Stat. Auth.:ORS409.050 Stats. Implemented:ORS410.600, 410.606-619, 427.007 Hist.: Apd 30-2014(Temp), F. & Cert. Ef. 7-1-14 Thru 12-28-14; Apd 48-2014, F. 12-26-14, Cert. Ef. 12-28-14

Link to law: http://arcweb.sos.state.or.us/pages/rules/oars_400/oar_411/411_375.html
Published: 2015

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 375
PERSONAL SUPPORT WORKERS PROVIDINGDEVELOPMENTAL
DISABILITY IN-HOME SERVICES
411-375-0000
Purpose
(1) The rules in OAR chapter 411, division
375 establish the standards and procedures governing personal support workers and
the fiscal services provided on behalf of individuals who employ or contract with
a personal support worker.
(2) Personal support workers
provide home and community-based waiver, state plan, and general fund home care
services to individuals eligible for developmental disability services and receiving
supports authorized by the Department, Children's Intensive In-Home Services (CIIS),
Community Developmental Disability Programs (CDDP), or Support Services Brokerages.
Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 410.600,
410.606-619, 427.007
Hist.: APD 30-2014(Temp),
f. & cert. ef. 7-1-14 thru 12-28-14; APD 48-2014, f. 12-26-14, cert. ef. 12-28-14
411-375-0010
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 375.
(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) "Active Provider Number"
means an identifying number that is issued by the Department to a personal support
worker after the personal support worker completes the qualification and enrollment
conditions as described in OAR 411-375-0020. An Active Provider Number is a provider
number that is not currently in inactivated or terminated status.
(3) "ADL" means "activities
of daily living". ADL are basic personal everyday activities, such as eating, using
the restroom, grooming, dressing, bathing, and transferring.
(4) "Background Check" means
a criminal records and abuse check as defined in OAR 407-007-0210.
(5) "Burden of Proof" means
that the existence or nonexistence of a fact is established by a preponderance of
the evidence.
(6) "CDDP" means "Community
Developmental Disability Program" as defined in OAR 411-320-0020.
(7) "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 Medically Fragile Children's services; and
(c) OAR chapter 411, division
355 for the Medically Involved Children's Program.
(8) "Collective Bargaining
Agreement" means the Collective Bargaining Agreement between the Home Care Commission
and the Service Employees International Union, Local 503, Oregon Public Employees
Union regarding wages, hours, rules, and working conditions.
(9) "Community Transportation"
is transportation provided to enable an individual to gain access to community-based
state plan and waiver services, activities, and resources that are not medical in
nature. Community transportation is provided in the area surrounding the home of
the individual that is commonly used by people in the same area to obtain ordinary
goods and services.
(10) "Comprehensive Services"
means "comprehensive services" as defined in OAR 411-320-0020.
(11) "Confidentiality" means
the conditions for use and disclosure of specific information governed by other
laws and rules including, but not limited to, OAR 407-014-0000 to 407-014-0070 (Privacy
of Protected Information).
(12) "Department" means the
Department of Human Services.
(13) "Designated Representative"
means any adult, such as a parent, family member, guardian, advocate, or other person,
who is chosen by an individual or the legal representative of the individual, not
a paid provider for the individual, and authorized by the individual or the legal
representative of the individual to serve as the representative of the individual
or the legal representative of the individual in connection with the provision of
funded supports. An individual or a legal representative of the individual is not
required to appoint a designated representative.
(14) "Developmental Disability"
means "developmental disability" as defined in OAR 411-320-0020 and described in
411-320-0080.
(15) "Director" means the
Director of the Department of Human Services, Office of Developmental Disability
Services or the designee of the Director.
(16) "Employed Personal Support
Worker" means a personal support worker who is hired by an individual with an intellectual
or developmental disability or the representative of the individual. An employed
personal support worker is not an independent contractor.
(17) "Employer" means the
person who conducts the employer responsibilities described in these rules and applicable
rules for home care services. The employer may be the individual or a person selected
by the individual or the legal representative of the individual.
(18) "Enhanced Personal Support
Worker" means a personal support worker who is certified by the Home Care Commission
to provide services for individuals who require advanced medical or behavioral driven
services and supports as defined and assessed through a functional needs assessment
tool.
(19) "Exceptional Personal
Support Worker" means a personal support worker who is certified by the Home Care
Commission to provide services for individuals who require extensive medical or
behavioral driven services and supports, beyond the enhanced services provided by
an enhanced personal support worker, as assessed by a functional needs assessment
tool and whose service needs also require staff to be awake more than twenty hours
in a twenty-four hour period.
(20) "Evidence" means testimony,
writings, material objects, or other things presented to the senses that are offered
to prove the existence or nonexistence of a fact.
(21) "FICA" means "Federal
Insurance Contributions Act".
(22) "Fiscal Improprieties"
means financial misconduct involving the money, property, or benefits of an individual.
(a) Fiscal improprieties
include, but are not limited to, financial exploitation, borrowing money from an
individual, taking property or money from an individual, having an individual purchase
items for the personal support worker, forging the signature of an individual, falsifying
payment records, claiming payment for hours not worked, or similar acts intentionally
committed for financial gain.
(b) Fiscal improprieties
do not include the exchange of money, gifts, or property between a personal support
worker and an individual with whom the personal support worker is related unless
an allegation of financial exploitation, as defined in OAR 411-020-0002 or OAR 407-045-0260,
has been substantiated based on an adult protective services investigation.
(23) "Fiscal Intermediary"
means a person or entity that receives and distributes service funds on behalf of
an individual who employs or contracts with a personal support worker to provide
home care services.
(24) "Hearing" means a contested
case hearing subject to OAR 137-003-0501 to 137-003-0070, which results in a Final
Order.
(25) "Home Care Services"
mean the services provided in accordance with:
(a) OAR chapter 411, division
034 for state plan personal care services;
(b) OAR chapter 411, division
300 for the Children's Intensive In-Home Services, Behavior Program;
(c) OAR chapter 411, division
305 for family support services for children with intellectual or developmental
disabilities;
(d) OAR chapter 411, division
308 for in-home support for children with intellectual or developmental disabilities;
(e) OAR chapter 411, division
330 for comprehensive in-home support for adults with intellectual or developmental
disabilities;
(f) OAR chapter 411, division
340 for support services for adults with intellectual or developmental disabilities;
(g) OAR chapter 411, division
345 for employment services for individuals with intellectual or developmental disabilities;
(h) OAR chapter 411, division
350 for medically fragile children's services; or
(i) OAR chapter 411, division
355 for the Medically Involved Children's Program.
(26) "IADL" means "instrumental
activities of daily living". IADL include activities other than ADL required to
continue independent living, such as:
(a) Meal planning and preparation;
(b) Budgeting;
(c) Shopping for food, clothing,
and other essential items;
(d) Performing essential
household chores;
(e) Communicating by phone
or other media; and
(f) Traveling around and
participating in the community.
(27) "Imminent Danger" means
there is reasonable cause to believe the life or physical, emotional, or financial
well-being of an individual is in danger if no intervention is immediately initiated.
(28) "Inactive Provider Number"
means a personal support worker has a Department issued provider number that has
been terminated or inactivated by the failure to act in accordance with the qualifying
actions as described in OAR 411-375-0020. A personal support worker may not be paid
for work performed while their provider number is inactive.
(29) "Independent Contractor"
means "independent contractor" as defined in ORS 670.600.
(30) "Individual" means a
child or an adult with an intellectual or developmental disability applying for,
or determined eligible for, Department-funded services. Unless otherwise specified,
references to individual also include the legal or designated representative of
the individual, who has the ability to act for the individual and exercise the rights
of the individual.
(31) "Intellectual Disability"
means "intellectual disability" as defined in OAR 411-320-0020 and described in
411-320-0080.
(32) "ISP" means "Individual
Support Plan". An ISP includes the written details of the supports, activities,
and resources required for an individual to achieve and maintain personal goals
and health and safety. The ISP is developed at least annually to reflect decisions
and agreements made during a person-centered process of planning and information
gathering that is driven by the individual. The ISP reflects services and supports
that are important for the individual to meet the needs of the individual identified
through a functional needs assessment as well as the preferences of the individual
for providers, delivery, and frequency of services and supports. The ISP is the
plan of care for Medicaid purposes and reflects whether services are provided through
a waiver, the Community First Choice state plan, natural supports, or alternative
resources.
(33) "Lack of Skills, Knowledge,
or Ability to Adequately or Safely Provide Home Care Services" means a personal
support worker does not possess the skills to perform home care services as defined
in this rule. The personal support worker may not be physically, mentally, or emotionally
capable of providing home care services. The lack of skills may put an individual
at risk because the personal support worker fails to perform, or learn to perform,
the duties needed to adequately meet the needs of the individual.
(34) "Legal Representative":
(a) For a child, means 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, means an
attorney at law who has been retained by or for an individual, a person acting under
the authority granted in a power of attorney, or a person or agency authorized by
a court to make decisions about services for an individual.
(35) "Mandatory Reporter":
(a) Means any public or private
official as defined in OAR 407-045-0260 who:
(A) Comes in contact with
a child with or without an intellectual or developmental disability and has reasonable
cause to believe the child has suffered abuse, or comes in contact with any person
whom the public or private official has reasonable cause to believe abused a child,
regardless of whether the knowledge of the abuse was gained in the official capacity
of the public or private official; and
(B) While acting in an official
capacity, comes in contact with an adult with an intellectual or developmental disability
and has reasonable cause to believe the adult has suffered abuse, or comes in contact
with any person whom the public or private official has reasonable cause to believe
abused an adult.
(b) Nothing contained in
ORS 40.225 to 40.295 affects the duty to report imposed by this definition, except
that a psychiatrist, psychologist, clergy, attorney, or guardian ad litem appointed
under ORS 419B.231 is not required to report if the communication is privileged
under ORS 40.225 to 40.295.
(36) "Office of Administrative
Hearings" means the panel described in ORS 183.605 to 183.690 established within
the Employment Department to conduct contested case proceedings and other such duties
on behalf of designated state agencies.
(37) "Personal Agent" means
"personal agent" as defined in OAR 411-340-0020.
(38) "Personal Support Worker":
(a) Means a person:
(A) Who has an active or
inactive provider number.
(B) Who is either hired by
an individual with an intellectual or developmental disability or the representative
of the individual, or an independent contractor contracted by an individual with
an intellectual or developmental disability or the representative of the individual;
(C) Who receives money from
the Department for the purpose of providing home care services to an individual
in the home or community of the individual;
(D) Whose compensation for
providing home care services is provided in whole or in part through the Department,
CDDP, CIIS, or Support Services Brokerage.
(b) This definition of personal
support worker is intended to be interpreted consistently with ORS 410.600.
(39) "Preponderance of the
Evidence" means the greater weight of evidence, such as 51 percent vs. 49 percent
, that when weighed with the evidence opposed to it has more convincing force and
probable truth and accuracy than not.
(40) "Protective Service
and Abuse Rules" mean the rules described in OAR chapter 411, division 20, OAR chapter
407, division 45, and OAR chapter 943, division 45.
(41) "Provider" means a person,
organization, or business selected by an individual or the representative of an
individual and paid with service funds to provide home care services according to
the ISP for the individual.
(42) "Provider Enrollment"
means the process for enrolling a personal support worker employed or contracted
by an individual for the purpose of receiving payment for authorized home care services
provided to the individual. Provider enrollment includes the completion and submission
of a Provider Enrollment Agreement before receiving a provider number.
(43) "Provider Number" means
the identifying number issued to a personal support worker.
(44) "PSW" means "Personal
Support Worker" as defined in this rule.
(45) "PSW-IC" means "Personal
Support Worker-Independent Contractor". A PSW-IC is a personal support worker who
is contracted by an individual with an intellectual or developmental disability
or the representative of the individual. A PSW-IC is an independent contractor except
for purposes of collective bargaining.
(46) "Registry" means the
Provider Registry maintained by the Oregon Home Care Commission.
(47) "Restricted Personal
Support Worker" means the Department or the designee of the Department has placed
restrictions on the provider enrollment of a personal support worker as described
in OAR 411-375-0020.
(48) "Service Agreement":
(a) Is the written agreement
consistent with an ISP that describes at a minimum:
(A) Type of service to be
provided;
(B) Hours, rates, location
of services, and expected outcomes of services; and
(C) Any specific individual
health, safety, and emergency procedures that may be required, including action
to be taken if an individual is unable to provide for their own safety and the individual
is missing while in the community under the service of a contractor or provider
organization.
(b) For employed personal
support workers, the service agreement serves as the written job description.
(49) "Service Funds" means
state public funds or Medicaid funds used to purchase developmental disability services
for individuals enrolled in home care services as defined in this rule.
(50) "Services Coordinator"
means "services coordinator" as defined in OAR 411-320-0020.
(51) "Support Services Brokerage"
means "Brokerage" as defined in OAR 411-340-0020.
(52) "These Rules" mean the
rules in OAR chapter 411, division 375.
(53) "Unacceptable Background
Check" means an administrative process that produces information related to the
background of a person that precludes the person from being a personal support worker
for one or more of the following reasons:
(a) Under OAR 407-007-0275,
the person applying to be a personal support worker has been found ineligible due
to ORS 443.004;
(b) Under OAR 407-007-0275,
the person was enrolled as a personal support worker for the first time, or after
any break in enrollment, after July 28, 2009 and has been found ineligible due to
ORS 443.004; or
(c) A background check and
fitness determination has been conducted resulting in a "denied" status as defined
in OAR 407-007-0210.
Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 410.600,
410.606-619, 427.007
Hist.: APD 30-2014(Temp),
f. & cert. ef. 7-1-14 thru 12-28-14; APD 48-2014, f. 12-26-14, cert. ef. 12-28-14
411-375-0020
Provider Enrollment and Personal Support
Worker Qualifications and Orientation
(1) A personal support worker must possess
an active provider number issued by the Department to receive service funds from
the Department for providing home care services.
(2) An active provider number
with the Department is not a guarantee that a personal support worker shall receive
any minimum amount of work or payment from the Department, CDDP, CIIS, or Support
Service Brokerage.
(3) The CDDP, CIIS, or Support
Services Brokerage shall assist the Department in determining whether a personal
support worker meets the minimum qualifications to provide the authorized home care
services paid by the Department. This assistance may include, but is not limited
to:
(a) Facilitating a background
check;
(b) Verifying the legal eligibility
of a personal support worker to work; and
(c) Reviewing and verifying
the valid certifications or licenses for the personal support worker if required
to perform needed home care services.
(4) The Department, CDDP,
CIIS, or Support Service Brokerage may deny a provider enrollment in the following
circumstances:
(a) The applicant has been
suspended or terminated as a provider by another division within the Department
or the Oregon Health Authority;
(b) The applicant has a history
of violating protective service and abuse rules or has a founded report of child
abuse or substantiated adult abuse;
(c) The applicant has committed
fiscal improprieties;
(d) The applicant has demonstrated
a lack of skills, knowledge, or ability to adequately or safely provide home care
services;
(e) The applicant has an
unacceptable background check or the background check results in a closed case pursuant
to OAR 407-007-0325;
(f) The applicant is on the
list of excluded or debarred providers maintained by the Office of the Inspector
General (http://exclusions.oig.hhs.gov/);
(g) The Department, CDDP,
CIIS, or Support Services Brokerage has information that enrolling the applicant
as a personal support worker may put vulnerable individuals at risk; or
(h) The tax identification
number or Social Security number for the applicant does not match the legal name
of the applicant as verified by the Internal Revenue Service or Social Security
Administration.
(5) RESTRICTED PROVIDER ENROLLMENT.
(a) The Department may enroll
an applicant as a restricted personal support worker. A restricted personal support
worker may only provide services to a specific individual who is a family member,
neighbor, or friend.
(A) After conducting a weighing
test as described in OAR 407-007-0200 to 407-007-0370, the Department may approve
a restricted enrollment for an applicant with a prior criminal record, unless under
407-007-0275 the applicant has been found ineligible due to ORS 443.004.
(B) The Department may approve
a restricted enrollment for an applicant based on the lack of skills, knowledge,
or ability of the applicant to adequately or safely provide home care services.
(b) To remove restricted
personal support worker status, the applicant must complete a new application and
background check and be approved by the Department.
(6) A personal support worker
who is paid to provide home care services must:
(a) Be at least 18 years
of age;
(b) Have approval to work
based on a background check completed by the Department as described in OAR 407-007-0200
to 407-007-0370 and section (7) of this rule, and be free of convictions or founded
allegations of abuse by the appropriate agency including, but not limited to, the
Department, CDDP, CIIS, or Support Services Brokerage;
(c) Not have been convicted
of any of the disqualifying crimes listed in OAR 407-007-0275 unless hired or contracted
with prior to July 28, 2009 and remaining in the original position for which the
personal support worker was hired or contracted for;
(d) Be legally eligible to
work in the United States;
(e) Demonstrate by background,
education, references, skills, and abilities that the personal support worker is
capable of safely and adequately performing the tasks specified in an ISP, with
such demonstration confirmed in writing by an individual or the representative of
the individual, including:
(A) Ability and sufficient
education to follow oral and written instructions and keep any required records;
(B) Possess the physical
health, mental health, good judgment, and good personal character determined necessary
to provide home care services;
(C) Ability to communicate
with the individual; and
(D) Training of a nature
and type sufficient to ensure that the personal support worker has knowledge of
emergency procedures specific to the individual;
(f) Maintain confidentiality
and safeguard individual information. Unless given specific permission by an individual
or the representative of an individual, the personal support worker may not share
any personal information about the individual including medical, social service,
financial, public assistance, legal, or other personal details;
(g) Not be on the list of
excluded or debarred providers maintained by the Office of the Inspector General
(http://exclusions.oig.hhs.gov/);
(h) Complete and submit a
Provider Enrollment Agreement to the Department and possess a current provider number
issued by the Department;
(i) Have a tax identification
number or Social Security number that matches the legal name of the personal support
worker as verified by the Internal Revenue Service or Social Security Administration;
and
(j) If providing home care
services requiring professional licensure, possess a current and unencumbered license.
The individual, representative of the individual, Department, CDDP, CIIS, or Support
Service Brokerage must check the license status to verify the license is current
and unencumbered.
(7) BACKGROUND CHECKS.
(a) A subject individual
as defined in OAR 407-007-0210 may be approved for one position to work statewide
when the subject individual is working in the same employment role with the same
population. The Background Check Request Form must be completed by the subject individual
to show intent to work statewide.
(b) When a personal support
worker is approved without restrictions following a background check fitness determination,
the approval must meet the personal support worker provider enrollment requirement
whether the qualified entity is the Department, CDDP, CIIS, or Support Services
Brokerage.
(c) If a personal support
worker has been approved under OAR 407-007-0200 to 407-007-0370 on a background
check submitted to the Department between July 1, 2012 and June 30, 2014, the personal
support worker may use that approval notice to work statewide with the same population
until a new background check is needed. Statewide clearance does not apply to a
restricted personal support worker.
(d) Background check approval
is effective for two years from the date of fitness determination to provide home
care services except in the following circumstances:
(A) A new fitness determination
is conducted resulting in a change in approval status; or
(B) The Department has terminated
the provider enrollment for the personal support worker.
(e) The Department, CDDP,
CIIS, or Support Services Brokerage may conduct a background recheck more frequently
based on;
(A) Additional information
discovered about the personal support worker, such as possible criminal activity
or other allegations; or
(B) At the request of the
individual or employer. Upon request, the personal support worker must provide any
additional info to complete the updated background recheck within 30 days.
(f) A personal support worker
must self-report any potentially disqualifying condition as described in OAR 407-007-0280
and 407-007-0290 to the Department, CDDP, CIIS, or Support Services Brokerage within
24 hours.
(8) ORIENTATION.
(a) A personal support worker
who wants to be available for referral on the Registry must attend a Personal Support
Worker Orientation provided by the Department consistent with OAR 418-020-0020.
(b) A personal support worker
must attend a Personal Support Worker Orientation consistent with the Collective
Bargaining Agreement.
(9) ENHANCED AND EXCEPTIONAL
PERSONAL SUPPORT WORKERS. Enhanced Personal Support Workers and Exceptional Personal
Support Workers must meet the certification requirements as described in OAR 418-020-0030.
Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 410.600,
410.606-619, 427.007
Hist.: APD 30-2014(Temp),
f. & cert. ef. 7-1-14 thru 12-28-14; APD 48-2014, f. 12-26-14, cert. ef. 12-28-14
411-375-0030
Personal Support Worker-Individual Relationship
(1) A personal support worker may not
be:
(a) The parent of the individual
if the individual is less than 18 years of age;
(b) The legal representative
who has not appointed a designated representative to plan supports for the individual;
(c) A designated representative
of the individual.; or
(d) The spouse of the individual.
(2) For an employed personal
support worker, the relationship between a personal support worker and an individual
or the representative of the individual is an employee and employer relationship.
(3) For a PSW-IC, the relationship
between a PSW-IC and an individual or the representative of the individual is a
contractor relationship.
(4) It is the responsibility
of an employer to create and maintain:
(a) A written job description,
signed by the personal support worker and the employer, for each potential employed
personal support worker. The job description must contain:
(A) The elements from an
authorized ISP and supporting documents that are relevant to the position;
(B) The specific duties and
available hours to provide home care services as identified in the ISP; and
(C) Authorized hours of home
care services provided by the employed personal support worker to the individual.
Authorized hours may not exceed the maximum amounts of units of service authorized
in the ISP or annual plan.
(b) A written service agreement
for each PSW-IC must:
(A) Describe the services
and responsibilities of the PSW-IC;
(B) Contain all the elements
from an authorized ISP and supporting documents to assure the PSW-IC may execute
the service agreement; and
(C) Be signed by the parties
to the contract.
(5) An individual or the
representative of the individual carries primary responsibility for locating, interviewing,
screening, hiring, firing, or contracting with a personal support worker. The individual
or the representative of the individual has the right to employ or contract with
any personal support worker enrolled as a provider as described in OAR 411-375-0020
who meets the specific home care services program qualifications.
(6) The terms of the employer-employee
or contractor relationship are the responsibility of the individual or the representative
of the individual to establish at the time of hire or written service agreement.
The terms of employment may include dismissal or notice of resignation, work scheduling,
and absence reporting. The Support Services Brokerage, CDDP, or CIIS are available
to provide assistance in developing the service agreement with the individual in
accordance with all applicable home care services program rules.
Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 410.600,
410.606-619, 427.007
Hist.: APD 30-2014(Temp),
f. & cert. ef. 7-1-14 thru 12-28-14; APD 48-2014, f. 12-26-14, cert. ef. 12-28-14
411-375-0040
Fiscal and Accountability Responsibility
(1) DIRECT SERVICE PAYMENTS. The Department,
CIIS, CDDP, Support Services Brokerage, or contracted fiscal intermediary makes
payment to a personal support worker on behalf of an individual for all home care
services.
(a) Payment is considered
full payment for the home care services rendered. The personal support worker may
not, under any circumstances, demand or receive additional payment for home care
services from the individual or any other source.
(b) The Department only makes
payment for home care services that are authorized in an ISP or annual plan, and
included in a written job description or contract.
(c) The Department does not
make service funds available to an employer to pay a personal support worker.
(d) All service funds paid
to a personal support worker must come through a fiscal intermediary
(2) TIMELY SUBMISSION OF
CLAIMS. In accordance with 42 CFR 447.45, all claims for home care services must
be submitted within 12 months from the date of home care services in order to be
considered for payment. A claim submitted after 12 months from the date of home
care services may not be considered for payment.
(3) CLAIM OR ENCOUNTER SUBMISSION.
Submission of a claim, encounter, or other payment request document constitutes
the agreement of a personal support worker that:
(a) The home care services
were provided in compliance with the service agreement or job description in effect
on the date of service;
(b) The information on the
claim, encounter, or other payment request document, regardless of the format, is
true, accurate, and complete; and
(c) The personal support
worker understands that payment of the claim, encounter, or other payment request
document is from service funds and that any falsification or concealment of a material
fact may result in prosecution under federal and state laws.
(4) CLAIM OR ENCOUNTER AUTHORIZATION.
Authorization of a submitted claim, encounter, or other payment request document
by the employer, constitutes agreement that the personal support worker provided
services in accordance with the claim.
(5) ANCILLARY CONTRIBUTIONS.
(a) FICA. Acting on behalf
of the individual, the Department, CIIS, CDDP, Support Services Brokerage, or contracted
fiscal intermediary shall apply any applicable FICA regulations including:
(A) Withholding the FICA
contribution of the personal support worker from the payment to the personal support
worker; and
(B) Submitting the FICA contribution
of the individual and the amounts withheld from the payment to the personal support
worker to the Social Security Administration.
(b) BENEFIT FUND ASSESSMENT.
The Workers' Benefit Fund pays for programs that provide direct benefits to an injured
worker and the beneficiary of the injured worker and also assists an employer in
helping an injured worker return to work. The Department of Consumer and Business
Services sets the Workers' Benefit Fund assessment rate for each calendar year.
The Department, CDDP, CIIS, Support Services Brokerage, or contracted fiscal intermediary
calculates the hours rounded up to the nearest whole hour and deducts an amount
rounded up to the nearest cent. Acting on behalf of the individual, the Department,
CDDP, CIIS, Support Services Brokerage, or contracted fiscal intermediary:
(A) Deducts the share of
the Benefit Fund assessment rate for the personal support worker for each hour or
partial hour worked;
(B) Collects the share of
the Benefit Fund assessment rate for the individual for each hour or partial hour
of paid home care services received; and
(C) Submits the contributions
of the personal support worker and the individual to the Workers' Benefit Fund.
(c) The Department, CDDP,
CIIS, Support Services Brokerage, or contracted fiscal intermediary submits the
unemployment tax.
(6) STATE AND FEDERAL INCOME
TAX WITHHOLDING.
(a) The Department, CDDP,
CIIS, Support Services Brokerage, or contracted fiscal intermediary withholds state
and federal income taxes on all payments to personal support workers as indicated
in the Collective Bargaining Agreement.
(b) Employed personal support
workers must complete and return a current Internal Revenue Service (IRS) W-4 form.
A PSW-IC must complete and return a current IRS W-9 form.
(A) Personal support workers
working with individuals receiving services through a CDDP or Support Services Brokerage
must return all applicable IRS forms to the local office of the CDDP or Support
Services Brokerage.
(B) Personal support workers
working with individuals receiving services through CIIS must return the IRS forms
to the Central Office of the Department.
(C) The Department, CDDP,
CIIS, Support Services Brokerage, or contracted fiscal intermediary must apply standard
income tax withholding practices in accordance with 26 CFR 31.
Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 410.600,
410.606-619, 427.007
Hist.: APD 30-2014(Temp),
f. & cert. ef. 7-1-14 thru 12-28-14; APD 48-2014, f. 12-26-14, cert. ef. 12-28-14
411-375-0050
Personal Support Worker Benefits and Secondary
Expenses
(1) The only benefits available to personal
support workers are negotiated in the Collective Bargaining Agreement and provided
in Oregon Revised Statute. The Collective Bargaining Agreement does not include
participation in the Public Employees Retirement System or the Oregon Public Service
Retirement Plan. Personal support workers are not employees of the Department, CDDP,
CIIS, or Support Services Brokerage.
(2) Workers' compensation,
as defined in Oregon Revised Statute, is available to eligible personal support
workers as described in the Collective Bargaining Agreement. In order to receive
home care services provided by a personal support worker, an individual or the representative
of the individual must provide written authorization and consent to the Department
for the provision of workers' compensation insurance for the personal support worker.
(3) TRANSPORTATION. A personal
support worker may be reimbursed for providing community transportation related
to home care services if the community transportation is prior authorized by a services
coordinator or personal agent and reflected in the ISP for an individual. A personal
support worker providing community transportation must have a valid license to drive,
a good driving record, and proof of insurance for the vehicle used to transport
the individual, as well as any other license or certificate that may be required
under state and local law depending on the nature and scope of the transportation.
(a) Community transportation
services exclude medical transportation. Medical transportation is provided through
Medical Assistance Programs (MAP).
(b) The Department is not
responsible for vehicle damage or personal injury sustained while using a personal
motor vehicle for ISP-related transportation except as may be covered by workers'
compensation.
(c) Reimbursement for transporting
an individual to accomplish ADL, IADL, or a health-related task within the community
in which the individual lives or an employment goal identified on an ISP is on a
per-mile basis as outlined in the Collective Bargaining Agreement.
(4) GLOVES AND MASKS. Once
all public and private resources have been exhausted, an emergency supply of protective
gloves and masks must be made available to a personal support worker for the safety
of the personal support worker in response to documented changing or newly identified
individual need as outlined in the Collective Bargaining Agreement.
Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 410.600,
410.606-619, 427.007
Hist.: APD 30-2014(Temp),
f. & cert. ef. 7-1-14 thru 12-28-14; APD 48-2014, f. 12-26-14, cert. ef. 12-28-14
411-375-0060
Overpayments
An overpayment is any payment made by
the Department, CDDP, CIIS, or Support Services Brokerage to a personal support
worker that is more than the personal support worker is authorized to receive. A
personal support worker is authorized to receive payment for a number of hours that
does not exceed the amount stated in a service agreement and are actually provided.
(1) Overpayments are categorized
as follows:
(a) ADMINISTRATIVE ERROR.
The Department, CDDP, CIIS, or Support Services Brokerage failed to authorize, compute,
or process the correct amount of home care service hours or wage rate.
(b) PERSONAL SUPPORT WORKER
ERROR. The Department overpays the personal support worker due to a misunderstanding
or unintentional error.
(c) FRAUD. "Fraud" means
taking actions that may result in the personal support worker receiving a benefit
in excess of the correct amount whether by intentional deception, misrepresentation,
or failure to account for payments or money received. "Fraud" also means spending
payments or money the personal support worker was not entitled to and any act that
constitutes fraud under applicable federal or state law (including 42 CFR 455.2).
The Department of Justice, Medicaid Fraud Unit determines when a Medicaid fraud
allegation is pursued for prosecution.
(2) Overpayments for employed
personal support workers are recovered as follows:
(a) Overpayments are collected
prior to garnishments, such as child support, Internal Revenue Service back taxes,
or educational loans.
(b) Administrative error
or personal support worker error overpayments are recouped at no more than five
percent of the total for the hours paid until repaid in full.
(c) When a fraud overpayment
has occurred, the Department shall determine the manner and the amount to be recovered.
(d) When a provider is no
longer employed as a personal support worker, any remaining overpayment is deducted
from the final check to the provider. The provider is responsible for repaying the
amount in full when the final check is insufficient to cover the remaining overpayment.
(3) Overpayments for a PSW-IC
are recovered as follows:
(a) For overpayments discovered
within 10 days after the overpayment, the full amount is deducted from the next
payment to the PSW-IC.
(b) For overpayments discovered
more than 10 days after the overpayment, the overpayment must be repaid within 30
days of the discovery of the overpayment on a schedule to be negotiated between
the PSW-IC, services coordinator or personal agent, and the individual or the representative
of the individual. The repayment period may not exceed two pay cycles. If possible,
the overpayment must be repaid within the current ISP year for the individual.
(c) If a PSW-IC terminates
his or her employment contract as a personal support worker before the overpayment
has been fully recovered, any remaining amount is deducted from the final payment
to the PSW-IC. The PSW-IC is responsible for repaying the amount in full when the
final payment is insufficient to cover the remaining overpayment.
Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 410.600,
410.606-619, 427.007
Hist.: APD 30-2014(Temp),
f. & cert. ef. 7-1-14 thru 12-28-14; APD 48-2014, f. 12-26-14, cert. ef. 12-28-14
411-375-0070
Provider Enrollment Inactivation and Termination
(1) The provider enrollment for a personal
support worker may be inactivated in the following circumstances:
(a) The personal support
worker has not provided any paid home care services to an individual within the
previous 12 months;
(b) The personal support
worker informs the Department, CDDP, CIIS, or Support Services Brokerage that the
personal support worker is no longer providing home care services in Oregon;
(c) The personal support
worker fails to participate in a New Member Orientation for personal support workers
as described in OAR 411-375-0020;
(d) The background check
for a personal support worker results in a closed case pursuant to OAR 407-007-0325;
(e) The personal support
worker, even if not providing any paid home care services to an individual, is being
investigated by adult or child protective services for suspected abuse that poses
imminent danger to current or future individuals; or
(f) The personal support
worker has a credible allegation of fraud or has a conviction for fraud pursuant
to federal law under 42 CFR 455.23.
(2) The Department may terminate
the provider enrollment for a personal support worker in the following circumstances:
(a) The personal support
worker violates the requirement to maintain a drug-free work place by:
(A) Being intoxicated by
alcohol, inhalants, prescription drugs, or other drugs, including over-the-counter
medications, while responsible for the care of an individual, while in the home
of the individual, or while transporting the individual; or
(B) Manufacturing, possessing,
selling, offering to sell, trading, or using illegal drugs while providing authorized
services to an individual or while in the home of the individual.
(b) The personal support
worker has an unacceptable background check and the background check results in
a closed case pursuant to OAR 407-007-0325;
(c) The personal support
worker demonstrates a lack of skills, knowledge, or ability to adequately or safely
provide home care services;
(d) The personal support
worker violates the protective service and abuse rules;
(e) Notwithstanding abuse
as defined in OAR 407-045-0260, the personal support worker fails to safely and
adequately provide authorized home care services;
(f) The personal support
worker commits fiscal improprieties including, but not limited to, billing excessive
or fraudulent charges or has a conviction for fraud pursuant to federal law under
42 CFR 455.23;
(g) The personal support
worker fails to provide home care services as described in the ISP and service agreement;
(h) The personal support
worker lacks the ability or willingness to maintain individual confidentiality;
(i) The personal support
worker engages in repeated unacceptable conduct at work, such as:
(A) Delay in arriving to
work or absences from work not scheduled in advance with the individual or the representative
of the individual that are either unsatisfactory to the individual or the representative
of the individual or that neglect the service needs of the individual; or
(B) Inviting unwelcome guests
or pets into the home or community with the individual resulting in the dissatisfaction
of the individual or the representative of the individual or inattention to the
required service needs of the individual.
(j) The personal support
worker has been excluded or debarred by the Office of the Inspector General.
(3) NOTICE OF TERMINATION.
When the Department terminates the provider enrollment of a personal support worker,
the Department must issue a written notice to the personal support worker.
(a) The written notice must
include:
(A) An explanation of the
reason for terminating the provider enrollment;
(B) The alleged violation
as listed in section (2) of this rule;
(C) The appeal rights of
the personal support worker as described in OAR 411-375-0080 including the right
to Union representation and where to file an appeal; and
(D) The effective date of
the termination.
(b) For terminations based
on substantiated abuse allegations, the written notice of termination may only contain
the information allowed by law. In accordance with ORS 430.753, 430.763, and OAR
411-020-0030, the name of a complainant, witness, or alleged victim, and protected
health information may not be disclosed.
(4) IMMEDIATE INACTIVATION.
The Department, on the recommendation of the CDDP, CIIS, or Support Services Brokerage,
may immediately inactivate the provider enrollment for a personal support worker
on the date an alleged violation listed in section (2) of this rule is discovered
when the alleged violation presents imminent danger to current or future individuals.
The Department must make a determination to terminate or reactivate the provider
number within 3 business days from the date of the notice of inactivation as described
in OAR 411-375-0080. The personal support worker must file an appeal within 10 business
days from the date of the notice of inactivation as described in 411-375-0080.
(5) TERMINATION PENDING APPEAL.
When a violation does not present imminent danger to current or future individuals,
the provider enrollment of a personal support worker may not be terminated during
the first 10 business days to provide the opportunity for the personal support worker
to file an appeal. The personal support worker must file an appeal within 10 business
days from the date of the notice of termination if they wish to continue to work
during the hearing process as described in OAR 411-375-0080. If the personal support
worker files an appeal in writing prior to the deadline, the provider enrollment
of the personal support worker may not be terminated until the appeal is resolved
unless subsequent conduct of the personal support worker presents an imminent danger
to a current individual recipient of home care services provided by the personal
support worker.
(6) TERMINATION IF NO APPEAL
FILED. The decision of the Department becomes final if a personal support worker
does not request a hearing within 10 business days from the date of the notice of
termination. The provider enrollment for a personal support worker is terminated
once the time period for the personal support worker to request a hearing has expired.
Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 410.600,
410.606-619, 427.007
Hist.: APD 30-2014(Temp),
f. & cert. ef. 7-1-14 thru 12-28-14; APD 48-2014, f. 12-26-14, cert. ef. 12-28-14
411-375-0080
Administrator Review and Hearing Rights
(1) EXCLUSIONS. The following are excluded
from the appeal process described in this rule:
(a) Terminations based on
a background check. The personal support worker has the right to a hearing in accordance
with OAR 407-007-0200 to 407-007-0370.
(b) Personal support workers
that have not worked within the previous 12 months. The provider enrollment may
become inactivated but may not be terminated. To activate the provider enrollment
number, the personal support worker must complete an application and background
check.
(c) Personal support workers
that fail to complete a background recheck.
(d) Personal support workers
that are denied a provider enrollment number at the time of initial application.
(e) Personal support workers
not currently providing services to any individuals whose provider enrollment is
inactivated while an Adult or Child Protective Services investigation is being completed.
(f) Personal support workers
who have been excluded or debarred by the Office of the Inspector General.
(2) FILING AN APPEAL. If
a personal support worker decides to file an appeal, the personal support worker
must specify in the appeal, the issues or decisions being appealed and the reason
for the appeal. The appropriate party, as stated in the notice of termination, must
receive the appeal within 10 business days of the notice of termination.
(3) INFORMAL CONFERENCE.
The Department must conduct an informal conference, as described in OAR 461-025-0325,
if requested by a personal support worker within 5 business days from the receipt
of an appeal. The informal conference must be scheduled with the personal support
worker and, if requested, a representative of the Union. The informal conference
must involve the personal support worker and the Department to review the facts,
and explain the decision to terminate the provider enrollment. The informal conference
may be held by telephone.
(4) OFFICE OF ADMINISTRATIVE
HEARINGS.
(a) A personal support worker
may file a request for a hearing with the Department if the personal support worker
continues to dispute the decision to terminate the provider enrollment of the personal
support worker.
(b) The request for a hearing
must be filed with the Department within;
(A) 10 days of the effective
date of the termination notice issued by the Department if the personal support
worker wishes to continue to work during the hearing process; or
(B) 90 days from the effective
date on the termination notice.
(c) The Department shall
refer a request for a hearing to the Office of Administrative Hearings for scheduling
a contested case hearing in accordance with OAR chapter 137, division 3.
(d) An Administrative Law
Judge (ALJ) with the Office of Administrative Hearings shall determine whether the
decision from the Department to terminate the provider enrollment is affirmed or
reversed. A Final Order will be issued according to ORS 183 and OAR 461-025-0371
with the decision to all appropriate parties.
(e) No additional hearing
rights have been granted to personal support workers by this rule.
(5) BURDEN OF PROOF. The
Department has the burden of proving the decision to terminate the provider enrollment
of a personal support worker by a preponderance of the evidence. Evidence submitted
for a hearing is governed by OAR 137-003-0050.
Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 410.600,
410.606-619, 427.007
Hist.: APD 30-2014(Temp),
f. & cert. ef. 7-1-14 thru 12-28-14; APD 48-2014, f. 12-26-14, cert. ef. 12-28-14



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
Read Entire Law on arcweb.sos.state.or.us