Division 89

Link to law: http://arcweb.sos.state.or.us/pages/rules/oars_400/oar_411/411_089.html
Published: 2015

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

 

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DEPARTMENT OF HUMAN SERVICES,

AGING AND PEOPLE WITH DISABILITIES AND DEVELOPMENTAL DISABILITIES




 

DIVISION 89

NURSING FACILITIES/LICENSING
— COMPLAINTS, INSPECTIONS, AND SANCTIONS
411-089-0010
Inspections and Surveys
(1) Frequency. The Department shall,
in addition to any investigations conducted pursuant to complaints, conduct a general
inspection of each facility to determine compliance with nursing facility laws on
a schedule consistent with the survey schedule defined by the Centers for Medicare
and Medicaid Services (CMS), and at such other times as the Department deems necessary.
(2) Content. The general
inspection includes a review of resident care practices. Results of the review shall
be summarized on the survey form.
(3) Documentation: A nursing
facility shall maintain all written documentation required by Oregon law. Such written
documentation shall be kept on the facility premises. When documents and records
are requested by the Department, the facility shall make the requested materials
available to the investigator or inspector for review and copying.
Stat. Auth.: ORS 410.070, 441.055 &
441.615
Stats. Implemented: ORS 441.087,
441.050, 441.615, 441.630, 441.690, 441.695 & 441.710
Hist.: SSD 19-1990, f. 8-29-90,
cert. ef. 10-1-90; SSD 1-1995, f. 1-30-95, cert. ef. 2-1-95; APD 51-2014(Temp),
f. 12-31-14, cert. ef. 1-1-15 thru 6-29-15; APD 13-2015, f. 6-24-15, cert. ef. 6-28-15
411-089-0020
Sanctions, Generally
(1) Information collected during a visit
by any Department, local APD, or Area Agency on Aging representative, regardless
of the reason for the visit, may be used as a basis for any sanction imposed by
the Department.
(2) The use of any one sanction
by the Department does not preclude the implementation of any other sanctions for
the same deficiencies.
(3) The Department may seek
appropriate administrative or injunctive relief before the completion of an investigation
or inspection if it appears a resident might otherwise be deprived of rights secured
by federal or state law.
(4) If after an investigation
or inspection the Department believes there is substantial evidence a violation
has occurred or is occurring, the Department may seek, by administrative or judicial
means, to obtain such remedial relief as may be appropriate, including voluntary
compliance, contested case, and injunction proceedings.
Stat. Auth.: ORS 441.055, 441.615 &
441.070
Stats. Implemented: ORS 411.050,
441.615 & 441.710
Hist.: SSD 19-1990, f. 8-29-90,
cert. ef. 10-1-90; APD 51-2014(Temp), f. 12-31-14, cert. ef. 1-1-15 thru 6-29-15;
APD 13-2015, f. 6-24-15, cert. ef. 6-28-15
411-089-0030
Civil Penalties
(1) CONSIDERATIONS. In determining the
amount of a civil penalty the Department shall consider:
(a) Any prior violations
of statute or rule by the facility or licensee that relates to operation of a nursing
facility;
(b) The financial benefits,
if any, realized by the facility as a result of the violation, such as costs avoided
as a result of not having obtained sufficient staffing, equipment, or supplies;
(c) The gravity of the violation,
including the actual and potential threat to health, safety, and well-being of residents,
the duration of the threat or number or times the threat occurred, and the number
of residents threatened;
(d) The severity of the actual
or potential harm caused by the violation, including whether the actual or potential
harm included loss of life or serious physical or emotional injury;
(e) The facility's history
of correcting violations and preventing recurrence of violations; and
(f) Exhibit 89-1, Civil Penalty
Chart, which is incorporated by reference and is a part of this rule.
(2) SINGLE VIOLATION CIVIL
PENALTIES. Violations of any requirement within any part of the following statutes,
rules, or sections of the following rules are a violation that may result in a civil
penalty after a single occurrence.
(a) Violations involving
direct resident care, feeding, or sanitation involving direct resident care, including
any violation of:
(A) OAR 411-085-0060 (Specialty
Nursing Facilities);
(B) OAR 411-085-0200(2) (Facility
Employees);
(C) OAR 411-085-0210 to 411-085-0220
(Facility Policies, Quality Assurance);
(D) OAR 411-085-0360 (Abuse);
(E) OAR 411-086-0010 to 411-086-0020
(Administrator, Director of Nursing Services);
(F) OAR 411-086-0040 (except
section (3)) (Admission of Residents);
(G) OAR 411-086-0050 to 411-086-0060
(Day Care, Assessment, and Care Plan);
(H) OAR 411-086-0110 to 411-086-0150
(Nursing Services);
(I) OAR 411-086-0200 to 411-086-0260
(Physician, Dental, Rehabilitative, Activity, Social, Dietary, and Pharmaceutical
Services);
(J) OAR 411-086-0300 (except
section (6)) (Clinical Records);
(K) OAR 411-086-0310 to 411-086-0360
(Employee Orientation and Training, Disaster Preparation, Infection Control, Smoking,
Furnishings, and Equipment);
(L) OAR 411-087-0100(1)(a)
and (c) (Repair and Cleanliness); or
(M) OAR 411-087-0440 (Alarm
and Nurse Call Systems).
(b) Violation involving failure
to provide staff-to-resident ratio, including any violation of:
(A) OAR 411-086-0030 (except
section (1)) (RN Care Manager); or
(B) OAR 411-086-0100 (Nursing
Staffing).
(c) Violation of any rule
adopted pursuant to ORS 441.610, including:
(A) OAR 411-085-0300 to 411-085-0350
(Resident Rights);
(B) OAR 411-086-0040(3) (Advance
Directives);
(C) OAR 411-086-0300(6) (Record
Retention); or
(D) OAR chapter 411, division
088 (Rights Regarding Transfers).
(d) Violation of ORS 441.605
(Resident Rights) or any general or final order of the Department.
(3) CIVIL PENALTIES REQUIRING
REPEAT VIOLATIONS. Violation of any Department rule not listed in section (2) of
this rule is subject to a civil penalty under the following circumstances:
(a) Such violation is determined
to exist on two consecutive surveys, inspections, or visits; and
(b) The Department prescribed
a reasonable time for elimination of the violation at the time of, or subsequent
to, the first citation.
(4) AMOUNT OF CIVIL PENALTY.
(a) Violation of any requirement
or order listed in section (2) of this rule is subject to a civil penalty of not
more than $500 for each day the violation occurs, unless otherwise provided by this
section.
(b) Violation of any requirement
listed in section (3) of this rule is subject to a civil penalty of not more than
$500 per violation, unless otherwise provided by this section.
(c) Violation involving resident
abuse that resulted in serious injury or death is subject to a civil penalty of
not less than $500 nor more than $1,000, or as otherwise required by federal law
(ORS 441.995(3) and ORS 441.715(1)(c)).
(d) The Department shall
impose a civil penalty of not less than $2,500 for each occurrence of substantiated
abuse that resulted in the death, serious injury, rape, or sexual abuse of a resident.
The civil penalty may not exceed $15,000 in any 90-day period.
(A) To impose this civil
penalty, the Department shall establish:
(i) The abuse arose from
deliberate or other than accidental action or inaction;
(ii) The conduct resulting
in the abuse was likely to cause death, serious injury, rape, or sexual abuse of
a resident; and
(iii) The person substantiated
for the abuse had a duty of care toward the resident.
(B) For the purposes of this
civil penalty, the following definitions apply:
(i) "Serious injury" means
a physical injury that creates a substantial risk of death or that causes serious
disfigurement, prolonged impairment of health, or prolonged loss or impairment of
the function of any bodily organ.
(ii) "Rape" means rape in
the first, second, or third degree as described in ORS 163.355, 163.365, and 163.375.
(iii) "Sexual abuse" means
any form of sexual contact between an employee of a nursing facility or a person
providing services in the nursing facility and a resident of that facility, including,
but not limited to, sodomy, sexual coercion, sexually explicit photographing, or
sexual harassment. The sexual contact must be in the form of any touching of the
sexual or other intimate parts of a person or causing such person to touch the sexual
or other intimate parts of the actor for the purpose of arousing or gratifying the
sexual desire of either party.
(iv) "Other than accidental"
means failure on the part of the licensee, or licensee's employees, agents, or volunteers
for whose conduct the licensee is responsible, to comply with applicable Oregon
Administrative Rules.
(5) ADMINISTRATOR SANCTIONS
- NURSING FACILITY CLOSURES. Any individual who is or was the administrator of a
facility and fails or failed to comply with the requirements at OAR 411-085-0025(2)(d)(e)(f)(h),
OAR 411-085-0025(3)(a), or OAR 411-088-0070(1)(g), (3)(d), or (4):
(a) Are subject to a civil
monetary penalty as follows:
(A) A minimum of $500 for
the first offense;
(B) A minimum of $1,500 for
the second offense; and
(C) A minimum of $3,000 for
the third and subsequent offenses.
(b) May be subject to exclusion
from participation in any Federal health care program as defined in section 1128B(f)
of the Patient Protection and Affordable Care Act; and
(c) Are subject to any other
penalties that may be prescribed by law.
(6) PAYMENT TO BE CONSIDERED
ADMISSION OF VIOLATION. Unless the Department agrees otherwise, for purposes of
history of the facility, any payment of a civil penalty is treated by the Department
as a violation of the statutes or rules alleged in the civil penalty notice for
which the civil penalty was paid.
(7) All penalties recovered
are deposited in the Quality Care Fund.
(8) NOTICE. The Department's
notice of its intent to impose a civil penalty shall include the statements set
out in OAR 411-089-0040(3)(a)-(f) and shall also include a statement that if the
licensee fails to request a hearing within 10 days of the date the notice was mailed,
the licensee shall have waived the right to a hearing.
(9) HEARING REQUEST.
(a) If the Department issues
a notice of intent to impose a civil penalty, the licensee is entitled to a hearing
in accordance with ORS chapter 183.
(b) A request for a hearing
must be in writing and must be received by the Department within 10 days of the
date the notice of intent to impose a civil penalty was mailed to the licensee.
The hearing request must include an admission or denial of each factual matter alleged
in the notice and must affirmatively allege a short plain statement of each relevant
affirmative defense the licensee may have. The Department may extend the time allowed
for submission of the admission or denial and affirmative defenses for up to 30
calendar days.
(10) DEFAULT ORDER. If a
hearing is not timely requested, if the licensee withdraws a hearing request, or
fails to appear at a scheduled hearing, the Department may enter a final order by
default imposing the civil penalty. In the event of a default, the Department's
file on the subject of the civil penalty automatically becomes a part of the record
for purposes of proving the Department's prima facie case.
[ED. NOTE: Tables referenced are not included in rule text. Click here for PDF copy of table(s).]
Stat. Auth.: ORS 441.615, 441.637, 441.710,
441.715 & 441.990
Stats. Implemented: ORS 410.070,
441.055, 441.615, 441.637, 441.715 & 441.990
Hist.: SSD 19-1990, f. 8-29-90,
cert. ef. 10-1-90; SSD 8-1993, f. & cert. ef. 10-1-93; SSD 1-1995, f. 1-30-95,
cert. ef. 2-1-95; SPD 24-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10;
SPD 11-2010, f. 6-30-10, cert. ef. 7-1-10; APD 5-2014, f. 3-31-14, cert. ef. 4-1-14;
APD 51-2014(Temp), f. 12-31-14, cert. ef. 1-1-15 thru 6-29-15; APD 13-2015, f. 6-24-15, cert. ef. 6-28-15
411-089-0040
Nursing Facility License Denial, Suspension, Revocation
(1) Basis for Denial, Revocation --
Mandatory. A license shall be suspended or revoked, or both, or denied if a certificate
of noncompliance is issued by the State Fire Marshal, Deputy, or other approved
representative pursuant to ORS Chapter 479.
(2) Basis for Denial or Revocation
-- Discretionary. A license may be denied or revoked by the Department when it finds
the licensee or applicant:
(a) Failed to comply with
nursing facility law such that the health, safety, or welfare of residents is or
was jeopardized;
(b) Failed to substantially
comply with nursing facility law during any three inspections within a five year
period. For the purpose of this rule, "inspection" means an on-site visit to the
facility by the Department for licensing or certification;
(c) Has been convicted, under
any state or federal law, of a felony or of a misdemeanor associated with the operation
of a health care facility or agency within the preceding ten years;
(d) Had an incident of ownership
of ten percent or greater in or had a management or control interest in any facility
in any state when the facility was terminated from participation in the Medicaid
or Medicare program, or at a time when the facility voluntarily terminated participation
in the Medicaid or Medicare program during any state or federal termination process;
(e) Had an incident of ownership
of ten percent or greater in any facility in any state that failed to reimburse
any state or the federal government for Medicaid or Medicare overpayments on a timely
basis within the preceding five year period;
(f) Had an incident of ownership
of ten percent or greater or a management or control interest in a health care facility
or agency whose license was involuntarily suspended, revoked, or not renewed within
the preceding five years;
(g) Had a nursing home administrator's
license revoked, suspended, or not renewed in any state, excluding revocation based
on failure to pay license fee or failure to maintain required continuing education
requirements when not serving as an administrator, within the preceding five year
period;
(h) Provided false, incorrect,
or misleading information to the Department on the license application form;
(i) Provided false, incorrect,
or misleading information to the Department regarding care of residents, facility
finances, or resident funds;
(j) Failed to provide workers'
compensation coverage for health care facility employees when required by state
law in any state;
(k) Permitted, aided, or
abetted any illegal act that had a significant adverse impact on resident health,
safety, or welfare within the preceding five year period;
(l) Had an incident of ownership
of ten percent or greater in any health care facility in any state at a time when
the facility was denied an operating license, excluding denial based upon absence
of bed need;
(m) Demonstrated fiscal instability
within the preceding five years and such instability relates to the licensee or
applicant's ability to provide care or operate a facility, or both provide care
and operate a facility. Examples of fiscal instability include, but are not limited
to, experiencing more than one instance of any of the following events or experiencing
more than one of the following events:
(A) Failure to compensate
employees in a timely manner;
(B) Failure to maintain,
in any facility, an adequate inventory of medical supplies, personal supplies, or
food;
(C) Failure to promptly pay
any judgments, taxes, warrants, or other liens;
(D) Failure to pay utility
bills or other bills related to the operation or maintenance of any facility, excluding
failure to pay when the facility has a clear basis to dispute the billing; or
(E) A poor credit rating.
(n) Has demonstrated fiscal
instability within the past five years by having experienced a history of poor credit
or poor financial management; or
(o) Has failed to pay a civil
penalty imposed by the Department.
(3) Notice of Intent to Revoke
or Deny. The Department's notice of its intent to deny or revoke a nursing facility
license shall include:
(a) A statement that the
licensee or applicant has a right to a contested case hearing or a statement of
the time and place of the hearing;
(b) A statement of the authority
and jurisdiction under which the hearing is to be held;
(c) A reference to the particular
sections of the statute and rules involved;
(d) A short and plain statement
of the matters asserted or charged;
(e) A statement that the
licensee or applicant is entitled to be represented by counsel and to respond and
present evidence and argument on all issues involved;
(f) A statement that the
record of the proceeding to date, including information in the Department's file
or files on the subject of the revocation or denial of the license, automatically
becomes part of the contested case record upon default for purposes of proving the
Department's prima facie case; and
(g) A statement that if the
licensee or applicant fails to request a hearing within 21 days of the date the
notice of revocation was received, or within 60 days of the date the notice of denial
was received, whichever is applicable, the licensee or applicant shall have waived
the right to a hearing.
(4) Informal Conference.
When the Department issues a notice of intent to revoke or deny a license, the licensee
or applicant shall be entitled to an informal conference to respond to the notice.
The conference shall be held before a person authorized to issue the order or to
make recommendations regarding issuance of the order. A request for an informal
conference must be received in writing by the Department within 10 days of the date
the notice of the intent to revoke or deny the license was received by the licensee
or applicant. If the licensee or applicant fails to submit a timely request for
a conference, the licensee or applicant shall have waived the right to the conference.
(5) Hearing:
(a) Right to Hearing. When
the Department issues a notice of intent to revoke or deny a license, the licensee
or applicant shall be entitled to a contested case hearing in accordance with the
provisions of ORS Chapter 183.
(b) Request for Hearing.
A request for hearing must be in writing and must be received by the Department
within:
(A) 21 days of the date the
licensee received the notice of revocation; or
(B) 60 of the date the applicant
received the notice of denial of licensure.
(c) Date of Hearing. The
hearing shall be held within 60 days of the request for hearing unless the Department
and the licensee or applicant agree to a later date.
(d) Continued Operation Prohibited.
A facility may not continue operation if the facility license is immediately suspended
because of serious and immediate danger to resident health or safety pursuant to
OAR 411-089-0040(2).
(6) Default Order. If the
licensee or applicant fails to request a contested case hearing within the prescribed
time period, withdraws a previous hearing request, or fails to appear at a scheduled
hearing, the Department may enter an order denying or revoking the license by default.
In the event of a default, the Department's files on the subject of revocation or
denial automatically become part of a contested case record for the purposes of
proving the Department's prima facie case.
(7) Emergency Suspension
Order.
(a) When the Department finds
a serious and immediate threat to resident health and safety exists, the Department
may immediately suspend a nursing facility license. An emergency suspension order
must be in writing. The order may be issued without prior notice to the licensee
and without prior opportunity for a contested case hearing.
(b) Except where the threat
to residents is so imminent that the Department determines that pre-suspension notice
is not practical, the Department must provide the licensee with a pre-suspension
notice and an opportunity to object before issuing an emergency suspension order.
The pre-suspension order shall:
(A) Describe generally the
acts of the licensee or circumstances that are grounds for an emergency suspension
order under this rule, or both;
(B) Describe generally the
reasons why the acts of the licensee or the circumstances seriously and immediately
endanger resident health and safety, or both; and
(C) Identify a person whom
the licensee may contact at the Department who is authorized to make recommendations
regarding issuance of the order.
(c) If a pre-suspension notice
is issued, the licensee shall be entitled to an immediate opportunity to respond
to the notice before an authorized person issues the order or makes recommendations
regarding issuance of the order. The emergency suspension order may be issued at
any time thereafter.
(d) When an emergency suspension
order is issued, the Department must serve the order on the licensee either personally
or by registered or certified mail. The order shall include the following statements:
(A) The licensee's right
to a hearing, or a statement of the time and place of the hearing;
(B) The authority and jurisdiction
under which the hearing is to be held;
(C) A short plain statement
of the matters asserted or charged;
(D) A reference to the particular
sections of the statutes and rules involved;
(E) That the licensee may
elect to be represented by counsel and may respond and present evidence and argument
on all issues involved;
(F) That the licensee has
a right to demand a hearing, if requested, be held as soon as practical;
(G) That if the demand for
a hearing is not received by the Department within 90 days of the date of the emergency
suspension order, the licensee shall have waived its right to a hearing under ORS
Chapter 183;
(H) The effective date of
the emergency suspension order;
(I) Findings of the specific
acts or omissions of the licensee that are the grounds for the suspension, and the
reasons the acts or omissions seriously and immediately threaten the health and
safety of the residents; and
(J) That the Department may
combine the hearing on the emergency suspension order with any other Department
proceeding affecting the license. The procedures for the combined proceeding shall
be those applicable to the other proceeding affecting the license.
(e) If a timely request for
a hearing is received, the Department must hold the hearing as soon as practical.
At the hearing the Department shall consider the facts and circumstances, including,
but not limited to:
(A) Whether the acts or omissions
of the licensee pose a serious danger to resident health and safety; and
(B) Whether the circumstances
at the time of the hearing justify confirmation, alteration, or revocation of the
order.
(8) License Expiration. If
the Department determines a license has expired due to the facility's discontinued
operation, the licensee has a right to an informal conference under section (4)
of this rule and a hearing under section (5) of this rule. The Department may issue
a default order pursuant to section (6) of this rule.
Stat. Auth.: ORS 410.070, 441.030, 441.055
& 441.615
Stats. Implemented: ORS 441.030
& 441.615
Hist.: SSD 19-1990, f. 8-29-90,
cert. ef. 10-1-90; SSD 8-1993, f. & cert. ef. 10-1-93; APD 51-2014(Temp), f.
12-31-14, cert. ef. 1-1-15 thru 6-29-15; APD 13-2015, f. 6-24-15, cert. ef. 6-28-15
411-089-0050
Restriction of Admissions
(1) Purpose. The purpose of this rule
is to protect nursing facility residents and prospective residents from threats
to their health, safety, and welfare, and to help ensure the attention of facilities
with serious deficiencies is directed toward correcting those deficiencies.
(2) Basis for Admission Restriction.
When the Department finds an immediate threat to resident health and safety, the
Department may order an immediate restriction of admissions, or may immediately
restrict the number or type of admissions at the facility. An Admission Restriction
Order shall be in writing and may be issued without prior notice to the licensee
and without an opportunity for a contested case hearing.
(a) In determining whether
to order a restriction of admission under this rule, the Department shall consider:
(A) The needs of the residents
and prospective residents;
(B) The severity of the threat
to current and prospective residents; and
(C) The history of the care
provided by the licensee.
(b) For the purposes of this
rule, an immediate threat to resident health and safety may exist when a facility
lacks adequate alarm systems including, but not limited to, call bells, fire or
door alarms, or any other means to protect against a threat to resident health and
safety.
(c) For the purposes of this
rule, an immediate threat to resident health and safety exists when:
(A) The Department finds
a pattern of:
(i) Failure to assess or
take action to prevent or treat decubitus ulcers, weight loss, infection, dehydration
or other changes in the physical condition of residents;
(ii) Failure to follow physician's
orders, including failure to correctly administer medications; or
(iii) Abuse as defined by
ORS 441.630, or preventable injuries.
(B) The Department finds
any other condition or combination of conditions exist that in the opinion of the
Department, constitute an immediate threat to resident health and safety, or a potential
threat to new residents.
(3) Impending Admission Restriction
Notice. Except where the threat to residents is so imminent that the Department
determines pre-restriction notice is not practical, the Department must provide
the licensee with a pre-restriction notice and an opportunity for an informal conference
at least 48 hours before issuing an Admission Restriction Order. The Notice of Impending
Restriction of Admission may be provided in writing, sent by certified or registered
mail to the licensee, or provided orally in person or by telephone to the licensee
or to the person in charge at the facility. When the notice is delivered orally,
the Department shall subsequently provide written notice to the licensee by registered
or certified mail. The pre-restriction notice shall:
(a) Describe generally, the
acts or omissions of the licensee and the circumstances which led to the finding
that an immediate threat to resident health and safety exists at the facility;
(b) Describe generally, why
the acts or omissions and the circumstances create an immediate threat to resident
or prospective resident health and safety;
(c) Identify a person at
the Department whom the licensee may contact who is authorized to enter the Admission
Restriction Order or to make recommendations regarding issuance of an order; and
(d) Specify the date and
time the Admission Restriction Order takes effect.
(4) Informal Conference.
If an informal conference is requested, the conference shall be held at a location
designated by the Department. If determined to be appropriate by the Department,
the conference may be held by telephone.
(a) With Pre-Admission Restriction
Notice. If a pre-admission restriction notice is issued, the licensee shall be provided
with an opportunity for an informal conference to object to the Department's proposed
action. The Admission Restriction Order may be issued at any time after the informal
conference.
(b) Without Pre-Admission
Restriction Notice. If an Admission Restriction Order is issued without prior notice,
the licensee may request an immediate informal conference to object to the Department's
action.
(5) Admission Restriction
Order. When an Admission Restriction Order is issued, the Department shall serve
the order on the licensee either personally or by registered or certified mail.
The order shall include the following statements:
(a) The licensee's right
to a hearing or a statement of the time and place of the hearing;
(b) The authority and jurisdiction
under which the hearing is being held;
(c) A reference to the particular
sections of the statute and rules involved;
(d) The effective date of
the restriction;
(e) A short and plain statement
of the nature of the matter asserted or charged;
(f) That the licensee may
elect to be represented by counsel and to respond and present evidence and argument
on all issues involved. If the licensee is to be represented by counsel, the licensee
shall notify the Department;
(g) That the licensee has
the right to demand a hearing, if requested, be held as soon as practical;
(h) That if a demand for
hearing is not received by the Department within 90 days of the date of the notice
of the Admission Restriction Order, the licensee shall have waived the right to
a hearing under ORS Chapter 183;
(i) Findings of specific
acts or omissions of the licensee are grounds for the admission restriction, and
the reasons these acts or omissions constitute an immediate and serious threat to
the health and safety of the residents; and
(j) That the Department may
combine the hearing on the Admission Restriction Order with any other Department
proceeding affecting the licensee. The procedures for the combined proceeding shall
be those applicable to the other proceedings affecting the license.
(6) Posting of Admission
Restriction Order. A licensee who has been ordered to restrict admissions to a facility
shall immediately post a "Restriction of Admissions Notice" on both the inside and
outside faces of each door of the facility through which any person may enter or
exit the facility. Such public notices shall be provided by the Department. The
notices shall not be removed, altered, or obscured until the restriction has been
lifted by the Department. Removal of the notice without the Department's authorization
is a Class C misdemeanor.
(7) Hearing:
(a) Right to Hearing. If
the Department issues an Admission Restriction Order, the licensee is entitled to
a contested case hearing pursuant to ORS Chapter 183.
(b) Hearing Request. The
request for a hearing must be received within 90 days of the Admission Restriction
Order.
(c) Date of Hearing. When
a timely request for hearing is received, the hearing must be held as soon as practical,
but not later than 30 days after the request for hearing, unless the Department
and the licensee agree to a later date.
(d) At the hearing, the Department
shall consider the facts and the circumstances including, but not limited to:
(A) Whether at the time of
the issuance of the restriction there was probable cause from evidence available
to the Department to believe there were grounds for the Admission Restriction Order;
(B) Whether the acts or omissions
of the licensee posed an immediate threat to resident health and safety;
(C) Whether changed circumstances,
including implementation of effective systems to help ensure deficiencies causing
the restriction do not recur, eliminate the need for continuing the restriction;
and
(D) Whether the agency followed
the appropriate procedures in issuing the restriction.
(8) Re-inspection.
(a) Request for Re-inspection.
When the licensee determines the circumstances causing the restriction no longer
exist, and that effective systems are in place to help ensure similar deficiencies
do not recur, the licensee may make written request to the Department for a re-inspection.
The Department must conduct the re-inspection within 15 working days following receipt
of the written request.
(b) If the Department finds
there is no longer an immediate threat to resident health and safety, and finds
effective systems are in place to ensure similar deficiencies do not recur, the
restriction must be lifted. The Department must notify the facility by telephone
of the decision to lift or not lift the restriction within five working days from
the completion of the re-inspection. Telephone notification must be followed by
written notification.
(c) If the Department determines
an immediate threat to resident health and safety continues to exist after a re-inspection,
the admission restriction is not lifted and the Department is not obligated to re-inspect
again for at least 45 days. A decision not to rescind the Admission Restriction
Order shall be given to the licensee in writing and the licensee shall be informed
of the right to a contested case hearing pursuant to ORS Chapter 183. Nothing in
this rule is intended to limit the Department’s authority to visit or inspect
the facility at any time.
(9) Exceptions to Admission
Restriction Order. While an Admission Restriction Order is in place, the Department,
in its sole discretion, may authorize the facility to admit former residents with
a right of return or right of readmission. The Department, in its sole discretion,
may also authorize the facility to admit new residents for whom the Department determines
that alternate placement is not feasible.
Stat. Auth.: ORS 410.070, 441.030, 441.055
& 441.615
Stats. Implemented: ORS 441.030
& 441.615
Hist.: SSD 19-1990, f. 8-29-90,
cert. ef. 10-1-90; SSD 8-1993, f. & cert. ef. 10-1-93; APD 51-2014(Temp), f.
12-31-14, cert. ef. 1-1-15 thru 6-29-15; APD 13-2015, f. 6-24-15, cert. ef. 6-28-15
411-089-0070
Facility Fund
(1) Moneys in the Facility Fund are
appropriated to the Department to pay for the reasonable expenses of a trustee or
temporary manager.
(2) BASIS FOR APPOINTMENT.
(a) A trustee may be appointed
when a court finds the health and welfare of facility residents are in jeopardy
pursuant to ORS 441.281.
(b) A temporary manager may
be appointed by the Department, with consent of the licensee, if the Department
determines the health or safety of facility residents is in jeopardy pursuant to
OAR 411-089-0075.
(3) LICENSEE REPAYMENT TO
FACILITY FUND. When the Department is required to utilize the Facility Fund to meet
expenses of a trustee or temporary manager, the amount used shall constitute a loan
to the facility and shall be repayable to the Facility Fund.
(4) FACILITY FUND FEE ASSESSMENT.
(a) Licensees shall pay an
annual fee that does not exceed the annual license fee until the Facility Fund balance
reaches $750,000.
(b) When the Facility Fund
balance reaches $750,000, annual fee collection shall be discontinued.
(c) When the Facility Fund
balance falls below $600,000, annual fee collection shall be reinstituted.
(5) ALLOWABLE COST. The facility
payment described in section (4)(a) of this rule shall be considered an allowable
cost.
Stat Auth: ORS 441.341, 441.615, 441.637,
441.710, 441.715, & 441.990
Stats Implemented: ORS 441.301,
441.303, and 441.336
Hist.: SPD 11-2010, f. 6-30-10,
cert. ef. 7-1-10; APD 51-2014(Temp), f. 12-31-14, cert. ef. 1-1-15 thru 6-29-15;
APD 13-2015, f. 6-24-15, cert. ef. 6-28-15
411-089-0075
Temporary Manager
(1) APPOINTMENT. The Department, with
the consent of the licensee, may appoint a temporary manager to assume control of
the day-to-day operation of the facility in accordance with Oregon Laws 2009, chapter
539, sections 14 through 18. The appointment may be for a period not to exceed six
months.
(2) CRITERIA. A temporary
manager may be appointed if the Department determines the health or safety of residents
in the facility are, or in the immediate future shall be, in jeopardy based upon:
(a) The licensee’s
unwillingness or inability to comply with Department rules in the operation of the
facility;
(b) The imminent insolvency
of the facility;
(c) The Department’s
revocation or suspension of the license of the facility; or
(d) The Department’s
determination the licensee intends to cease operations and to close the facility
without adequate arrangements for the relocation of the residents.
(3) DUTIES AND POWERS. The
temporary manager has all of the duties and powers, as agreed upon between the Department
and the licensee, that are necessary to ensure the safety and well-being of the
residents and the continued operation of the facility.
(4) QUALIFICATIONS. In order
to qualify for appointment as temporary manager, the prospective appointee must:
(a) Be familiar with the
Department’s rules for the operation of the facility to be served;
(b) Be familiar with the
needs of the resident population in the facility to be served; and
(c) Have a demonstrated history
(five year minimum) of operating and managing a similar facility in substantial
compliance with Department rules.
Stat. Auth.: ORS 441.615, 441.637, 441.710,
441.715 & 441.990
Stats. Implemented: ORS 410.070,
441.055, 441.615, 441.637, 441.715, 441.990
Hist.: SPD 24-2009(Temp),
f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 11-2010, f. 6-30-10, cert. ef. 7-1-10;
APD 51-2014(Temp), f. 12-31-14, cert. ef. 1-1-15 thru 6-29-15; APD 13-2015, f. 6-24-15, cert. ef. 6-28-15
Complaints, Inspections and Sanctions
411-089-0100
Complaint Intake, Investigation
(1) Complaint Intake. The local APD
or Type B AAA office receiving a complaint shall ask questions to obtain as much
of the information requested on the APD Complaint Intake Form as possible. The local
APD or Type B AAA office shall have at least one person designated and available
to receive complaint calls throughout the work day.
(2) Complaint Investigation.
(a) All Complaints Investigated.
The Department shall ensure all complaints, including anonymous complaints, received
regarding violation of nursing facility laws are investigated.
(b) Multiple Problems. If
the complaint alleges more than one problem, each allegation of abuse or another
rule violation shall be treated as a separate complaint, and shall be given a separate
finding. This is not intended to require a separate status report or complaint investigation
report for each allegation.
(c) Complainant Interview.
The APD or Type B AAA office representative shall interview the complainant immediately
and, as necessary, during the investigation.
(d) Accompany Investigator.
The investigator shall ask if the complainant, a designee, or both wish to accompany
the investigator to the site. The purpose of allowing the complainant or a designee
to accompany the investigator is to identify individuals and circumstances relevant
to the complaint. If someone is to accompany the investigator, the investigator
shall notify such party of the time and allow the party to accompany the investigator
during the site visit.
(e) Timeframe to Begin Investigation.
The investigations shall be initiated as follows:
(A) If the complaint alleges
a resident's health or safety is in imminent danger or the resident has recently
died, been hospitalized, or been treated in an emergency department, the on-site
investigation shall begin within two hours of the complaint.
(B) If the complainant alleges
circumstances that may result in abuse and the circumstances may place a resident's
health or safety in imminent danger, the on-site investigation shall begin before
the end of the first working day following receipt of the complaint.
(C) All other complaint investigations
shall begin and be completed within 90 days following receipt of the complaint.
(f) Prior Notification Prohibited.
Neither the Department nor the local APD or Type B AAA office shall contact the
facility before the on-site investigation.
(g) Facility Visit. The investigation
shall include at least one unannounced visit to the facility. Upon arrival at the
facility, the investigator shall announce his or her presence to the administrator
or other person designated to be in charge. The investigator shall explain the purpose
of the visit, unless the investigator has reason to believe that disclosing the
purpose of the visit would impede the investigation.
(h) Witness Interview. Reasonable
effort shall be made to interview all possible witnesses, including alleged perpetrators
(if any), the involved residents and any other persons, including other residents,
identified by any source as having personal knowledge about any allegations.
(A) Investigators have the
authority to conduct the interview in private unless the witness expressly makes
an unsolicited request that a third party be present.
(B) The investigator shall
obtain the mailing address of the alleged perpetrator.
(C) If the investigator is
unable to interview a witness identified by the complainant, the complainant shall
be notified before the investigation is concluded.
(i) Investigation Format.
In addition to interviews, the investigator shall make personal observations of
physical circumstances and review any documentation, including clinical records.
The facility shall promptly provide all requested documentation that is available,
for review and copying.
Stat. Auth.: ORS 410.070, 441.055 &
441.637
Stats. Implemented: ORS 441.637
& 441.650
Hist.: SSD 1-1995, f. 1-30-95,
cert. ef. 2-1-95; APD 51-2014(Temp), f. 12-31-14, cert. ef. 1-1-15 thru 6-29-15;
APD 13-2015, f. 6-24-15, cert. ef. 6-28-15
411-089-0110
Initial Status Report (Abuse Complaints
Only)
(1) Initial Status Report for Abuse
Investigations (Local APD or Type B AAA Office). Except in cases where the investigation
is part of a general inspection pursuant to federal law, the local APD or Type B
AAA office shall complete an Initial Status Report for all abuse investigations
within two working days of the start of the investigation.
(2) Content. The Initial
Status Report shall include:
(a) A summary of the complaint
identifying each alleged incident or problem. The Initial Status Report shall not
include names of residents, complainants, or other people interviewed during the
investigation;
(b) The status of the investigation;
(c) Whether the complaint
was filed at the direction of facility administration;
(d) A determination of whether
action to protect the residents is needed and whether the facility must take action;
(e) The name and telephone
number of the investigator;
(f) The projected date the
Complaint Investigation Report must be completed; and
(g) A statement that the
Complaint Investigation Report is available upon request after the Department issues
a Letter of Determination.
(3) Distribution. The Initial
Status Report shall be provided either in person or by mail to the following individuals
as soon as practical, but no later than two working days after its completion:
(a) The complainant, unless
the complainant waives the requirement;
(b) If the complaint involves
a specific resident or residents, to the residents or persons designated to receive
information concerning the residents;
(c) A representative of the
Long Term Care Ombudsman, upon request;
(d) The facility; and
(e) OLRO.
(4) Availability of Initial
Status Report. Upon completion, the Initial Status Report shall be placed in the
local APD or Type B AAA facility files and available for public inspection.
Stat. Auth.: ORS 410.070, 441.055 &
441.637
Stats. Implemented: ORS 441.637
& 441.650
Hist.: SSD 1-1995, f. 1-30-95,
cert. ef. 2-1-95; APD 51-2014(Temp), f. 12-31-14, cert. ef. 1-1-15 thru 6-29-15;
APD 13-2015, f. 6-24-15, cert. ef. 6-28-15
411-089-0120
Complaint Investigation Report (Local SPD/AAA
Office)
(1) Report Required. The investigator
shall write a complaint investigation report after each investigation is completed.
(2) Content. The complaint
investigation and the findings of the investigation shall be summarized on the complaint
investigation report form. The form shall not include the names of any resident,
complainant, or persons interviewed. The investigation report shall include:
(a) The nature of the allegations;
(b) The investigator's personal
observations relating to relevant evidence, including the dates and times of each
incident (as appropriate);
(c) A summary of the documents
reviewed;
(d) A summary of each interview;
(e) The investigator's findings
regarding the incident or problem alleged in each allegation; and
(f) The factual basis for
the finding.
(3) Investigator's Conclusions.
For each alleged wrongdoing, the investigator shall prepare a separate evaluation
and written conclusion. The conclusion shall be:
(a) The alleged wrongdoing
is substantiated;
(b) The alleged wrongdoing
is not substantiated; or
(c) The investigator is unable
to determine whether the alleged wrongdoing is substantiated or not substantiated
because necessary, relevant information is unable to be obtained; or following a
complete investigation, a reasonable person is unable objectively to conclude whether
it was likely the wrongdoing occurred.
(4) Timeframe for Completion
Processing (Local APD or Type B AAA Office).
(a) If a complaint alleges
abuse, the complaint report shall be completed within five working days after the
investigation is completed, but not later than 60 days after receipt of the complaint.
(b) All other complaint investigation
reports shall be completed within 90 days of the receipt of the complaint.
(c) Investigation reports
shall be sent to OLRO promptly upon completion.
Stat. Auth.: ORS 410.070, 441.055 &
441.637
Stats. Implemented: ORS 441.637,
441.650 & 441.676
Hist.: SSD 1-1995, f. 1-30-95,
cert. ef. 2-1-95; APD 51-2014(Temp), f. 12-31-14, cert. ef. 1-1-15 thru 6-29-15;
APD 13-2015, f. 6-24-15, cert. ef. 6-28-15
411-089-0130
Division Findings for Complaint Investigations
(OLRO)
OLRO Review. OLRO shall review the Complaint
Investigation Report and any evidence submitted with the report.
(1) OLRO Determination. OLRO
shall review the Complaint Investigation Report and shall determine for each alleged
violation:
(a) There is "Substantiated
abuse," which means a reasonable person is able objectively to conclude it is more
likely than not abuse occurred, including identification of rule violated;
(b) There is "Substantiated,
non-abuse," which means a reasonable person is able objectively to conclude it is
more likely than not a rule violation, other than abuse, occurred, including identification
of rule violated;
(c) Is "Unsubstantiated,"
which means a reasonable person is able objectively to conclude it is unlikely any
rule violation occurred; or
(d) Is "Unable to Substantiate,"
which means an investigation is not completed because necessary, relevant information
is unable to be obtained; or that following a complete investigation, a reasonable
person is unable objectively to conclude whether it was more or less likely a rule
violation occurred.
(2) If OLRO determines there
is substantiated abuse, OLRO shall determine whether the facility, or an individual,
or both, were responsible. In determining responsibility, OLRO shall consider intent,
knowledge, ability to control, and adherence to professional standards, as applicable.
(a) Facility Responsible.
Examples of when OLRO shall determine the facility is responsible for the abuse
include, but are not limited to the following:
(A) Failure to provide minimum
staffing in accordance with OAR 411-086-0100(2), without reasonable effort to correct;
(B) Failure to check for,
or act upon, relevant information available from a licensing board;
(C) Failure to act upon information
from any source regarding a possible history of abuse by any staff or prospective
staff;
(D) Failure to adequately
train or orient staff;
(E) Failure to provide adequate
supervision of staff or residents, or both;
(F) Failure to allow sufficient
time to accomplish assigned tasks;
(G) Failure to provide adequate
services;
(H) Failure to provide adequate
equipment or supplies; or
(I) Failure to follow orders
for treatment or medication.
(b) Individual Responsible.
Examples of when OLRO shall determine an individual is responsible shall include,
but are not limited to:
(A) Intentional acts against
a resident including assault, rape, kidnapping, murder, sexual abuse, or verbal
or mental abuse;
(B) Acts contradictory to
clear instructions from the facility, unless the act is determined by OLRO to be
caused by a "facility problem" such as those identified in paragraph (2)(b)(A) of
this rule;
(C) Callous disregard for
resident rights or safety; or
(D) Intentional acts against
a resident's property (e.g., theft, misuse of funds).
(c) An individual shall not
be considered responsible for the abuse if the individual demonstrates the abuse
was caused by factors beyond the individual's control. "Factors beyond the individual's
control" are not intended to include such factors as misuse of alcohol or drugs
or lapses in sanity.
Stat. Auth.: ORS 410.070, 441.055 &
441.637
Stats. Implemented: ORS 441.637,
441.650, 441.665 & 441.677
Hist.: SSD 1-1995, f. 1-30-95,
cert. ef. 2-1-95; APD 51-2014(Temp), f. 12-31-14, cert. ef. 1-1-15 thru 6-29-15;
APD 13-2015, f. 6-24-15, cert. ef. 6-28-15
411-089-0140
Letters of Determination
Within 60 days of receipt by the Department
of the investigation report, the Department shall issue a letter of determination.
(1) CONTENT. The letter of
determination shall:
(a) Explain the nature of
each allegation;
(b) Include the date and
time of each occurrence;
(c) For each allegation,
include a determination of whether the allegation is substantiated, unsubstantiated,
or unable to substantiate;
(d) For each substantiated
allegation, state whether the violation was abuse or another rule violation;
(e) For each substantiated
allegation of abuse, explain the Department's determination of responsibility;
(f) Include a copy of the
complaint investigation report;
(g) State that the complainant,
any individual found responsible for abuse, and the facility have 10 days to provide
additional or different information; and
(h) Explain, when applicable,
if sanctions (e.g., civil penalty, license revocation) are pursued, a formal appeal
process shall be available.
(2) APPEAL RIGHTS, NURSING
ASSISTANT. The letter of determination, in cases of substantiated abuse by a nursing
assistant, shall explain the following:
(a) The Department's intent
to enter the finding of abuse into the Nursing Assistant Registry;
(b) The nursing assistant
may provide additional information for inclusion in the Nursing Assistant Registry
if provided within 10 days;
(c) The Nursing Assistant
Registry;
(d) The nursing assistant
has 10 days to respond in writing with different or additional information, 30 days
to request in writing a contested case hearing as provided in ORS 183.411 to 183.470,
and the consequences of failure to respond; and
(e) If the opportunity to
request a contested case hearing expires without a request for hearing by the nursing
assistant, the nursing assistant shall be found responsible for the abuse and the
finding shall be entered in the Nursing Assistant Registry.
(3) DISTRIBUTION.
(a) The letter of determination
shall be distributed to the facility, the complainant (if known), and the local
APD or Type B AAA office;
(b) The letter of determination
shall be sent by certified mail or delivered in person to any nursing assistant
found responsible for abuse. In the case of a nursing assistant, notice sent to
the nursing assistant's last known address is sufficient to meet the requirements
of this rule;
(c) The letter of determination
shall also be mailed to any health-related board or agency that certified or licensed
an individual determined to be responsible for abuse. However, if the party determined
to be responsible is a nursing assistant, the letter may not be mailed to the State
Board of Nursing until the nursing assistant has exhausted all his or her appeal
rights; and
(d) A copy of the letter
of determination shall be placed in the Department's facility complaint file.
(4) REVISION.
(a) The Department may reinvestigate
a complaint, issue a revised letter of determination, or both if the Department
determines further information provided by the complainant, accused individual,
or facility merits such action.
(b) If the Department issues
a revised letter of determination, the letter shall be distributed to all individuals
identified in section (3) of this rule.
(5) FAILURE TO REQUEST HEARING
OR TO APPEAR.
(a) If the nursing assistant
fails to request a contested case hearing in writing within 30 days of the letter
of determination, or if the nursing assistant scheduled to attend the hearing fails
to attend, the Department shall affirm the letter of determination and notify the
State Board of Nursing of the Department's finding. The abuse finding shall be entered
into the Nursing Assistant Registry.
(b) If the nursing assistant
is scheduled to appear at a contested case hearing, but fails to attend at the scheduled
time, or within 15 minutes thereafter, the nursing assistant shall be considered
to have waived the right to a hearing. The hearing may be rescheduled if:
(A) A written request to
reschedule the hearing is received by the Department within 10 days after the scheduled
hearing; and
(B) The causes for not attending
at the scheduled time for the hearing and for not requesting a postponement of the
hearing before the hearing were beyond the control of the nursing assistant.
(6) JUDICIAL REVIEW. The
nursing assistant found to be responsible for abuse shall be provided notice of
the opportunity for judicial review pursuant to ORS 183.482. This notice shall accompany
or be incorporated within the Department’s final order regarding the nursing
assistant’s responsibility for abuse.
Stat. Auth.: ORS 410.070, 441.055 &
441.637
Stats. Implemented: ORS 441.637
& 441.677
Hist.: SSD 1-1995, f. 1-30-95,
cert. ef. 2-1-95; Administrative correction, 6-24-99; SPD 24-2009(Temp), f. 12-31-09,
cert. ef. 1-1-10 thru 6-30-10; SPD 11-2010, f. 6-30-10, cert. ef. 7-1-10; APD 51-2014(Temp),
f. 12-31-14, cert. ef. 1-1-15 thru 6-29-15; APD 13-2015, f. 6-24-15, cert. ef. 6-28-15

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