The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

QUESTIONS ABOUT THE CONTENT OR MEANING OF THIS AGENCY'S RULES?
CLICK HERE TO ACCESS RULES COORDINATOR CONTACT INFORMATION

 



DEPARTMENT OF HUMAN SERVICES,

AGING AND PEOPLE WITH DISABILITIES AND DEVELOPMENTAL DISABILITIES




 

DIVISION 1
ADMINISTRATIVE RULEMAKING AND MEDICAID

AND LONG TERM CARE (MLTCQRAC) NOTICE REQUIREMENTS


Medicaid Long Term Care Quality and Reimbursement Advisory Council

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 NOTE: OAR 411-001-0000 relating to the Notice Rule for Rulemaking, was repealed effective 6-1-06.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

411-001-0100
Purpose
(1) The purpose of the rules in OAR
chapter 411, division 001 is to establish procedures for the operation of the Medicaid
Long Term Care Quality and Reimbursement Advisory Council (Council).
(2) The Council was established
by the 1995 Legislative Assembly and consists of 12 stakeholders including the Long
Term Care Ombudsman, consumers, advocates, and providers. Council appointments are
made by the Governor, the President of the Senate, the Speaker of the House, the
Governor's Commission on Senior Services, and the Oregon Disabilities Commission
as described in ORS 410.550.
(3) The Council is directed
to advise the Department of Human Services or the Oregon Health Authority on changes
or modifications to the Medicaid reimbursement system and the adverse and positive
effects of the changes or modifications on the quality of long term care and community-based
services and reimbursement for long term care and community-based services.
Stat. Auth.: ORS 410.070, 410.555
Stats. Implemented: ORS 410.550
- 410.555
Hist.: SSD 7-1996, f. 8-30-96,
cert. ef. 9-1-96; SPD 18-2006, f. 5-12-06, cert. ef. 6-1-06; SPD 18-2009, f. 12-23-09,
cert. ef. 1-1-10; SPD 49-2013, f. 12-17-13, cert. ef. 1-1-14
411-001-0110
Definitions
(1) "Authority" means the Oregon Health
Authority.
(2) "Council" means the Medicaid
Long Term Care Quality and Reimbursement Advisory Council.
(3) "Department" means the
Department of Human Services.
(4) "Medicaid Reimbursement
System" means the method or methodology associated with reimbursing providers of
long term care and community-based services under the Department. The Medicaid reimbursement
system does not include rates established by collective bargaining, rates established
by actuarial calculations, or rate increases that have been approved and funded
by the Legislature.
(5) "Quality" means the degree
to which long term care systems, services, and supplies for individuals and populations
increase the likelihood of positive outcomes.
(6) "These Rules" mean the
rules in OAR chapter 411, division 001.
Stat. Auth.: ORS 410.070 & 410.555
Stats. Implemented: ORS 410.550–410.555
Hist.: SSD 7-1996, f. 8-30-96,
cert. ef. 9-1-96; SPD 18-2006, f. 5-12-06, cert. ef. 6-1-06; SPD 18-2009, f. 12-23-09,
cert. ef. 1-1-10; SPD 49-2013, f. 12-17-13, cert. ef. 1-1-14
411-001-0115
Council Administration
Council By-Laws supplement ORS 410.550
to 410.555 and these rules.
Stat. Auth.: ORS 410.070, 410.555
Stats. Implemented: ORS 410.550
- 410.555
Hist.: SPD 18-2009, f. 12-23-09,
cert. ef. 1-1-10
411-001-0118
Council Scope
(1) At the beginning of each legislative
session, the Council shall review the Governor's Recommended Budget for the Department.
The Council may submit a recommendation in support or opposition of the Governor's
Recommended Budget.
(2) The Department or Authority
shall submit any proposed change or modification to the Medicaid reimbursement system
to the Council for the Council's review and recommendation.
(3) Upon review of any proposed
change or modification under section (2) of this rule, the Council shall issue a
written advisory recommendation to the Department or Authority as described in OAR
411-001-0120.
(4) Prior to implementing
any change or modification to the Medicaid reimbursement system, the Department
or Authority shall submit the Council's written recommendation to the Legislative
Assembly or to the Emergency Board if the Legislative Assembly is not in session.
(5) If the Council has a
disagreement with any change or modification to the Medicaid reimbursement system,
the Department or Authority shall obtain the approval of the Legislative Assembly
or the Emergency Board if the Legislative Assembly is not in session, before instituting
the proposed change or modification. A proposed change or modification with an estimated
fiscal impact of $100,000 or less is exempt from this provision.
(6) The Department shall
inform the Council of all rate changes within the Department's Aging and People
with Disabilities Programs, including rates established by collective bargaining,
rates established by actuarial calculations, and rate increases that have been approved
and funded by the Legislature.
(7) The Council may review
the Department's strategic initiatives in order to assess the likelihood of increased
quality for individuals served by the Department.
Stat. Auth.: ORS 410.070 & 410.555
Stats. Implemented: ORS 410.550–410.555
Hist.: SPD 18-2009, f. 12-23-09,
cert. ef. 1-1-10; SPD 49-2013, f. 12-17-13, cert. ef. 1-1-14
411-001-0120
Council Operation
(1) Within 60 calendar days after receipt
from the Department or Authority of any proposed change or modification to the Medicaid
reimbursement system, the Council shall issue a written advisory recommendation
to the Department or Authority. The 60-day period begins the day following delivery
to the chairperson of the Council if a proposed change or modification is faxed,
hand-delivered, or e-mailed. Otherwise, the 60-day period begins the third day after
the date of mailing first class.
(2) A written advisory recommendation
issued by the Council must state:
(a) Whether the Council supports
or opposes the proposed change or modification;
(b) Whether the Council concludes
that the proposed change or modification shall have an adverse or positive effect
on the quality of long term care and community-based services provided under the
Oregon Medicaid program; and
(c) The basis for the Council's
recommendation, which must include:
(A) The reason for the Council's
position;
(B) A list of the principal
documents, reports, or studies, if any, relied upon in considering the proposed
change or modification; and
(C) Other information deemed
appropriate by the Council.
(3) Timeline for written
recommendation.
(a) Notwithstanding section
(1) of this rule, the Department or Authority may shorten the time within which
the Council must issue a written recommendation if the Department or Authority decides
to adopt a proposed change or modification by temporary rule and if the Department
or Authority prepares a written statement in which the Department or Authority:
(A) Finds that failure to
make proposed changes or modifications promptly is likely to result in serious prejudice
to the public interest or to the interests of individuals receiving Department or
Authority services, providers of long term care or community-based services, or
other affected parties;
(B) Specifies reasons why
the Department or Authority's failure to act promptly is likely to result in serious
prejudice to those interests;
(C) States the need for the
proposed change or modification and how the change or modification is intended to
meet the need;
(D) Lists the principal documents,
reports, or studies, if any, prepared or relied upon by the Department or Authority
in evaluating the need for the proposed change or modification; and
(E) Cites the legal authority
relied upon and bearing upon the adoption, amendment, or suspension of the rule
if the proposed change or modification is to be made by administrative rule.
(b) However, the Department
or Authority may not shorten the time for written recommendation to less than five
business days.
(4) If the Department or
Authority intends to adopt an administrative rule that directly or indirectly proposes
a change or modification to the Medicaid reimbursement system, the Department or
Authority may not proceed with notice requirements provided for in ORS 183.335 until
the Department or Authority has received the Council's written recommendation as
described in section (2) or (3) of this rule.
Stat. Auth.: ORS 410.070 & 410.555
Stats. Implemented: ORS 410.550
- 410.555
Hist.: SSD 7-1996, f. 8-30-96,
cert. ef. 9-1-96; SPD 18-2006, f. 5-12-06, cert. ef. 6-1-06; SPD 18-2009, f. 12-23-09,
cert. ef. 1-1-10; SPD 49-2013, f. 12-17-13, cert. ef. 1-1-14; APD 13-2014(Temp),
f. 5-8-14, cert. ef. 5-9-14 thru 11-5-14; APD 32-2014, f. 8-26-14, cert. ef. 9-1-14
411-001-0500
Contested
Case Hearings
(1) OAR 411-001-0500,
411-001-0510, and 411-001-0520 apply to all contested case hearing requests authorized
under OAR chapter 411, except to the extent that:
(a) There
is another conflicting rule in OAR chapter 411 that applies to the hearing request;
or
(b) There
is a rule in OAR chapter 411 that applies a conflicting rule in OAR chapter 461,
division 025 to the hearing request.
(2) The Department
of Human Services (Department) conducts contested case hearings in accordance with
the Attorney General's model rules in OAR chapter 137, division 003, except to the
extent that Department rules are permitted to and provide for different procedures.
(3) The Department
may not provide the telephone number and addresses of a witness if the Department
has a reasonable concern that the release of information may affect the safety of
the witness.
(4) The Department’s
contested case hearings based on hearing requests authorized in OAR chapter 411
are not open to the public and are closed to nonparticipants, except nonparticipants
may attend subject to the consent of the parties and the Department, as well as
applicable confidentiality laws.
(5) The Department
has adopted the exceptions to the Attorney General's model rules set out in section
(3) of this rule and OAR 411-001-0510(6) due to caseload volume and because these
model rule discovery procedures would unduly complicate or interfere with the hearing
process.
Stat. Auth: ORS
409.050

Stats. Implemented:
ORS 409.010

Hist.: SPD
14-2012(Temp), f. & cert. ef. 10-5-12 thru 4-3-13; SPD 6-2013, f. & cert.
ef. 4-2-13
411-001-0510
Lay Representation
in Contested Case Hearings
(1) Subject to the approval of the Attorney
General, an officer or employee of the Department of Human Services (Department)
is authorized to appear on behalf of the Department in the following types of hearings
conducted by the Office of Administrative Hearings:
(a) Eligibility for public
assistance services or other benefits available through a waiver or state plan administered
by the Department’s Aging and People with Disabilities (APD) or Office of
Developmental Disability Services (ODDS), including but not limited to the level
or amount of benefits, and effective date;
(b) Eligibility for medical
benefits, the level and amount of benefits, and effective date;
(c) Eligibility for Supplemental
Nutrition Assistance Program (SNAP), the level and amount of benefits, and effective
date, and the termination, suspension, reduction, or denial of benefits.
(d) Client overpayments and
intentional program violations related to public assistance or medical assistance,
SNAP, waivered or state plan service benefits or medical benefits;
(e) Medical assistance, including
but not limited to eligibility for services available through a waiver or state
plan for medical assistance, the level and amount of services or benefits, and the
termination, suspension, reduction, or denial of medical assistance services, prior
authorizations, or medical management decisions; and
(f) Consumer-employed provider
matters, including but not limited to provider enrollment or denial of enrollment,
overpayment determinations, audits, and sanctions; and
(g) Provider enrollment or
denial of enrollment, provider overpayments, audits, and audit sanctions.
(2) A Department officer
or employee acting as the Department’s representative may not make legal argument
on behalf of the Department.
(a) "Legal argument" includes
arguments on:
(A) The jurisdiction of the
Department to hear the contested case;
(B) The constitutionality
of a statute or rule or the application of a constitutional requirement to the Department;
and
(C) The application of court
precedent to the facts of the particular contested case proceeding.
(b) "Legal argument" does
not include presentation of motions, evidence, examination and cross-examination
of witnesses, or presentation of factual arguments or arguments on:
(A) The application of the
statutes or rules to the facts in the contested case;
(B) Comparison of prior actions
of the Department in handling similar situations;
(C) The literal meaning of
the statutes or rules directly applicable to the issues in the contested case;
(D) The admissibility of
evidence; and
(E) The correctness of procedures
being followed in the contested case hearing.
(3) When an officer or employee
appears on behalf of the Department, the administrative law judge shall advise the
Department's representative of the manner in which objections may be made and matters
preserved for appeal. Such advice is of a procedural nature and does not change
applicable law on waiver or the duty to make timely objection.
(4) If the administrative
law judge determines that statements or objections made by the Department representative
appearing under section (1) of this rule involve legal argument as defined in this
rule, the administrative law judge shall provide reasonable opportunity for the
Department representative to consult the Attorney General and permit the Attorney
General to present argument at the hearing or to file written legal argument within
a reasonable time after conclusion of the hearing.
(5) The Department is subject
to the Code of Conduct for Non-Attorney Representatives at Administrative Hearings,
which is maintained by the Oregon Department of Justice and available at http://www.doj.state.or.us.
A Department representative appearing under section (1) of this rule must read and
be familiar with the Code of Conduct for Non-Attorney Representatives at Administrative
Hearings.
(6) When a Department officer
or employee represents the Department in a contested case hearing, requests for
admission and written interrogatories are not permitted.
Stat. Auth: ORS 409.050
Stats Implemented: ORS 183.452
& 409.010
Hist.: SPD 6-2013, f. &
cert. ef. 4-2-13; SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD
44-2013, f. 12-13-13, cert. ef. 12-15-13; APD 15-2014, f. & cert. ef. 6-4-14
411-001-0520
Late Contested
Case Hearing Requests
(1) When the Department
of Human Services (Department) receives a completed hearing request that is not
filed within the timeframe required by the applicable rule in OAR chapter 411 but
is filed no later than the deadlines set out in section (2) of this rule:
(a) The Department
shall refer the hearing request to the Office of Administrative Hearings for a contested
case hearing on the merits of the Department's action described in the notice when:
(A) The Department
finds that the claimant and claimant's representative did not receive the notice
and did not have actual knowledge of the notice; or
(B) The Department
finds good cause that the claimant did not meet the timeframe required due to excusable
mistake, surprise, excusable neglect (which may include neglect due to significant
cognitive or health issues), circumstances beyond the claimant’s control,
reasonable reliance on the statement of a Department employee or an adverse provider
relating to procedural requirements, or due to fraud, misrepresentation, or other
misconduct of the Department or a party adverse to the claimant.
(b) The Department
refers the request for a hearing to the Office of Administrative Hearings for a
contested case proceeding to determine whether the claimant is entitled to a hearing
on the merits if there is a dispute between the claimant and the Department about
either of the following paragraphs.
(A) The claimant
or claimant's representative received the notice or had actual knowledge of the
notice. At the hearing, the Department must show that the claimant or claimant's
representative had actual knowledge of the notice or that the Department mailed
or electronically mailed the notice to the correct address of the claimant or claimant's
representative, as provided to the Department.
(B) The claimant
has established good cause for a contested case hearing on the merits under paragraph
(a)(B) of this section.
(c) The Department
may only dismiss such a request for hearing as untimely without a referral to the
Office of Administrative Hearings if the following requirements are met:
(A) The undisputed
facts show that the claimant does not qualify for a hearing under this section;
and
(B) The notice
was served personally or by registered or certified mail.
(2) The Department
shall consider whether a late hearing request meets the late request criteria set
out in section (1) of this rule:
(a) When
the hearing request is received up to 120 days after a notice became a final order
by default if no provider is a party to the contested case.
(b) When
the hearing request is received up to 60 days after a notice became a final order
by default if at least one provider is a party to the contested case.
(3) Unless
required otherwise by the Servicemembers Civil Relief Act, the Department may dismiss
a request for hearing as untimely if the Department receives a completed hearing
request after the applicable deadline in section (2) of this rule.
Stat. Auth.: ORS
409.050 & 411.103

Stats. Implemented:
ORS 409.010 & 411.103

Hist.: SPD
6-2013, f. & cert. ef. 4-2-13; SPD 12-2013, f. 5-31-13, cert. ef. 6-1-13

The official copy of an Oregon Administrative Rule is
contained in the Administrative Order filed at the Archives Division,
800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the
published version are satisfied in favor of the Administrative Order.
The Oregon Administrative Rules and the Oregon Bulletin are
copyrighted by the Oregon Secretary of State. Terms
and Conditions of Use