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DEPARTMENT OF HUMAN SERVICES,

AGING AND PEOPLE WITH DISABILITIES AND DEVELOPMENTAL DISABILITIES




 

DIVISION 318
INDIVIDUAL RIGHTS, COMPLAINTS,
NOTIFICATION OF PLANNED ACTION,

AND CONTESTED CASE HEARINGS FOR DEVELOPMENTAL DISABILITY
SERVICES
411-318-0000
Statement of Purpose and Scope
(1) The rules in OAR chapter 411, division
318 prescribe:
(a) The rights of individuals
receiving developmental disability services;
(b) The process for reporting
and investigating a complaint regarding dissatisfaction with a developmental disability
service or provider;
(c) The requirements for
notification in the event a developmental disability service is denied, reduced,
suspended, or terminated and the contested case hearing process for challenging
a denial, reduction, suspension, or termination of a developmental disability service;
and
(d) The contested case hearing
process for challenging an involuntary reduction, transfer, or exit.
(2) The rules in OAR chapter
411, division 318 apply to the developmental disability services and service settings
described in:
(a) OAR chapter 411, division
300 for the Children's Intensive In-Home Services, Behavior Program;
(b) OAR chapter 411, division
305 for family support services for children with intellectual or developmental
disabilities;
(c) OAR chapter 411, division
308 for in-home support for children with intellectual or developmental disabilities;
(d) OAR chapter 411, division
320 for community developmental disability programs;
(e) OAR chapter 411, division
323 for agency certification and endorsement to provide services to individuals
with intellectual or developmental disabilities in community-based settings;
(f) OAR chapter 411, division
325 for 24-hour residential settings for children and adults with intellectual or
developmental disabilities;
(g) OAR chapter 411, division
328 for supported living settings for adults with intellectual or developmental
disabilities;
(h) OAR chapter 411, division
330 for comprehensive in-home support for adults with intellectual or developmental
disabilities;
(i) OAR chapter 411, division
340 for support services for adults with intellectual or developmental disabilities;
(j) OAR chapter 411, division
345 for employment services for adults with intellectual or developmental disabilities;
(k) OAR chapter 411, division
346 for foster homes for children with intellectual or developmental disabilities;
(l) OAR chapter 411, division
350 for medically fragile children's services;
(m) OAR chapter 411, division
355 for the Medically Involved Children's Program; and
(n) OAR chapter 411, division
360 for adult foster homes for individuals with intellectual or developmental disabilities.
Stat. Auth.: ORS 409.050, 427.107
Stats. Implemented: ORS 183.411-471,
409.010, 427.107, 427.109
Hist.: APD 22-2014(Temp),
f. & cert. ef. 7-1-14 thru 12-28-14; APD 40-2014, f. 12-26-14, cert. ef. 12-28-14
411-318-0005
Definitions
Unless the context indicates otherwise,
the following definitions and the definitions in OAR 411-317-0000 apply to the rules
in OAR chapter 411, division 318:
(1) "Abuse" means:
(a) For a child:
(A) "Abuse" as defined in
ORS 419B.005; and
(B) "Abuse" as defined in
OAR 407-045-0260 when a child resides in a 24-hour residential setting licensed
by the Department as described in OAR chapter 411, division 325.
(b) For an adult, "abuse"
as defined in OAR 407-045-0260.
(2) "Adult" means an individual
who is 18 years or older with an intellectual or developmental disability.
(3) "CDDP" means "Community
Developmental Disability Program" as defined in OAR 411-320-0020.
(4) "Chemical Restraint"
means the use of a psychotropic drug or other drugs for punishment or to modify
behavior in place of a meaningful behavior or treatment plan.
(5) "Child" means an individual
who is less than 18 years of age that has a provisional determination of an intellectual
or developmental disability.
(6) "CIIS" means "Children’s
Intensive In-Home Services". CIIS include the services described in:
(a) OAR chapter 411, division
300 for the Children’s Intensive In-Home Services, Behavior Program;
(b) OAR chapter 411, division
350 for the Medically Fragile Children's Services Program; or
(c) OAR chapter 411, division
355 for the Medically Involved Children’s Program.
(7) "Claimant" means the
individual directly impacted by the action that is the subject of a hearing request.
(8) "Complaint" means an
oral or written expression of dissatisfaction with a developmental disability service
or provider.
(9) "Complaint Investigation"
means the investigation of a complaint that has been made to a proper authority
that is not covered by an investigation of abuse.
(10) "Complaint Log" means
the list of complaint-related information that is completed and maintained by a
local program.
(11) "Continuing Services"
means the continuation of a developmental disability service following the request
for a hearing until a Final Order is issued.
(12) "DD Administrative Hearing
Request" means form SDS 0443DD.
(13) "Denial" means any rejection
of a request for a developmental disability service or an increase in a developmental
disability service. A denial of a Medicaid service requires a Notification of Planned
Action.
(14) "Department" means the
Department of Human Services.
(15) "Department Hearing
Representative" means the person authorized by the Department to represent the Department
in a hearing as described in OAR 411-001-0500.
(16) "Department Staff" means
the person employed by the Department who is knowledgeable in a particular subject
matter. For the purposes of the complaint process, Department staff may not be involved
in a specific complaint prior to the receipt of the complaint or the request for
a review of the complaint.
(17) "Developmental Disability
Services" mean the services listed in OAR 411-318-0000 provided to an individual
with an intellectual or developmental disability.
(18) "Director" means the
Director of the Department of Human Services or the designee of the Director, which
may include Department Staff.
(19) "Exit" means termination
or discontinuance of a Department-funded developmental disability service by a licensed
or certified provider.
(20) "Good Cause" means an
excusable mistake, surprise, excusable neglect (which may include neglect due to
a significant cognitive or health issue), circumstances beyond the control of a
claimant, reasonable reliance on the statement of an employee of the Department
or an adverse provider relating to procedural requirements, fraud, misrepresentation,
or other misconduct of the Department or a party adverse to a claimant.
(21) "Guardian" means the
parent of a minor child or a person or agency appointed and authorized by a court
to make decisions about services for a child or an adult.
(22) "Hearing" means a contested
case hearing subject to OAR 137-003-0501 to 137-003-0700, which results in a Final
Order.
(23) "Individual" means a
child or an adult applying for, or determined eligible for, Department-funded services.
Unless otherwise specified, references to individual also include the representative
of the individual, who has the ability to act for the individual and to exercise
the rights of the individual.
(24) "Informal Conference"
means the discussion between a claimant, the representative of the claimant, Department
staff, and a Department representative that is help prior to a hearing to address
any matters pertaining to the hearing, as described in OAR 411-318-0025. An administrative
law judge does not participate in an informal conference. The informal conference
may result in resolution of the issue.
(25) "Informal Discussion"
means the conversation between an individual or the representative of the individual
and the designee of the Department or local program who received the complaint to
address the content of the complaint. The informal discussion may result in resolution
of the issue.
(26) "Involuntary Reduction"
means a provider has made the decision to reduce services provided to an individual
without prior approval from the individual.
(27) "Involuntary Transfer"
means a provider has made the decision to transfer an individual without prior approval
from the individual.
(28) "Legal Representative"
means a person who has the legal authority to act for an individual.
(a) For a child, the legal
representative is the parent of the child unless a court appoints another person
or agency to act as the guardian of the child; and
(b) For an adult, the legal
representative is the attorney at law who has been retained by or for the adult,
the person acting under the authority granted in a power of attorney, or the person
or agency authorized by a court to make decisions about services for the adult.
(29) "Local Program" means
the local CDDP, Support Services Brokerage, provider organization, CIIS program,
or other certified, licensed, or endorsed provider or agency with which the Department
contracts to provide developmental disability services and is providing services
to the individual with whom the complaint is associated.
(30) "Mechanical Restraint"
means any mechanical device, material, object, or equipment attached or adjacent
to the body of an individual that the individual cannot easily remove or easily
negotiate around that restricts freedom of movement or access to the body of the
individual.
(31) "Notice of Involuntary
Reduction, Transfer, or Exit" means form SDS 0719DD. This form is part of the AFH/DD
Mandatory Written Notice of Exit or Transfer.
(32) "Notification of Planned
Action" means form SDS 0947. The Notification of Planned Action is the written decision
notice issued to an individual in the event that a developmental disability service
is denied, reduced, suspended, or terminated.
(33) "OAH" means the Office
of Administrative Hearings.
(34) "OHA" means the Oregon
Health Authority.
(35) "Personal Agent" means
personal agent as defined in OAR 411-340-0020.
(36) "Person-Centered Planning":
(a) Means a timely and formal
or informal process driven by an individual, includes people chosen by the individual,
ensures the individual directs the process to the maximum extent possible, and the
individual is enabled to make informed choices and decisions consistent with 42
CFR 441.540.
(b) Person-centered planning
includes gathering and organizing information to reflect what is important to and
for the individual and to help:
(A) Determine and describe
choices about personal goals, activities, services, providers, service settings,
and lifestyle preferences;
(B) Design strategies and
networks of support to achieve goals and a preferred lifestyle using individual
strengths, relationships, and resources; and
(C) Identify, use, and strengthen
naturally occurring opportunities for support at home and in the community.
(c) The methods for gathering
information vary but all are consistent with the cultural considerations, needs,
and preferences of the individual.
(37) "Program Director" means
the Director of a local program or the designee of the Director.
(38) "Program Staff" means
a person employed by the local program who is knowledgeable in a particular subject
matter. For the purposes of the complaint process, program staff may not be involved
in a specific complaint prior to the receipt of the complaint or the request for
a review of the complaint.
(39) "Protective Physical
Intervention" means any manual physical holding of or contact with an individual
that restricts freedom of movement.
(40) "Provider" means a person,
agency, organization, or business selected by an individual that provides recognized
Department-funded services and is approved by the Department or other appropriate
agency to provide Department-funded services.
(41) "Provider Organization"
means an entity selected by an individual or the representative of the individual
and paid with service funds that:
(a) Is primarily in business
to provide supports for individuals with intellectual or developmental disabilities;
(b) Provides supports for
the individual through employees, contractors, or volunteers; and
(c) Receives compensation
to recruit, supervise, and pay the person who actually provides support for the
individual.
(42) "Representative" means
any adult, such as a parent, family member, guardian, legal representative, advocate,
or other person, who is chosen by an individual or the legal representative of the
individual to represent the individual in connection with the provision of developmental
disability services or during the complaint or hearing process. The representative
may not be a Department, CDDP, or Support Services Brokerage employee acting in
official capacity. An individual or a legal representative of the individual is
not required to choose a representative.
(43) "Request for Service"
means:
(a) Submission of a completed
application for developmental disability services as described in OAR 411-320-0080;
(b) A written request for
a new developmental disability service or provider; or
(c) A written request for
a change in a developmental disability service currently provided.
(44) "Service" means "developmental
disability services" as defined in this rule.
(45) "Service Funds" means
state public funds or Medicaid funds used to purchase developmental disability services.
(46) "Services Coordinator"
means an employee of the Department, CDDP, or other agency that contracts with the
county or Department, who provides case management services including, but not limited
to, planning, procuring, coordinating, and monitoring developmental disability services.
(47) "Support Services Brokerage"
means "brokerage" as defined in OAR 411-340-0020.
(48) "These Rules" mean the
rules in OAR chapter 411, division 318.
(49) "Transfer" means movement
of an individual from a service setting to another service setting administered
or operated by the same provider.
(50) "Written Outcome" means
the written response from the Department or the local program to a complaint following
a review of the complaint.
Stat. Auth.: ORS 409.050, 427.107
Stats. Implemented: ORS 183.411-471,
409.010, 427.107, 427.109
Hist.: APD 22-2014(Temp),
f. & cert. ef. 7-1-14 thru 12-28-14; APD 40-2014, f. 12-26-14, cert. ef. 12-28-14
411-318-0010
Individual Rights
(1) The individual rights described
in this rule apply to all individuals eligible for or receiving developmental disability
services. A parent or guardian may place reasonable limitations on the rights of
a child.
(2) While receiving developmental
disability services, an individual has the right to:
(a) Be free and protected
from abuse or neglect and to report any incident of abuse or neglect without being
subject to retaliation;
(b) Be free from seclusion,
unauthorized training or treatment, protective physical intervention, chemical restraint,
or mechanical restraint and assured that medication is administered only for the
clinical needs of the individual as prescribed by a health care provider unless
an imminent risk of physical harm to the individual or others exists and only for
as long as the imminent risk continues;
(c) Individual choice for
an adult to consent to or refuse treatment unless incapable and then an alternative
decision maker must be allowed to consent to or refuse treatment for the adult.
For a child, the parent or guardian of the child must be allowed to consent to or
refuse treatment, except as described in ORS 109.610 or limited by court order;
(d) Informed, voluntary,
written consent prior to receiving services, except in a medical emergency or as
otherwise permitted by law;
(e) Informed, voluntary,
written consent prior to participating in any experimental programs;
(f) A humane service environment
that affords reasonable protection from harm, reasonable privacy in all matters
that do not constitute a documented health and safety risk to the individual, and
access and the ability to engage in private communications with any public or private
rights protection program, services coordinator, personal agent, and others chosen
by the individual through personal visits, mail, telephone, or electronic means;
(g) Contact and visits with
legal and medical professionals, legal and designated representatives, family members,
friends, advocates, and others chosen by the individual, except where prohibited
by court order;
(h) Participate regularly
in the community and use community resources, including recreation, developmental
disability services, employment services, school, educational opportunities, and
health care resources;
(i) For individuals less
than 21 years of age, access to a free and appropriate public education, including
a procedure for school attendance or refusal to attend;
(j) Reasonable and lawful
compensation for performance of labor, except personal housekeeping duties;
(k) Manage his or her own
money and financial affairs unless the right has been taken away by court order
or other legal procedure;
(l) Keep and use personal
property, personal control and freedom regarding personal property, and a reasonable
amount of personal storage space;
(m) Adequate food, housing,
clothing, medical and health care, supportive services, and training;
(n) Seek a meaningful life
by choosing from available services, service settings, and providers consistent
with the support needs of the individual identified through a functional needs assessment
and enjoying the benefits of community involvement and community integration:
(A) Services must promote
independence and dignity and reflect the age and preferences of the individual;
and
(B) The services must be
provided in a setting and under conditions that are most cost effective and least
restrictive to the liberty of the individual, least intrusive to the individual,
and that provide for self-directed decision-making and control of personal affairs
appropriate to the preferences, age, and identified support needs of the individual;
(o) An individualized written
plan for services created through a person-centered planning process, services based
upon the plan, and periodic review and reassessment of service needs;
(p) Ongoing opportunity to
participate in the planning of services in a manner appropriate to the capabilities
of the individual, including the right to participate in the development and periodic
revision of the plan for services, the right to be provided with a reasonable explanation
of all service considerations through choice advising, and the right to invite others
chosen by the individual to participate in the plan for services;
(q) Request a change in the
plan for services and a reassessment of service needs;
(r) A timely decision upon
request for a change in the plan for services;
(s) Advance written notice
of any action that terminates, suspends, reduces, or denies a service or request
for service and notification of other available sources for necessary continued
services;
(t) A hearing to challenge
an action that terminates, suspends, reduces, or denies a service or request for
service;
(u) Exercise all rights set
forth in ORS 426.385 and 427.031 if the individual is committed to the Department;
(v) Be informed at the start
of services and annually thereafter of the rights guaranteed by this rule, the contact
information for the protection and advocacy system described in ORS 192.517(1),
the procedures for reporting abuse, and the procedures for filing complaints, reviews,
or requests for hearings if services have been or are proposed to be terminated,
suspended, reduced, or denied;
(w) Have these rights and
procedures prominently posted in a location readily accessible to individuals and
made available to representatives of the individual;
(x) Be encouraged and assisted
in exercising all legal, civil, and human rights accorded to other citizens of the
same age, except when limited by a court order;
(y) Be informed of and have
the opportunity to assert complaints as described in OAR 411-318-0015 with respect
to infringement of the rights described in this rule, including the right to have
such complaints considered in a fair, timely, and impartial complaint procedure
without any form of retaliation or punishment; and
(z) Freedom to exercise all
rights described in this rule without any form of reprisal or punishment.
(3) The rights described
in this rule are in addition to, and do not limit, all other statutory and constitutional
rights that are afforded all citizens including, but not limited to, the right to
exercise religious freedom, vote, marry, have or not have children, own and dispose
of property, and enter into contracts and execute documents unless specifically
prohibited by law.
(4) An individual who is
receiving developmental disability services has the right under ORS 430.212 and
OAR 411-320-0090 to be informed that a family member has contacted the Department
to determine the location of the individual and to be informed of the name and contact
information of the family member, if known.
(5) The rights described
in this rule may be asserted and exercised by an individual, the legal representative
of an individual, and any representative designated by an individual.
(6) Nothing in this rule
may be construed to alter any legal rights and responsibilities between a parent
and child.
(7) A guardian is appointed
for an adult only as is necessary to promote and protect the well-being of the adult.
A guardianship for an adult must be designed to encourage the development of maximum
self-reliance and independence of the adult, and may be ordered only to the extent
necessitated by the actual mental and physical limitations of the adult. An adult
for whom a guardian has been appointed is not presumed to be incompetent. An adult
with a guardian retains all legal and civil rights provided by law, except those
that have been expressly limited by court order or specifically granted to the guardian
by the court. Rights retained by an adult include, but are not limited to, the right
to contact and retain counsel and to have access to personal records. (ORS 125.300).
Stat. Auth.: ORS 409.050, 427.107
Stats. Implemented: ORS 183.411-471,
409.010, 427.107, 427.109
Hist.: APD 22-2014(Temp),
f. & cert. ef. 7-1-14 thru 12-28-14; APD 40-2014, f. 12-26-14, cert. ef. 12-28-14
411-318-0015
Complaints
(1) The Department and local programs
must address all complaints in accordance with their policies and procedures and
these rules.
(2) An individual or the
representative of the individual may file a complaint at any time. A complaint may
include, but is not limited to:
(a) An expression of dissatisfaction
with a developmental disability service; or
(b) An allegation of circumstances
or events that are contrary to law, rule, policy, or otherwise adverse to the interests
of an individual.
(3) The complaint process
described in this rule does not apply to a complaint in the following situations:
(a) The complaint is filed
anonymously. Anonymous complaints are reviewed by the Governor's Advocacy Office;
(b) The merits of the complaint
have been, or are going to be, decided by a judge or a juvenile court ruling;
(c) The subject matter of
the complaint is not related to a developmental disability service or a provider;
or
(d) The subject matter of
the complaint is subject to review under the following:
(A) ORS 419B.005 to 419B.050
for child abuse reports;
(B) OAR chapter 309, division
118 for state institutions operated by the Oregon Health Authority;
(C) OAR 407-005-0025 and
407-005-0030 for discrimination against people with disabilities;
(D) OAR 407-005-0100 to 407-005-0120
for conduct of Department personnel;
(E) OAR chapter 411, division
020 for adult protective services;
(F) OAR 410-141-0260 to 410-141-0266
for Oregon Health Plan, Prepaid Health Plans;
(G) OAR 413-010-0420 for
Department child welfare decisions;
(H) OAR 413-010-0700 to 413-010-0750
for child protective services dispositions;
(I) OAR 413-120-0060 for
adoption placement selections; and
(J) OAR chapter 582, division
020 for vocational rehabilitation service determinations.
(4) If a complaint alleges
circumstances that meet the criteria for an investigation of abuse, the allegation
must be immediately reported to the appropriate protective service entity, such
as the Department, CDDP, Support Services Brokerage, CIIS, Office of Adult Abuse
Prevention and Investigations, child welfare, or law enforcement.
(5) If an individual or the
representative of the individual makes a complaint identified in section (3) of
this rule, the local program or Department must assist the individual or the representative
of the individual with filing the complaint with the appropriate entity, if requested
by the individual or the representative of the individual.
(6) The local programs must
have and implement written policies and procedures regarding individual complaints
and the complaint process. A copy of the policies and procedures for resolving complaints
must be maintained on file at the office of the local program and must be available
to staff, individuals, representatives of the individuals, providers, and the Department.
The policies and procedures must include, but are not limited to:
(a) Method and form used
to submit a complaint (form SDS 0946 may be used);
(b) Process for reviewing
and resolving a complaint;
(c) Time frames for responding
to a complaint as set forth by this rule; and
(d) Documentation to be used
in response to a complaint as set forth in this rule.
(7) COMPLAINT LOG.
(a) The local programs must
maintain a complaint log. At a minimum, the complaint log must include:
(A) The name of the individual
for which the complaint is being filed;
(B) The name of the person
making the complaint, if known;
(C) The name of the person
taking the complaint;
(D) The nature of the complaint,
including if there was a request for new or changed developmental disability services
which may result in a hearing;
(E) The date the complaint
was received;
(F) The date the complaint
was acknowledged in writing;
(G) The written outcome of
the complaint; and
(H) The date that the written
outcome was mailed.
(b) Complaints regarding
personnel issues and allegations of abuse must be maintained separately from the
complaint log.
(c) The complaint log for
the local program documents only complaints pertaining to the local program.
(A) In the event that an
individual or the representative of the individual has a complaint against another
agency or program, the local program must assist the individual or the representative
of the individual with filing the complaint against the other agency or program.
(B) The local program does
not document complaints against another agency or program in the complaint log for
the local program, but does document the support provided by the local program in
the progress notes for the individual.
(8) SCREENING OF COMPLAINTS.
The local programs must screen all complaints for potential hearing related issues.
In the event that a complaint appears to allege a denial, reduction, suspension,
or termination of a developmental disability service, the local program must issue
a Notification of Planned Action and advise the individual or the representative
of the individual of the right to a hearing and assist the individual or the representative
of the individual with filing a hearing request, if so desired. In the event that
the individual or the representative of the individual decides to file a complaint
rather than a hearing request, the decision of the individual or the representative
of the individual must be documented in the file for the individual.
(9) FILING A COMPLAINT.
(a) Complaints may be made
orally, in writing, or on a complaint form (SDS 0946 may be used).
(b) A complaint regarding
dissatisfaction with the services of a provider organization may be filed with the
Department or directly with the provider organization, Support Services Brokerage,
or CDDP.
(c) A complaint regarding
dissatisfaction with the services of a Support Services Brokerage or CDDP may be
filed with the Department or directly with the Support Services Brokerage or CDDP.
(d) A complaint regarding
dissatisfaction with CIIS may be filed with the Department or directly with the
CIIS program.
(e) A complaint regarding
dissatisfaction with the Department must be filed with the Department.
(10) PROCESS FOR ADDRESSING
COMPLAINTS.
(a) The local program or
Department must provide written acknowledgement of a complaint to the individual
or the representative of the individual within five business days from the receipt
of the complaint.
(b) The written acknowledgement
must inform the individual or the representative of the individual of the opportunity
for an informal discussion.
(A) Choosing to engage in
an informal discussion does not preclude the individual or the representative of
the individual from receiving a written outcome following review of the complaint
by the local program or Department.
(B) The informal discussion
includes a conversation between the individual or the representative of the individual
and the Program Director of the local program or the Director of the Department.
(C) The informal discussion
must occur within 10 business days of the written acknowledgement of the complaint.
(D) In the event that a resolution
is reached during the informal discussion, the local program or Department must
mail a written outcome to the individual and the representative of the individual
within 10 business days of the informal discussion. A copy of the written outcome
must be maintained in the file for the individual.
(c) The local program or
Department must complete a review of the complaint and issue a written outcome to
the individual and the representative of the individual within 45 days from the
receipt of the complaint, unless both parties mutually agree to extend the timeframe.
The extension may not exceed an additional 45 days.
(A) The review of the complaint
must include, but is not limited to, an investigation and records review of the
complaint by the Program Director of the local program or the Director of the Department.
(B) The written outcome of
the complaint may be issued on the complaint form or may be issued in a separate
document. The written outcome must include:
(i) The rationale for the
outcome;
(ii) The reports, documents,
and other information relied upon in deciding the outcome of the complaint, or a
summary of the reports, documents, and other information relied upon;
(iii) Information about the
right of the individual or the representative of the individual to review the documents
relied upon in determining the outcome (Notification of Rights SDS 0948); and
(iv) Information about the
right of the individual or the representative of the individual to request a review
of the written outcome (Notification of Rights SDS 0948).
(11) REQUEST FOR REVIEW.
(a) An individual or the
representative of the individual may request a review of a written outcome issued
by a local program within 30 days of the date identified on the written outcome.
(A) If a provider organization
issued the written outcome, the individual or the representative of the individual
may request a review of the written outcome by:
(i) The local CDDP, Support
Services Brokerage, or CIIS program; or
(ii) The Department.
(B) If a CDDP, Support Services
Brokerage, or CIIS program issued the written outcome, the individual or the representative
of the individual may request a review of the written outcome by the Department.
(C) If the Department issued
the written outcome, the individual or the representative of the individual may
request a review of the written outcome by OHA.
(D)The written outcome issued
by the OHA is the final response.
(b) The local CDDP, Support
Services Brokerage, CIIS program, Department, may uphold, alter, or overturn a written
outcome issued by a provider organization.
(c) The Department may uphold,
alter, or overturn a written outcome issued by a provider organization, local CDDP,
Support Services Brokerage, or CIIS.
(d) OHA may uphold, alter,
or overturn a written outcome issued by the Department.
(12) PROCESS FOR ADDRESSING
AND RESOLVING A REQUEST FOR REVIEW.
(a) The receiving entity
of a request for a review of a written outcome must acknowledge receipt of the request
by issuing a written acknowledgement to the individual and the representative of
the individual within five business days from the receipt of the request for a review.
(b) The written acknowledgement
must inform the individual and the representative of the individual of the opportunity
for an informal discussion.
(A) Choosing to engage in
an informal discussion does not preclude the individual or the representative of
the individual from pursuing a review of the written outcome by the receiving entity.
(B) The informal discussion
includes a conversation between the individual or the representative of the individual
and the Program Director of the local program or Director of the Department.
(C) The informal discussion
must occur within 10 business days of the written acknowledgement of the request
for a review.
(D) In the event that a resolution
is reached during the informal discussion, the local program, the Department, or
OHA must mail a written determination to the individual and the representative of
the individual within 10 business days of the informal discussion. A copy of the
written determination must be maintained in the file for the individual.
(c) The local program, the
Department, or OHA must review the written outcome and issue a written determination
to the individual and the representative of the individual within 45 days from the
receipt of the request for a review unless both parties mutually agree to extend
the timeframe. The extension may not exceed an additional 45 days.
(A) The review of the written
outcome must include, but is not limited to, an investigation and records review
by the Program Director of the local program or the Director of the Department or
OHA.
(B) The written determination
must include:
(i) The rationale for the
determination;
(ii) The reports, documents,
and other information relied upon in making the determination or a summary of the
reports, documents, and other information relied upon; and
(iii) Information about the
right of the individual or the representative of the individual to review the documents
relied upon in making the determination.
Stat. Auth.: ORS 409.050, 427.107
Stats. Implemented: ORS 183.411-471,
409.010, 427.107, 427.109
Hist.: APD 22-2014(Temp),
f. & cert. ef. 7-1-14 thru 12-28-14; APD 40-2014, f. 12-26-14, cert. ef. 12-28-14
411-318-0020
Notification of Planned Action
(1) An individual and the representative
of the individual must receive a written Notification of Planned Action in the event
that a developmental disability service is denied, reduced, suspended, or terminated.
(2) The Notification of Planned
Action must be on the form prescribed by the Department (SDS 0947). The Notification
of Planned Action must include:
(a) The specific date the
Notification of Planned Action is mailed or hand delivered to the individual and
the representative of the individual;
(b) The effective date of
the denial, reduction, suspension, or termination;
(A) For a denial of service,
the effective date is the same date that the Notification of Planned Action is mailed
or hand delivered to the individual and the representative of the individual.
(B) For a reduction, suspension,
or termination of service, the effective date is:
(i) For a Notification of
Planned Action mailed or hand delivered on or before the 18th of the month, the
end of the calendar month in which the Notification of Planned Action is mailed
or hand delivered to the individual and the representative of the individual, if
applicable; or
(ii) For a Notification of
Planned Action mailed or hand delivered on or after the 19th of the month, the end
of the calendar month following the month in which the Notification of Planned Action
is mailed or hand delivered to the individual and the representative of the individual,
if applicable; or
(iii) No fewer than 10 days
after the date the Notification of Planned Action is mailed or hand delivered to
the individual and the representative of the individual, if applicable.
(c) The specific service
or unit of service to be denied, reduced, suspended, or terminated;
(d) The rationale for the
denial, reduction, suspension, or termination, including a reference to the specific
reports, documents, or other information relied on in making the determination;
(e) The specific sections
of the rules or statutes upon which the determination is based;
(f) Notification that the
documents relied upon may be reviewed by the individual or the representative of
the individual; and
(g) Notification that if
the individual or the representative of the individual disagrees with the determination
to deny, reduce, suspend, or terminate a service, the individual has the right to
request a hearing, or the representative of the individual has the right to request
a hearing on the behalf of the individual, as provided in ORS chapter 183 and OAR
411-318-0025. The notification of the right to a hearing must include:
(A) The timeline for requesting
a hearing;
(B) How to request a hearing;
(C) The right to receive
assistance from the local program in completing and submitting a request for hearing;
(D) The right of the individual
to receive continuing services at the same level until a Final Order has been issued
or, at the request of the individual or the representative of the individual, or
until the individual has exhausted the appeals processes identified in OAR 411-318-0025;
(E) Notification of the time
frame within which the individual or the representative of the individual must request
continuing services;
(F) Notification of how,
when, and where the individual or the representative of the individual may request
continuing services; and
(G) Notification that the
individual may be required to repay the Department for any continuing services received
during the hearing process if the Final Order upholds the determination to reduce,
suspend, or terminate the services.
(3) The Notification of Planned
Action must be made available using language, format, and presentation methods appropriate
for effective communication according to the needs and abilities of the individual
and the representative of the individual.
Stat. Auth.: ORS 409.050, 427.107
Stats. Implemented: ORS 183.411-471,
409.010, 427.107, 427.109
Hist.: APD 22-2014(Temp),
f. & cert. ef. 7-1-14 thru 12-28-14; APD 40-2014, f. 12-26-14, cert. ef. 12-28-14
411-318-0025
Contested Case Hearings for Reductions,
Suspensions, Terminations, or Denials
(1) An individual or the representative
of the individual may request a hearing, as provided in ORS chapter 183, if the
individual experiences a denial, reduction, suspension, or termination of a developmental
disability service or in instances when a timely Notification of Planned Action
has not been provided.
(2) HEARING REQUESTS.
(a) The request for a hearing
must be made within 90 days from the date on a Notification of Planned Action.
(b) The request for a hearing
may be made orally, in writing, or by completing the DD Administrative Hearing Request
(form SDS 0443DD).
(A) ORAL HEARING REQUESTS.
(i) The individual or the
representative of the individual may orally express a desire for a hearing to the
local program or Department staff.
(ii) Upon receipt of an oral
request for a hearing, the local program or Department staff must complete the DD
Administrative Hearing Request and submit the form to the Central Office of the
Department within three business days of receiving the request for a hearing. A
copy of the form must be mailed to the individual and the representative of the
individual.
(B) WRITTEN HEARING REQUESTS.
(i) The individual or the
representative of the individual may provide a written request for a hearing to
the local program or Department staff.
(ii) Upon receipt of a written
request for a hearing, the local program or Department staff must complete the DD
Administrative Hearing Request and submit the form to the Central Office of the
Department within three business days of receiving the request for a hearing. A
copy of the form must be mailed to the individual and the representative of the
individual.
(c) The Department processes
late hearing requests as described in OAR 411-001-0520.
(3) CONTINUING SERVICES PENDING
A FINAL ORDER.
(a) In the event of a reduction,
suspension, or termination of a developmental disability service, a claimant or
the representative of the claimant may request continuing services for the claimant
during the hearing process. To receive continuing services, a claimant or the representative
of the claimant must either:
(A) Request a hearing before
the effective date of action; or
(B) Within 10 business days
after the effective date of action identified on the Notification of Planned Action,
request a hearing and continuing services.
(b) The Department grants
a late request for continuing services when the Department determines a claimant
or the representative of a claimant has good cause for the late request.
(c) The claimant may be required
to pay back any benefits received during the hearing process if the Final Order
is not in the favor of the claimant.
(4) INFORMAL CONFERENCE.
(a) The Department staff,
Department representative, and the claimant or the representative of the claimant
may have an informal conference, without the presence of an administrative law judge,
to discuss the action that is the subject of the hearing request. An informal conference
may also be used to:
(A) Provide an opportunity
for the Department and the claimant or the representative of the claimant to settle
the matter;
(B) Ensure the claimant or
the representative of the claimant understands the reason for the action that is
the subject of the hearing request;
(C) Give the claimant or
representative of the claimant an opportunity to review the information that is
the basis for the action that is the subject of the hearing request;
(D) Inform the claimant or
the representative of the claimant of the rules that serve as the basis for the
action that is the subject of the hearing request;
(E) Give the Department and
the claimant or the representative of the claimant the chance to correct any misunderstanding
of the facts;
(F) Give the claimant or
the representative of the claimant an opportunity to provide additional information
to the Department; and
(G) Give the Department an
opportunity to review the action that is the subject of the hearing request.
(b) At any time prior to
the hearing date, the claimant or the representative of the claimant may request
an additional informal conference with a Department representative. At the discretion
of the Department representative, the Department representative may grant an additional
informal conference to facilitate the hearing process.
(c) The Department may provide
a claimant the reprieve sought at any time before a Final Order is issued.
(5) REPRESENTATION.
(a) A representative may
be chosen by a claimant to represent the interests of the claimant during an informal
conference and hearing.
(b) Employees for the Department,
CDDP, and Support Services Brokerage are authorized to appear as a witness on behalf
of the Department during an informal conference and hearing.
(6) HEARINGS NOT OPEN TO
THE PUBLIC. Non-participants may attend a hearing only with the consent of the claimant
or the representative of the claimant and the Department representative.
(7) WITHDRAWAL OF HEARING
REQUEST. A claimant or the representative of a claimant may withdraw a hearing request
at any time prior to the issuance of a Final Order. The withdrawal is effective
on the date the request for the withdrawal is received by OAH. The Department shall
issue an order of withdrawal to the last known address of the claimant. The claimant
or the representative of the claimant may cancel the withdrawal up to 10 business
days following the date the order of withdrawal is issued.
(8) DISMISSAL FOR FAILURE
TO APPEAR. A hearing request is dismissed by order when neither the claimant nor
the representative of the claimant appears by phone or in person at the hearing.
The dismissal order is effective on the date scheduled for the hearing. The Department
may cancel the dismissal order on request of the claimant or the representative
of the claimant upon a showing that the claimant or the representative of the claimant
has good cause for not attending the hearing or requesting a postponement.
(9) When the Department refers
a hearing under these rules to OAH, the Department shall indicate on the referral:
(a) Whether the Department
is authorizing OAH to issue a Final Order, a proposed order, or a proposed and Final
Order; and
(b) If the Department is
establishing an earlier deadline for written exceptions and argument because the
hearing request is being referred for an expedited hearing.
(10) FINAL ORDER. A Final
Order is the final action expressed in writing by OAH as described in OAR 137-003-0665.
A Final Order is issued within 90 days of the request for a hearing or within 90
days from the receipt of a proposed order or a proposed and Final Order from OAH.
(11) PROPOSED ORDERS. The
Department issues a Final Order after OAH issues a proposed order unless the Department
authorizes OAH to issue the Final Order under OAR 137-003-0655.
(12) PROPOSED AND FINAL ORDERS.
A proposed and Final Order becomes a Final Order 21 days after OAH issues a proposed
and Final Order unless:
(a) The claimant or the representative
of the claimant has filed written exception and written argument as described in
section (13) of this rule;
(b) The Department has issued
a revised order; or
(c) The Department has notified
OAH and the claimant or the representative of the claimant that the Department shall
issue the Final Order.
(13) EXCEPTIONS.
(a) The claimant or the representative
of the claimant may file a written exception and written argument to be considered
by the Department once OAH has issued either a proposed order or a proposed and
Final Order. The written exception and written argument must be postmarked to the
location indicated in the OAH order no later than 20 days after service of the proposed
order or proposed and Final Order unless an earlier deadline has been established
pursuant to section (9)(b) of this rule.
(b) Unless the Department
receives a timely written exception and written argument as described above, the
Department shall issue the Final Order unless the Department authorizes OAH to issue
the Final Order in compliance with OAR 137-003-0655.
(14) PETITION OF FINAL ORDER.
A claimant or the representative of the claimant may file a petition for reconsideration
or rehearing up to 60 days after a Final Order is served. The petition must be filed
with the entity that issued the Final Order unless stated otherwise on the Final
Order.
Stat. Auth.: ORS 409.050, 427.107
Stats. Implemented: ORS 183.411-471,
409.010, 427.107, 427.109
Hist.: APD 22-2014(Temp),
f. & cert. ef. 7-1-14 thru 12-28-14; APD 40-2014, f. 12-26-14, cert. ef. 12-28-14
411-318-0030
Contested Case Hearings for Provider
Notices of Involuntary Transfers or Exits
(1) This rule applies to involuntary
reductions, transfers, or exits by a provider, including a licensed or certified
provider organization, who has a contract with the Department, CDDP, or Support
Services Brokerage. This rule does not apply to providers who have a direct employer-employee
relationship with an individual or the employer representative of the individual.
(2) The individual must be
given the opportunity to dispute an involuntary reduction, transfer, or exit by
requesting a hearing as provided in ORS chapter 183.
(3) An individual or the
representative of the individual may request a hearing either orally or in writing
when the individual and the representative of the individual receives a Notice of
Involuntary Reduction, Transfer, or Exit (SDS 0719DD).
(a) To request a hearing
in writing:
(A) The individual or the
representative of the individual must complete the Administrative Hearing Request
form included with the Notice of Involuntary Reduction, Transfer, or Exit and submit
the form to the Central Office of the Department for processing as described on
the form; or
(B) The individual or the
representative of the individual may meet with a staff person of the local program
or Department to complete the Administrative Hearing Request form included with
the Notice of Involuntary Reduction, Transfer, or Exit. After meeting with the individual
or the representative of the individual, the CDDP, Support Services Brokerage, or
Department must submit the Administrative Hearing Request form to the Central Office
of the Department within three business days. A copy of the form must be mailed
to the individual and the representative of the individual.
(b) To request a hearing
orally, the individual or the representative of the individual must orally express
the desire for a hearing to a staff person of the CDDP, Support Services Brokerage,
or Department. Upon receipt of an oral request for a hearing, the CDDP, Support
Services Brokerage, or Department must complete the Administrative Hearing Request
form included with the Notice of Involuntary Reduction, Transfer, or Exit and submit
the Administrative Hearing Request form to the Central Office of the Department
within three business days. A copy of the form must be mailed to the individual
and the representative of the individual.
(4) Upon receipt of the Administrative
Hearing Request form for a Notice of Involuntary Reduction, Transfer, or Exit, the
Central Office of the Department must:
(a) Refer the hearing request
to OAH within five business days from the receipt of the hearing request;
(b) Assist the claimant or
the representative of the claimant in gathering and submitting exhibits; and
(c) Act as liaison between
OAH and the CDDP or Support Services Brokerage responsible for the services of the
claimant.
(5) OAH communicates directly
with the claimant and the representative of the claimant regarding informal conference
dates, hearing dates, and the Final Order as defined in OAR 137-003-0070.
(6) If an individual or the
representative of an individual requests a hearing prior to the effective date of
the action reported on the Notice of Involuntary Reduction, Transfer, or Exit, the
individual must receive the same services until receipt of the Final Order.
(7) When an individual has
been given less than 30 days advanced written Notice of Involuntary Reduction, Transfer,
or Exit due to a medical emergency or because the individual is engaging in behavior
that poses an imminent danger to self or others, and the individual or the representative
of the individual has requested a hearing as described in this rule, the provider
must continue provision of service to the individual until receipt of the Final
Order.
Stat. Auth.: ORS 409.050, 427.107
Stats. Implemented: ORS 183.411-471,
409.010, 427.107, 427.109
Hist.: APD 22-2014(Temp),
f. & cert. ef. 7-1-14 thru 12-28-14; APD 40-2014, f. 12-26-14, cert. ef. 12-28-14


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