the state
institution, or after the person’s release from the state institution. A Determination
of Charges may be issued any time during the person’s stay in the state institution.
A Determination of Charges will be issued after the person’s release if none
was issued during the person’s stay, or if the person’s financial circumstances
change to enable the person to pay cost of care which exceeds amounts charged by
previous Ability-to-Pay Orders. When issuing a Determination of Charges, the Division
will consider the following factors:
(a) Factors relating to the
person’s eligibility for and coverage by benefits from health insurance;
(b) Factors relating to the
person’s assets:
(A) Except as otherwise provided
in this section, charges will be assessed using the person’s equity in all
assets whether the asset is controlled by the person, or by the person’s authorized
representative. The Division will determine the person’s equity in each asset
by deducting from the fair market value of the asset any bona fide encumbrance against
the asset;
(B) Charges will be assessed
using the person’s equity in a primary personal residence only if:
(i) Information is provided
by the treatment staff at the state institution stating the person cannot reasonably
be expected to return to the residence to live at any time following discharge from
the institution; and
(ii) None of the following individuals
is residing in the residence:
(I) The person’s spouse;
(II) The person’s child
or children under age 21, or blind or disabled;
(III) The person’s sibling
or siblings who own an interest in the residence, and who lived in the residence
for at least one year immediately prior to the person’s admission to the state
institution;
(IV) The person’s parents
or emancipated children who are unable to work to maintain themselves as declared
in ORS 109.010.
(C) No charge will be assessed
using the person’s equity in a primary personal automobile;
(D) The value of an asset which
has great sentimental value to the person (such as a family heirloom or gift from
a loved one) may be disregarded if selling the asset would cause the person great
emotional distress. The Division shall confer with the person’s treatment
staff to decide whether or not to make this disregard;
(E) When assets are used as
the basis for ongoing charges, the Division will estimate the length of time the
assets are expected to last. During the final 60 days of that time period, the Division
will review the person’s financial circumstances in preparation for modifying
the person’s charges.
(c) Factors relating to the
person’s income:
(A) Charges will be assessed
using the total amount of all income received either by the person, or for the person
by the person’s authorized representative;
(B) Income received at intervals
other than monthly may be prorated for use in a calculation of a monthly charge
to the person.
(d) Factors relating to the
person’s legal and moral obligations:
(A) For legal obligations other
than administratively or judicially ordered child and/or spousal support, the person
must have demonstrated an intent to pay the obligation, either by showing a history
or regular payments toward the full amount owing, or by providing a plan showing
dates and amounts of payments to be made in the future;
(B) The Division shall seek
the advice of treatment staff as to whether or not, in the interest of the person’s
rehabilitation, welfare, and/or treatment, the person’s need to satisfy declared
moral obligations should be given priority over the person’s obligation to
pay the cost of care;
(C) Any deduction allowed by
the Division for legal or moral obligations must be used to satisfy the current
obligation. It may not be accumulated by, or on behalf of the person, or used for
purposes other than that for which it was approved.
(e) Factors relating to the
person’s obligation to provide financial support for dependents:
(A) Before approving a deduction
for financial support for a dependent, the Division shall determine how much money
is required to reasonably support the dependent. From that amount, the Division
shall subtract any funds available from sources other than the person, such as the
dependent’s own income and assets, or any form of governmental aid such as
public assistance payable to, or on behalf of the dependent;
(B) Any deduction allowed by
the Division for the financial support of dependents must be used to provide current
support. It may not be accumulated by, or on behalf of the person, and it may not
be used for other purposes.
(f) Factors relating to the
person’s personal and special authorized expenses while in the state institution:
(A) The personal expense allowance
while the person is in the state institution shall be established by the Division
to reflect the Supplemental Security Income Program’s payment limit for institutionalized
individuals (The allowance was $30 per month as of July 1, 1988.);
(B) Special authorized expense
allowances while the person is in the state institution shall be approved based
on the following criteria:
(i) The state
institution treatment staff’s advice that satisfying the need will not interfere
in any way with the successful treatment or general welfare of the person, and it
may enhance the person’s ability to meet the goals of the treatment plan;
and
(ii) There are no other resources available
to meet the need.
(g) Factors related to the person’s
need for funds for personal support following release from the state institution
when the Division is issuing any Ability-to-Pay Order after release or when release
is scheduled within 30 days:
(A) As necessary, funds for
personal support following release will be allowed to pay for the following items:
(i) Rental costs including the
monthly rent payment, as well as one time deposits or fees, or mortgage payments
related to the purchase of a residence;
(ii) Food for the person and
dependents;
(iii) Utilities such as heating
fuel, water, electricity, garbage service, basic telephone service, and basic television
cable service;
(iv) Transportation and related
insurance coverage;
(v) Routine household maintenance
and insurance coverage;
(vi) Health and dental care
and related insurance coverage for the person and dependents;
(vii) Clothing and entertainment
for the person and dependents; and
(viii) Other personal expenses
which the person shows to be reasonable and necessary, including payments toward
moral obligations and legal obligations (other than mortgage contracts), as described
in subsection (d) of this section.
(B) The funds allowed for personal
support following release shall be based on what a reasonable and prudent individual
would spend for the items given the resources available to the individual;
(C) The amount approved for
support of the dependents shall take into consideration all other resources available
to meet the dependent’s needs.
(h) Factors relating to the
time period during which the Division may assess charges, and the time period during
which the person is required to pay assessed charges:
(A) Ability-to-Pay Orders issued
after release which establish an ongoing monthly charge based on the person’s
ability to pay after release shall not add new charges beyond the 36th month following
the month in which the person was released from the state institution;
(B) The person is required to
pay beyond the 36 month period, any assessed charges not paid prior to release or
during the 36 month period after release.
(4) Modification to Charges
— An Ability-to-Pay Order which sets forth a modification to the person’s
charges established by a prior Ability-to-Pay Order. A Modification to Charges will
be made to reflect either a change in the person’s financial circumstances
which affects the person’s ability-to-pay ongoing monthly charges, or the
Division’s receipt of benefits from health insurance that were not recognized
in a prior Ability-to-Pay Order, which cause established charges to exceed the maximum
cost of care chargeable to the person in accordance with section (2) of this rule.
When issuing a Modification to Charges, the Division will consider the same factors
used for a Determination of Charges as described in section (3) of this rule.
(5) Return of Funds for Personal
Support Following Release — An Ability-to-Pay Order which sets forth a determination
by the Division regarding the return of funds paid toward the person’s charges
to provide the person with adequate funds for personal support following his or
her release from the state institution. When issuing a Return of Funds for Personal
Support Following Release, the Division will use the following criteria:
(a) A Return of Funds for Personal
Support Following Release is subject to the following conditions:
(A) The person or the person’s
representative has made payments toward the cost of care provided by the state institution.
NOTE: Returned funds
for personal support following release cannot exceed the total amount paid from
the person’s own income and assets. Benefits from health insurance are not
included in the amounts paid.
If charges are due, but the
person or the person’s representative has made no payment, funds for personal
support following release will be considered under the provisions for Waiver of
Charges;
(B) The person will be discharged
from the state institution within the next 30 days, or he/she was discharged from
the state institution within the last 60 days;
(C) The person has financial
obligations following release from the state institution as described in subsection
(3)(g) of this rule which cannot be immediately satisfied with other available resources.
(b) Funds for personal support
following release will be provided for a limited amount of time, not normally to
exceed six months, during which time the person will be expected to become otherwise
supported through employment, public assistance, or other available programs;
(c) Funds for personal support
following release for a period of time exceeding six months will be considered only
if the Division receives information which shows the person’s circumstances
require such consideration.
(6) Waiver of Charges —
An Ability-to-Pay Order which sets forth a determination by the Division regarding
waiver of collection of part or all of the person’s unpaid charges based upon
the best interest of the person or the Division:
(a) A waiver of charges should
be granted when the Division, after considering information regarding extraordinary
circumstances pertaining either to the person’s financial situation, or the
person’s physical, psychological, or sociological well-being, determines:
(A) Charges assessed by prior
Ability-to-Pay Orders are unpaid, and a subsequent change in the person’s
circumstances shows that collection of all or part of the unpaid charges would be
detrimental to the best interests of the person or of the Division;
(B) Charges assessed by prior
Ability-to-Pay Orders are unpaid, and the Division either receives a written statement
from the person’s treating physician, or accepts, on a case-by-case basis,
a non-physician mental health professional’s written statement, which indicates
the person’s physical, psychological, and/or sociological condition is interfering
with the person’s ability to satisfy the outstanding obligation, and further
efforts by the Division to collect the unpaid charges would be harmful to the person;
or
(C) Charges have not been assessed
by a prior Ability-to-Pay Order extraordinary circumstances as described in paragraph
(A) and/or (B) of this subsection are present, and based on those circumstances
the charges should not be assessed.
(b) In accordance with ORS 179.640(4),
charges may be assessed or reassessed at a later time by a new Determination of
Charges Ability-to-Pay Order if the basis for waiver under this section ceases to
exist.
Stat. Auth.: ORS 179.770, 413.042
& 431.021

Stats. Implemented: ORS 179.610
– 179.770

Hist.: MHD 5-1980(Temp), f.
& ef. 4-18-80; MHD 14-1980, f. & ef. 6-24-80; MHD 9-1991, f. 12-13-91, cert.
ef. 12-16-91
309-012-0034
Delivery of Ability-to-Pay
Orders and Factors Relating to Appeals
(1) Delivery to the Person —
The original Ability-to-Pay Order shall be delivered to the person, unless the person
has an authorized representative.
(2) Delivery to the Authorized
Representative — If the person has an authorized representative, the original
Ability-to-Pay Order shall be delivered to the authorized representative, and a
copy shall be delivered to the person. Any Ability-to-Pay Order delivered to an
authorized representative shall include an explanation of the Division’s right
to demand payment of the charges assessed by the Order, and the consequences to
the authorized representative of failing to comply, as provided by ORS 179.653.
(3) Appeal Rights — The
Ability-to-Pay Order shall include an explanation of the person’s right to
appeal the determination set forth by the Order.
(4) Successor Authorized Representative
— If the person’s authorized representative does not pay or appeal the
charges assessed by an Ability-to-Pay
Order, and he or she is subsequently replaced by a new authorized representative,
the successor authorized representative shall be provided with the opportunity to
either pay the assessed charges, or to appeal the determination set forth by the
Order. The Division will take the following actions when notified there is a successor
authorized representative:
(a) Deliver copies of all Ability-to-Pay
Orders not fully paid to the successor authorized representative with a letter which
describes the delivery of the Order(s) to the previous authorized representative(s),
and any actions taken by the previous representative(s) with regard to the Order(s);
(b) Include with the Order copies,
an explanation of the successor authorized representative’s right to appeal
the determination(s) set forth by the Ability-to-Pay Order(s).
(5) Resolving Appeals —
If the person or the person’s authorized representative appeals a determination
set forth by an Ability-to-Pay Order, the Division will attempt to resolve the appeal
by issuing a new Ability-to-Pay Order which takes into consideration the information
on which the appeal is based. If the appeal cannot be resolved by issuing a new
Order, it will be addressed through the contested case appeal process.
Stat. Auth.: ORS 179.770, 413.042
& 431.021

Stats. Implemented: ORS 179.610
– 179.770

Hist.: MHD 9-1991, f. 12-13-91,
cert. ef. 12-16-91
309-012-0035
Enforcement of Recoupment
Liens
(1) Purpose. This rule establishes
procedures for implementing recoupment liens used in carrying out Reimbursement
Orders issued by the Division.
(2) Statutory Authority and
Procedure. This rule is authorized by ORS 179.770 and 430.041 and carries out the
provisions of ORS 179.653 and 179.655.
(3) Definitions. As used in
this rule:
(a) “Cost of Care”
means the cost determined by the Division in accordance with ORS 179.701;
(b) “Division” means
the Addictions and Mental Health Division of the Oregon Health Authority;
(c) “Person” means:
(A) A patient who is receiving
or has received treatment or care at a state institution for the mentally ill;
(B) A current or former resident
at a state institution for the mentally retarded.
(d) “Person’s Representative”
means a conservator, guardian of the person, or estate of the person in a state
institution, or an individual who has been appointed by a court in this or another
state or by Federal Court to serve as the legal representative of a person in a
state institution, and also includes an individual whom a person in a state institution
has designated to receive the notice of information involved in the particular transaction;
(e) “Recoupment Lien”
means a charge or security or encumbrance upon real or personal property that can
be used to satisfy the amount due for the person’s cost of care;
(f) “Reimbursement Order”
means the order issued to determine the person’s ability to pay pursuant to
ORS 179.640(1) and (2);
(g) “State Institution”
means Dammasch State Hospital in Wilsonville, Oregon State Hospital in Salem, Fairview
Training Center in Salem, and Eastern Oregon Hospital and Training Center in Pendleton;
(h) “Warrant” means
the document issued by the Division directed to the sheriff of any county of the
state commanding the sheriff to levy upon and sell the real and personal property
which is subject to satisfaction of the recoupment lien.
(4) Enforcement of Lien by Issuance
of Warrant. The Division shall enforce its recoupment lien created by ORS 179.653
by issuance of a warrant in the manner stated in 179.655. Any warrant issued by
the Division pursuant to 179.655 shall clearly provide that the sheriff or other
person executing the warrant shall not levy upon and sell any real or personal property
that would be exempt under Oregon law from execution pursuant to a judgment. However,
the Division shall not issue a warrant pursuant to 179.655 where:
(a) The amount due to the Division
for the cost of care of a person in a state institution is not at least 30 days
overdue;
(b) Provision has been made
to secure the payment by bond or deposit or otherwise in conformance with section
(5) of this rule;
(c) The person has exercised
the right to appeal the Reimbursement Order pursuant to OAR 309-012-0025(6) and
that appeal is still pending;
(d) Sixty-one days have not
passed since the issuance of the Reimbursement Order;
(e) The person or the person’s
representative has not been given at least ten days’ prior written notice
that the Division intends to issue such a warrant.
(5) Methods of Securing Satisfaction
of Reimbursement Order:
(a) The issuance of a warrant
to the sheriff to enforce collection of delinquent money due the Division for the
cost of care for a person in a state institution will be stayed either by paying
the amount due and accrued interest after it becomes due or by securing payment
of that amount by bond or deposit or otherwise;
(b) The bond given by the person
must be for an amount not less than the amount due, plus interest for a reasonable
period determined by the Division:
(A) The bond must be executed
by:
(i) A surety company which is
registered with, and under the supervision of, the Insurance Commissioner of the
State of Oregon; or
(ii) By two or more individual
sureties, each of whom shall be a resident and homeowner or holder of an interest
in land within the state and each of whom shall be worth sums specified in the under-taking,
exclusive of property exempt from execution and over and above all valid debts and
liability.
(B) The Division may allow more
than two sureties to justify several amounts less than that expressed in the undertaking,
if the whole justification is equivalent to that of two sufficient undertakings.
(c) Any one of the following
items, or combination of items acceptable to the Division, equal to the amount due,
plus accrued interest thereon, may be deposited with the Division:
(A) A deposit of money;
(B) A certified check or checks
on any state or national bank within the State of Oregon payable to the Division;
(C) Satisfactory bonds negotiable
by delivery, or obligations by the U.S. Government negotiable by delivery; or
(D) Any other security satisfactory
to the Division.
(d) The Division may require
additional security whenever, in its opinion, the value of the security pledged
is no longer sufficient to adequately secure the payment of the amount due, plus
accrued interest thereon.
(6) Release of Tax Lien and
Clouds on Title. Any request made to the Division for the release of a warrant,
where such warrant is not in fact a lien on title to the real property in question
but merely a cloud on the title to such real estate, shall be accompanied by a statement.
This statement shall show the facts affecting the title to the real property in
question that render the Division’s warrant a cloud on the title to such real
property and the reasons the warrant does not actually constitute a lien thereon:
(a) This type of request for
release of a warrant should be accompanied by a current title report;
(b) The Division may require
other documentary proof showing the present condition of the title to the property
in question.
Stat. Auth.: ORS 179.770, 413.042
& 431.021

Stats. Implemented: ORS 179.610
– 179.770

Hist.: MHD 8-1980(Temp), f.
& ef. 4-18-80; MHD 15-1980, f. & ef. 6-24-80
Charges for Reproduction of
Medical Records
309-012-0070
Policy
(1) Requests for copies of medical records
must be made in writing with proper consent and must be specific to assure that
only the essential portions of the medical record are copied and released.
(2) A patient or resident shall
not be denied access to the medical record because of inability to pay. The patient
may review his or her record in the Medical Record Department at no charge.
(3) A copy of the most recent
release summary shall be furnished free of charge to authorized persons or agencies
providing follow-up care.
(4) A copy of required portions
of medical records may be provided without charge to the following agencies and
individuals. When a substantial part or all of a medical record is requested, the
Division may charge for copies in accordance with OAR chapter 943-003:
(a) Community mental health
programs;
(b) Courts;
(c) Hospitals;
(d) Individuals or agencies
providing follow-up care for the patient;
(e) Insurance carriers paying
for patient's or resident's care; and
(f) Physicians.
(5) All other requests for public
records shall be charged in accordance with OAR chapter 407, division 003.
Stat. Auth.: ORS 179.770, 413.042
& 431.120

Stats. Implemented: ORS 179.610
– 179.770

Hist.: MHD 2-1983(Temp), f.
& ef. 2-18-83; MHD 10-1983, f. & ef. 6-8-83; MHS 4-2007, f. & cert.
ef. 5-25-07
Amount of Earned Income in
Calculation of Ability-to-Pay
309-012-0100
Purpose and Statutory
Authority
(1) Purpose. These rules establish
the amount of earned income the Division excludes when calculating ability-to-pay
for cost of care at a mental health institution. The purpose of this earned income
exclusion is to reduce the disincentive to work for patients and residents.
(2) Statutory Authority. These
rules are authorized by ORS 413.042 and carry out the provisions of ORS 179.770.
Stat. Auth.: ORS 179.770, 413.042
& 431.021

Stats. Implemented: ORS 179.610
– 179.770

Hist.: MHD 11-1985, f. &
ef. 6-19-85
309-012-0105
Definitions
As used in these rules:
(1) “Earned Income”
means money received by a patient or resident in a mental health institution in
return for services rendered, while receiving care or treatment at the institution.
(2) “Mental Health Institution”
means Dammasch State Hospital in Wilsonville, Oregon State Hospital in Salem, Fairview
Training Center in Salem, and Eastern Oregon Psychiatric Center and Eastern Oregon
Training Center in Pendleton.
Stat. Auth.: ORS 179.770, 413.042
& 431.021

Stats. Implemented: ORS 179.610
– 179.770

Hist.: MHD 11-1985, f. &
ef. 6-19-85
309-012-0110
Earned Income in Calculation
of Ability-to-Pay
The Division includes earned
income as income in the calculation of ability-to-pay, as described in OAR 309-012-0030.
Stat. Auth.: ORS 179.770, 413.042
& 431.021

Stats. Implemented: ORS 179.610
– 179.770

Hist.: MHD 11-1985, f. &
ef. 6-19-85
309-012-0115
Earned Income Exclusion
The Division allows a patient
or resident to retain a portion of any income earned while in a mental health institution.
The amount of earned income to be excluded in the calculation of ability-to-pay
is determined by subtracting $65 from earned income. An additional $25 will be subtracted
from the total income (both earned and unearned) as an allowance for personal need.
Stat. Auth.: ORS 179.770, 413.042
& 431.021

Stats. Implemented: ORS 179.610
– 179.770

Hist.: MHD 11-1985, f. &
ef. 6-19-85
Certificates of Approval for
Mental Health Services
309-012-0130
Purpose and Scope
(1) Purpose. These rules establish procedures
for approval of the following kinds of organizations:
(a) Any mental health service
provider which is, or seeks to be, contractually affiliated with the Division or
community mental health authority for the purpose of providing services described
in ORS 430.630(3);
(b) Performing providers
under OAR 309-016-0070;
(c) Organizations seeking
Division approval of insurance reimbursement as provided in ORS 743A.168; and
(d) Holding facilities.
(2) These rules do not establish
procedures for residential licensure under ORS 443.410 and 443.725.
(3) These rules do not establish
procedures for regulating behavioral health care practitioners that are otherwise
licensed to render behavioral healthcare services in accordance with applicable
statutes.
(4) These rules do not establish
procedures for regulating practices exclusively comprised of behavioral healthcare
practitioners that are otherwise licensed to render behavioral healthcare services
in accordance with applicable statutes.
Stat. Auth.: ORS 179.040, 430.640, 743.556
& 743A.168
Stats. Implemented: ORS 179.505,
430.010 & 430.620
Hist.: MHD 4-1992, f. &
cert. ef. 8-14-92; MHS 14-2013(Temp), f. & cert. ef. 12-20-13 thru 6-18-14;
MHS 10-2014, f. 6-10-14, cert. ef. 6-19-14
309-012-0140
Definitions
As used in these rules:
(1) “Applicant”
is any entity potentially eligible to be approved as a provider under these rules
and who has requested, in writing, a Certificate of Approval.
(2) “Certificate of Approval”
is the document awarded under these rules signifying that a specific, named organization
is judged by the Division to operate in compliance with applicable rules. A “Certificate
of Approval” for mental health services is valid only when signed by the Assistant
Administrator of the Division and, in the case of a subcontract provider of a CMHP,
the CMHP director.
(3) “Community Mental
Health Program” or “CMHP” means the organization of all services
for persons with mental or emotional disturbances, operated by, or contractually
affiliated with, a local mental health authority, and operated in a specific geographic
area of the state under an agreement or contract with the Division.
(4) “Direct Contract”
or “Contract” is the document describing and limiting the relationship
and respective obligations between an organization other than a county and the Division
for the purposes of operating the mental health program area within a county’s
boundaries, or operating a statewide, regional, or specialized mental health services.
(5) “Division” means
the Addictions and Mental Health Division of the Oregon Health Authority.
(6) “Holding Facility”
means hospitals or other facilities, including Division contracted acute care facilities,
providing care, custody, and treatment of allegedly mentally ill persons under the
emergency provisions of ORS 426.070 & 426.140.
(7) “Intergovernmental
Agreement” or “Agreement” is the document describing and limiting
the contractual relationship and respective obligations between a county or other
government organization and the Division for the purpose of operating mental health
services.
(8) “Letter of Approval”
is the document awarded to service providers which states that the provider is in
compliance with applicable administrative rules of the Division. Letters of Approval
issued for mental health services are obsolete upon their expiration date, or upon
the effective date of this rule, whichever is later. OAR 309-012-0010 is repealed
upon the effective date of these rules.
(9) “Local Mental Health
Authority” means the county court or board of county commissioners of one
or more counties who operate a community
mental health program, or in the case of a Native American reservation, the tribal
council, or if the county declines to operate or contract for all or part of a community
mental health program, the board of directors of a public agency or private corporation
with whom the Division directly contracts to provide the mental health services
program area.
(10) “Mental Health Program Area”
means the organization of all services for persons with mental or emotional disturbances,
operated by or contractually affiliated with, a local mental health authority, in
a specific geographic area of the state.
(11) “Mental Health Services
Provider” means a corporate, or government entity, which provides a service
defined in a Division administrative rule, under a contract or agreement with the
Division, or CMHP.
(12) “Non-Inpatient Provider”
means an organization not contractually affiliated with the Division, a CMHP, or
other contractor of the Division providing services under group health insurance
coverage for mental or nervous conditions which seeks or maintains Division approval
under ORS 743.556(3).
(13) “Provider”
means either a mental health services provider, holding facility, or a non-inpatient
provider.
(14) “Service Element”
means a distinct service or group of services for persons with mental or emotional
disturbances which is defined in administrative rule and is included in a contract
or agreement issued by the Division.
(15) “Subcontract”
is the document describing and limiting the relationship and obligations between
a government or other entity having an agreement or contract with the Division and
a third organization (subcontractor) for the purpose of delivering some or all of
the services specified in the agreement or contract with the Division.
(16) “Substantial Compliance”
means a level of adherence to Division rules applicable to the operation of a service
which, while not meeting one or more of the requirements in an exact, literal manner,
does not, in the determination of the Division, constitute a danger to the health
or safety of any person, is not a willful or a potentially continuing violation
of the rights of service recipients as set forth in administrative rules, or will
not prevent the accomplishment of the State’s purposes in approving or supporting
the subject service. “Substantial failure to comply” is used in this
rule to mean the opposite of “substantial compliance.”
Stat. Auth.: ORS 179.040, 179.505,
426.175, 430.010, 430.640 & 743.556

Stats. Implemented: 430.620

Hist.: MHD 4-1992, f. &
cert. ef. 8-14-92
309-012-0150
Applicability of Certificates
of Approval
Certificates of Approval are awarded
to mental health services providers and non-inpatient providers that are found to
be in substantial compliance with applicable administrative rules:
(1) Mental health services
providers are required to maintain Certificates of Approval as follows:
(a) Each community mental
health program or provider operating under an Intergovernmental Agreement or a direct
contract with the Division must maintain a Certificate of Approval as set forth
in these rules;
(b) Each local mental health
service provider operating under subcontract with a CMHP must maintain a Certificate
of Approval as set forth in these rules in order to receive funds administered by
the Division through the local subcontract relationship.
(2) Hospitals and other facilities
which operate as holding facilities in providing care, custody, and treatment of
allegedly mentally ill persons under the emergency provisions of ORS 426.070 &
426.140 must maintain a Certificate of Approval as set forth in these rules.
(3) A provider not described
above which offers services that may be reimbursable under group health coverage
as set forth in ORS 743A.168 for mental or emotional conditions may seek to obtain
a Division Certificate of Approval in order to establish reimbursement eligibility.
(4) Certificates of Approval
are not awarded as a substitute for a license such as those required in ORS 443.410
and 443.725 for residential facilities. However, the Division may require such licensed
providers to obtain a Certificate of Approval if services exceeding those required
for licensure are provided in return for Division financial support as set forth
in section (1) of this rule.
(3) These rules do not establish
procedures for regulating behavioral health care practitioners that are otherwise
licensed to render behavioral healthcare services in accordance with applicable
statutes.
(4) These rules do not establish
procedures for regulating practices exclusively comprised of behavioral healthcare
practitioners that are otherwise licensed to render behavioral healthcare services
in accordance with applicable statutes.
Stat. Auth.: ORS 179.040, 179.505, 426.175,
430.010, 430.640 & 743.556
Stats. Implemented: 430.620
Hist.: MHD 4-1992, f. &
cert. ef. 8-14-92; MHS 14-2013(Temp), f. & cert. ef. 12-20-13 thru 6-18-14;
MHS 10-2014, f. 6-10-14, cert. ef. 6-19-14
309-012-0160
Award of Certificates
of Approval for New Applicants
(1) County governments and applicants
for direct contracts with the Division. Counties not operating under an agreement
with the Division, or those electing to add Division service elements which are
not included in their agreement, and other organizations seeking to become direct
contractors of the Division following the Division’s request for such contractors,
may be awarded Certificates of Approval based upon the following:
(a) A plan for the implementation
of the proposed services which meets the specifications of the Division;
(b) Written assurance, by an
officer with authority to obligate the applicant, that all applicable rules of the
Division for operation of the proposed services will be met, or if not, operated
in compliance with a waiver awarded by the Division; and
(c) Other reviews, such as those
described in OAR 309-012-0190(3), which in the judgment of the Division may assist
to predict compliance of the applicant’s proposed services with administrative
rules;
(d) Following the completion
of the application process, and any reviews deemed necessary by the Division, the
Division will make one of the following determinations:
(A) That the applicant may be
awarded a Certificate of Approval based on demonstration of its capacity and willingness
to operate in compliance with applicable administrative rules;
(B) That the applicant may be
awarded a Certificate of Approval with specified conditions as described in OAR
309-012-0200; or
(C) That the applicant will
not be awarded a Certificate of Approval because it has not demonstrated that it
will comply with applicable administrative rules.
(2) Community mental health
subcontracted providers, holding facilities, and performing providers:
(a) A provider seeking a Certificate
of Approval for the first time, in order to operate as a CMHP subcontractor, performing
provider under OAR 309-016-0070, or holding facility shall submit an application
to the CMHP in the county in which the service will be offered;
(b) Upon a determination by
the CMHP to subcontract with the provider for the purpose of providing a mental
health service, for the purpose of operating as a performing provider under OAR
309-016-0070, or as a holding facility, the CMHP shall apply to the Division for
a Certificate of Approval for the program;
(c) The CMHP application to
the Division must include the following:
(A) Provider identifying information
including corporate name, address, telephone number, and name of manager or director;
(B) Written assurance from an
officer with authority to obligate the applicant that the applicant will operate
in compliance with all administrative rules applicable to the services which will
be subcontracted to the provider, or a request for a variance to the applicable
administrative rules with which the provider will not comply.
(d) The Division may initiate
other reviews such as those described in OAR 309-012-0190(3) and may negotiate with
the CMHP, ongoing monitoring activities to be conducted to ensure the provider’s
compliance;
(e) Following the completion
of the application process described above, and any reviews deemed necessary by
the Division, the Division will make one of the following determinations:
(A) That the applicant may be
awarded a Certificate of Approval based on demonstration of its capacity and willingness
to comply with applicable administrative rules;
(B)
That the applicant may be awarded a Certificate of Approval with specified conditions
for action by the applicant for reaching substantial compliance with applicable
administrative rules, and/or specific monitoring activities which have been negotiated
with the CMHP as described in subsection (2)(d) of this rule;
(C) That the applicant will not be awarded
a Certificate of Approval because it has failed to demonstrate that it will comply
with applicable administrative rules, or that the kind and amount of monitoring
proposed by the CMHP will not assure the applicant’s compliance.
(f) Certificates of Approval
awarded to CMHP subcontractors are issued jointly between the Division and the CMHP.
To be valid, such a Certificate must bear the signature of the Assistant Administrator
of the Division and the CMHP director.
(3) Non-inpatient providers
seeking Division approval for insurance reimbursement purposes as provided in ORS
743.556(3). Non-inpatient providers seeking Division approval for insurance reimbursement
purposes may correspond with the Division specifically requesting application instructions
for Division approval as provided in ORS 743.556(3). Following a review of application
materials submitted by the provider, the Division may:
(a) Deny the application, in
writing, to the applicant because of a failure to pay the application fee described
in subsection (d) of this section; because the application materials demonstrate
that the provider does not comply with OAR 309-039-0500 through 309-039-0580; or
because of the provider’s failure to submit materials specified in the application
instructions; or
(b) Following review of the
application, the Division may:
(A) Schedule reviews such as
those described in OAR 309-012-0190(4) by Division personnel; or
(B) Notify the applicant of
other agencies or individuals with whom they may contract for the purpose of conducting
a review and providing a report of program compliance to the Division;
(C) Notify the applicant of
placement on a waiting list for review when Division staff or other agencies or
individuals are available to conduct a review.
(c) Following the reviews in
paragraph (b)(A) or (B) of this section, the Division will award or refuse to award
a Certificate of Approval to the applicant based on the findings of the review;
(d) The Division may require
payment of an application fee and a certification fee by non-inpatient programs
applying or reapplying for a Certificate of Approval under these rules, provided
the collection of such fees has been authorized for the Division budget by the Legislative
Assembly or the Emergency Board.
Stat. Auth.: ORS 179.040, 179.505,
426.175, 430.010, 430.640 & 743.556

Stats. Implemented: 430.620

Hist.: MHD 4-1992, f. &
cert. ef. 8-14-92
309-012-0170
Award of Certificates
of Approval to Providers at the Time These Rules are Adopted
(1) Mental health services providers.
Upon adoption of these rules, the Division may issue Certificates of Approval to
mental health services providers that are operating under an Intergovernmental Agreement,
direct contract, or at the request of the CMHP, to current subcontractors of the
CMHP.
(2) Non-inpatient providers
described in ORS 743.556 and holding facilities. Letters of Approval awarded under
ORS 743.556 and those awarded to holding facilities which remain in effect at the
time these rules are adopted, are the equivalent of a Certificate of Approval. These
may be maintained and renewed as Certificates of Approval as set forth in these
rules.
Stat. Auth.: ORS 179.040, 179.505,
426.175, 430.010, 430.640 & 743.556

Stats. Implemented: 430.620

Hist.: MHD 4-1992, f. &
cert. ef. 8-14-92
309-012-0180
Duration and Renewal
of Certificates of Approval
(1) Mental health services providers.
Unless revoked pursuant to OAR 309-012-0210 or unless otherwise specified on the
Certificate, Certificates of Approval for mental health services providers are valid
for three years.
(2) Non-inpatient providers.
Certificates of Approval for providers described in ORS 743.556(3) are valid for
up to three years or as otherwise specified on the Certificate. When a non-inpatient
provider seeks a Certificate of Approval to be in effect at the expiration date
of a Letter of Approval or a prior Certificate of Approval, an application conforming
to the instructions of the Division must be received no later than 90 days prior
to the expiration of the earlier Letter of Approval or Certificate.
Stat. Auth.: ORS 430.041, 430.640(l)
& 430.640(h)
Stats. Implemented:
Hist.: MHD 4-1992, f. &
cert. ef. 8-14-92; MHS 14-2013(Temp), f. & cert. ef. 12-20-13 thru 6-18-14;
MHS 10-2014, f. 6-10-14, cert. ef. 6-19-14
309-012-0190
Conduct of Periodic and
Interim Reviews
(1) Review Schedules:
(a) Periodic reviews of mental
health service providers will be routinely conducted every three years;
(b) Periodic reviews of non-inpatient
providers approved under ORS 743.556 will be conducted following the provider’s
submission of an application for recertification as set forth in OAR 309-012-0180;
(c) Interim reviews of any
provider holding a Certificate of Approval may be conducted at any time at the discretion
of the Division, or in the case of a subcontractor of a CMHP, at the discretion
of either Division or the CMHP.
(2) Notification of Review.
Notification that a review will be conducted, along with all instructions and requests
for information from the provider, will be made in writing by the designee of the
Assistant Administrator of the Division. For reviews of subcontractors initiated
by the CMHP, notification and instructions will be made by the designee of the director
of the CMHP.
(3) Initiation of Reviews:
(a) Reviews of new applicants,
and periodic reviews will be scheduled with at least one month’s notice from
the Division to the CMHP, direct contractor, or non-inpatient provider. Subcontractors
will be notified by the CMHP;
(b) The Division and, in
the case of a subcontractor, the CMHP may conduct an interim review without prior
notification when there is reason to believe any of the following conditions have
occurred or may occur:
(A) Operations of the service
provider threaten the health or safety of any person;
(B) The provider may act
to alter records or make them unavailable for inspections.
(c) Interim reviews other
than those specified in subsection (b) of this section will be initiated with at
least two week’s notice by the Division to the CMHP or direct contractor.
(4) Review Procedures. The
Division, and in the case of reviewing a subcontractor, the CMHP, may employ review
procedures which it deems adequate to determine compliance with applicable administrative
rules. These procedures may include but are not limited to:
(a) Entry and inspection
of any facility used in the delivery of approved services;
(b) A request for the submission
to the Division or CMHP, of a copy of any document required by applicable administrative
rules or needed to verify compliance with such rules, or access to such documents
for on-site review. Such documentation could include, for example, records of utilization
and quality assurance reviews, copies of portions of selected consumer records,
and copies of staff academic degrees or professional licenses;
(c) The completion by the
provider of self-assessment checklists reporting compliance or non-compliance with
specific rule requirements; and
(d) Conduct of interviews
with, and administration of questionnaires to persons knowledgeable of service operations,
including, for example, staff and management of a provider, governing and advisory
board members, allied agencies, service consumers, their family members, and significant
others;
(e) In the case of subcontracts
and reviews initiated by the county, the county may request Division assistance
in conducting the reviews.
(5) Organizational Provider
Assessment Information
(a) In addition to the review
procedures outlined in Section 309-012-0057, the Division will ensure that the following
minimum information will be obtained during the site reviews;
(b) A current program description
that reflects the type and scope of behavioral health services provided by the applicant;
(c) Provider policies regarding
credentialing practices of individual practitioners. The policies must reflect
current credentialing standards as defined by nationally accepted accrediting bodies
such as The Joint Commission, the National Committee for Quality Assurance, and/or
URAC;
(d) Copies of the provider’s
liability insurance coverage;
(e) Copies of the provider’s
policies and procedures regarding seclusion and restraint practices; and
(f) Copies of the provider’s
Code of Conduct.(6) Reports of Review Findings:
(a) Completion Deadlines.
The Division will issue a completed report of review findings, a Certificate of
Approval, and any conditions to approval, or denial of approval within 60 days of
the completion of an on-site review, or within 60 days of the date of submission
of all review materials which have been requested for the purpose of conducting
the review, whichever is later;
(b) Content and scope of
reports. Reports of reviews will include the following:
(A) A description of the
review findings regarding program operations relative to applicable administrative
rules, and contract or agreement provisions;
(B) A specification of any
conditions set as described in OAR 309-012-0200, which the provider must meet, and
the time permitted to meet the conditions;
(C) A statement clarifying
the provider’s approval status; and
(D) An appendix containing
any report of findings or observations clearly qualified as unrelated to the provider’s
approval status which may be useful as information and recommendations to the service
provider or the CMHP.
(c) Transmittal of Reports.
Each report shall be issued along with a document of transmission signed by the
Assistant Administrator of the Division, and any Certificates of Approval being
awarded;
(d) Report Distribution.
The Division will address and issue reports as follows:
(A) Reports of reviews of
a directly operated or subcontracted portion of a community mental health program
will be issued to the local mental health authority;
(B) Reports of reviews of
direct contractors of the Division will be issued to the signator(s) of the direct
contract; and, the Chairperson of the Board of Directors of the contractor;
(C) Reports of reviews of
holding facilities which are not subcontractors of a community mental health program,
and reviews of non-inpatient providers will be issued to the provider’s officer
or employer requesting the review.
Stat. Auth.: ORS 179.040, 179.505, 426.175,
430.010, 430.640 & 743.556
Stats. Implemented: 430.620
Hist.: MHD 4-1992, f. &
cert. ef. 8-14-92; MHS 14-2013(Temp), f. & cert. ef. 12-20-13 thru 6-18-14;
MHS 10-2014, f. 6-10-14, cert. ef. 6-19-14
309-012-0200
Establishment of Conditions
to the Award of Certificates of Approval
Based upon a finding that a
provider does not operate in compliance with an applicable administrative rule,
other than as set forth in OAR 309-012-0210(1), the Division may establish conditions
to the award and/or continuation of a Certificate of Approval:
(1) Division Discretion. The
Division, and, in the case of a subcontractor, the Division and CMHP, may elect
to place conditions on approval of a provider in situations in which the alternative
would be denial or revocation of approval because of a failure to substantially
comply with applicable rules as described in OAR 309-012-0210(2). The decision to
employ special conditions rather than revoke or refuse to award approval will be
based on criteria such as the following:
(a) The expressed willingness
of the provider to gain compliance with applicable rules;
(b) The apparent adequacy of
actions proposed by the provider to gain compliance;
(c) The availability of alternative
providers to address any service needs that would be unmet if the provider were
not allowed conditions to approval as an alternative to revocation or refusal to
award a Certificate of Approval;
(d) The provider’s historical
compliance with Division rules and conditions.
(2) Method of Establishment:
(a) Conditions to approval shall
be communicated in writing and issued along with a document of transmission signed
by the Assistant Administrator of the Office of Division;
(b) Each written condition shall
specify the time period allowed to gain compliance and any interim steps for obtaining
such compliance.
Stat. Auth.: ORS 179.040, 179.505,
426.175, 430.010, 430.640 & 743.556

Stats. Implemented: 430.620

Hist.: MHD 4-1992, f. &
cert. ef. 8-14-92
309-012-0210
Certificate Denial or
Revocation
(1) Immediate Denial or Revocation.
The Division, or in the case of a subcontractor provider, either the Division or
the CMHP may refuse to renew or may immediately revoke a Certificate of Approval,
without a prior notice or hearing when the applicant or provider:
(a) Has demonstrated substantial
failure to comply with applicable rules such that the health or safety of individuals
is jeopardized and the applicant fails to correct the noncompliance within the time
specified by the Division;
(b) Has demonstrated a substantial
failure to comply with applicable rules such that the health or safety of individuals
is jeopardized during two reviews within a six-year period;
(c) Has failed to maintain any
State of Oregon license which is a prerequisite for providing services that were
approved;
(d) Is a county, or direct contractor
that has terminated its agreement or contract with the Division for the provision
of the approved services, or when the approval is to a subcontract provider of such
a county or direct contractor;
(e) Is approved to provide a
service as a CMHP subcontractor, whose subcontract is terminated;
(f) Continues to employ personnel
who have been convicted of any felony, or a misdemeanor associated with the provision
of mental health services;
(g) Falsifies information required
by the Division regarding services to consumers, or information verifying compliance
with rules; or
(h) Refuses to submit or allow
access to information for the purpose of verifying compliance with applicable rules
when notified to do so as set forth in OAR 309-012-0190(2), or fails to submit such
information following the date specified for such a submission in the written notification.
(2) Denial or Revocation with
Notice. Following a Division finding that there is a substantial failure to comply
with applicable rules beyond the conditions in section (1) of this rule, such that,
in the Division’s view the state’s purposes in approving the services
are not or will not be met, the Division may, with 30 days notice, refuse to award
or renew, or may revoke a Certificate of Approval.
(3) Informal Conference. Within
ten calendar days following a 30-day notice issued under section (2) of this rule,
the Division shall give the provider an opportunity for an informal conference at
a location of the Division’s choosing. Following such a conference, the Division
may proceed with denial or revocation effective on the 30th day following the notice
issued under section (2) of this rule, or may approve the provider, or set conditions
to approval as described in OAR 309-012-0200 rather than denying or revoking approval.
(4) Hearing. Following issuance
of a notice of Certificate revocation or denial, the Division shall provide the
opportunity for a hearing as set forth in OAR 309-012-0220.
(5) A county may employ process
consistent with the above, or processes adopted by resolution of the local mental
health authority for revoking the approval of a subcontract provider.
Stat. Auth.: ORS 179.040, 179.505,
426.175, 430.010, 430.640 & 743.556

Stats. Implemented: 430.620

Hist.: MHD 4-1992, f. &
cert. ef. 8-14-92
309-012-0220
Hearings
(1) Request for Hearing. Upon
written notification by the Division of revocation or denial to issue or renew a
Certificate, pursuant to OAR 309-012-0210(1) and (2), the provider shall beentitled to a hearing in accordance with ORS Chapter 183.
The request for hearing shall include an admission or denial of each factual matter
alleged by the Division and shall affirmatively allege a short, plain statement
of each relevant affirmative defense the provider may have.
(2) Hearing rights under OAR 309-012-0210(1).
The immediate suspension or denial of a Certificate under OAR 309-012-0210(1) is
made pending a fair hearing not later than the tenth day after such suspension or
denial.
(3) Issue at hearing after immediate
suspension or denial pursuant to OAR 309-012-0210(1)(a). The issue at a hearing
on Certificate denial or revocation pursuant to this rule is limited to whether
the provider was or is in compliance at the end of the time specified by the Division
following the finding of substantial failure to comply.
Stat. Auth.: ORS 179.040, 179.505,
426.175, 430.010, 430.640 & 743.556

Stats. Implemented: 430.620

Hist.: MHD 4-1992, f. &
cert. ef. 8-14-92
309-012-0230
Availability of Information to Coordinated
Care Organizations and Other Health Plans
Upon completion of the site review process
and the issuance of a Certificate of Approval for Mental Health Services, the Division
shall make copies of the following information available to Coordinated Care Organizations
and other health plans for the purpose of credentialing a provider:
(1) A current program description
that reflects the type and scope of behavioral health services provided by the applicant;
(2) Provider policies and
procedures regarding the provider’s credentialing practices of individual
clinicians;
(3) Statements of provider’s
liability insurance coverage;
(4) An attestation from the
Authority verifying that the provider has passed a screening and meets the minimum
requirements to Medicaid provider;
(5) Reports detailing the
findings of the Division’s site review of the provider;
(6) The provider’s
Medicaid Vendor Identification Number issued by the Authority;
(7) Copies of the provider’s
policies and procedures regarding seclusion and restraint practices; and
(8) Copies of the provider’s
Code of Conduct.
Stat. Auth.: ORS 413.042 & 430.256
Stats. Implemented: ORS 430.01030,
430.306, 430.397, 430.405, 430.450, 430.630, 430.850, 443.400, 813.020, 813.260
& 813.500
Hist.: MHS 14-2013(Temp),
f. & cert. ef. 12-20-13 thru 6-18-14; MHS 10-2014, f. 6-10-14, cert. ef. 6-19-14

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