OAR Chapter 411 — Department of Human Services, Aging and People with Disabilities and Developmental Disabilities

Division 1 MEDICAID AND LONG TERM CARE (MLTCQRAC) AND CONTESTED CASE HEARINGS

Or. Admin. R. 411-001-0100 Medicaid Long-Term Care Quality and Reimbursement Advisory Council - Purpose

(1) The purpose of the rules in OAR chapter 411, division 001 is to establish procedures for the operation of the Medicaid Long Term Care Quality and Reimbursement Advisory Council (Council).

(2) The Council was established by the 1995 Legislative Assembly and consists of 12 stakeholders including the Long Term Care Ombudsman, consumers, advocates, and providers. Council appointments are made by the Governor, the President of the Senate, the Speaker of the House, the Governor's Commission on Senior Services, and the Oregon Disabilities Commission as described in ORS 410.550.

(3) The Council is directed to advise the Department of Human Services or the Oregon Health Authority on changes or modifications to the Medicaid reimbursement system and the adverse and positive effects of the changes or modifications on the quality of long term care and community-based services and reimbursement for long term care and community-based services.

History

Statutory/Other Authority: ORS 410.070 & 410.555
Statutes/Other Implemented: ORS 410.550 - 410.555
SPD 49-2013, f. 12-17-13, cert. ef. 1-1-14
SPD 18-2009, f. 12-23-09, cert. ef. 1-1-10
SPD 18-2006, f. 5-12-06, cert. ef. 6-1-06
SSD 7-1996, f. 8-30-96, cert. ef. 9-1-96

Or. Admin. R. 411-001-0110 Medicaid Long-Term Care Quality and Reimbursement Advisory Council - Definitions

(1) "Authority" means the Oregon Health Authority.

(2) "Council" means the Medicaid Long Term Care Quality and Reimbursement Advisory Council.

(3) "Department" means the Department of Human Services.

(4) "Medicaid Reimbursement System" means the method or methodology associated with reimbursing providers of long term care and community-based services under the Department. The Medicaid reimbursement system does not include rates established by collective bargaining, rates established by actuarial calculations, or rate increases that have been approved and funded by the Legislature.

(5) "Quality" means the degree to which long term care systems, services, and supplies for individuals and populations increase the likelihood of positive outcomes.

(6) "These Rules" mean the rules in OAR chapter 411, division 001.

History

Statutory/Other Authority: ORS 410.070 & 410.555
Statutes/Other Implemented: ORS 410.550–410.555
SPD 49-2013, f. 12-17-13, cert. ef. 1-1-14
SPD 18-2009, f. 12-23-09, cert. ef. 1-1-10
SPD 18-2006, f. 5-12-06, cert. ef. 6-1-06
SSD 7-1996, f. 8-30-96, cert. ef. 9-1-96

Or. Admin. R. 411-001-0115 Medicaid Long-Term Care Quality and Reimbursement Advisory Council - Council Administration

Council By-Laws supplement ORS 410.550 to 410.555 and these rules.

History

Statutory/Other Authority: ORS 410.070 & 410.555
Statutes/Other Implemented: ORS 410.550 - 410.555
SPD 18-2009, f. 12-23-09, cert. ef. 1-1-10

Or. Admin. R. 411-001-0118 Medicaid Long-Term Care Quality and Reimbursement Advisory Council - Council Scope

(1) At the beginning of each legislative session, the Council shall review the Governor's Recommended Budget for the Department. The Council may submit a recommendation in support or opposition of the Governor's Recommended Budget.

(2) The Department or Authority shall submit any proposed change or modification to the Medicaid reimbursement system to the Council for the Council's review and recommendation.

(3) Upon review of any proposed change or modification under section (2) of this rule, the Council shall issue a written advisory recommendation to the Department or Authority as described in OAR 411-001-0120.

(4) Prior to implementing any change or modification to the Medicaid reimbursement system, the Department or Authority shall submit the Council's written recommendation to the Legislative Assembly or to the Emergency Board if the Legislative Assembly is not in session.

(5) If the Council has a disagreement with any change or modification to the Medicaid reimbursement system, the Department or Authority shall obtain the approval of the Legislative Assembly or the Emergency Board if the Legislative Assembly is not in session, before instituting the proposed change or modification. A proposed change or modification with an estimated fiscal impact of $100,000 or less is exempt from this provision.

(6) The Department shall inform the Council of all rate changes within the Department's Aging and People with Disabilities Programs, including rates established by collective bargaining, rates established by actuarial calculations, and rate increases that have been approved and funded by the Legislature.

(7) The Council may review the Department's strategic initiatives in order to assess the likelihood of increased quality for individuals served by the Department.

History

Statutory/Other Authority: ORS 410.070 & 410.555
Statutes/Other Implemented: ORS 410.550–410.555
SPD 49-2013, f. 12-17-13, cert. ef. 1-1-14
SPD 18-2009, f. 12-23-09, cert. ef. 1-1-10

Or. Admin. R. 411-001-0120 Medicaid Long-Term Care Quality and Reimbursement Advisory Council - Council Operation

(1) Within 60 calendar days after receipt from the Department or Authority of any proposed change or modification to the Medicaid reimbursement system, the Council shall issue a written advisory recommendation to the Department or Authority. The 60-day period begins the day following delivery to the chairperson of the Council if a proposed change or modification is faxed, hand-delivered, or e-mailed. Otherwise, the 60-day period begins the third day after the date of mailing first class.

(2) A written advisory recommendation issued by the Council must state:

(a) Whether the Council supports or opposes the proposed change or modification;

(b) Whether the Council concludes that the proposed change or modification shall have an adverse or positive effect on the quality of long term care and community-based services provided under the Oregon Medicaid program; and

(A) The reason for the Council's position;

(B) A list of the principal documents, reports, or studies, if any, relied upon in considering the proposed change or modification; and

(3) Timeline for written recommendation.

(a) Notwithstanding section (1) of this rule, the Department or Authority may shorten the time within which the Council must issue a written recommendation if the Department or Authority decides to adopt a proposed change or modification by temporary rule and if the Department or Authority prepares a written statement in which the Department or Authority:

(A) Finds that failure to make proposed changes or modifications promptly is likely to result in serious prejudice to the public interest or to the interests of individuals receiving Department or Authority services, providers of long term care or community-based services, or other affected parties;

(B) Specifies reasons why the Department or Authority's failure to act promptly is likely to result in serious prejudice to those interests;

(C) States the need for the proposed change or modification and how the change or modification is intended to meet the need;

(D) Lists the principal documents, reports, or studies, if any, prepared or relied upon by the Department or Authority in evaluating the need for the proposed change or modification; and

(E) Cites the legal authority relied upon and bearing upon the adoption, amendment, or suspension of the rule if the proposed change or modification is to be made by administrative rule.

(b) However, the Department or Authority may not shorten the time for written recommendation to less than five business days.

(4) If the Department or Authority intends to adopt an administrative rule that directly or indirectly proposes a change or modification to the Medicaid reimbursement system, the Department or Authority may not proceed with notice requirements provided for in ORS 183.335 until the Department or Authority has received the Council's written recommendation as described in section (2) or (3) of this rule.

History

Statutory/Other Authority: ORS 410.070 & 410.555
Statutes/Other Implemented: ORS 410.550 - 410.555
APD 32-2014, f. 8-26-14, cert. ef. 9-1-14
APD 13-2014(Temp), f. 5-8-14, cert. ef. 5-9-14 thru 11-5-14
SPD 49-2013, f. 12-17-13, cert. ef. 1-1-14
SPD 18-2009, f. 12-23-09, cert. ef. 1-1-10
SPD 18-2006, f. 5-12-06, cert. ef. 6-1-06
SSD 7-1996, f. 8-30-96, cert. ef. 9-1-96

Or. Admin. R. 411-001-0500 Contested Case Hearings

(1) OAR 411-001-0500, 411-001-0510, and 411-001-0520 apply to all contested case hearing requests authorized under OAR chapter 411, except to the extent that:

(a) There is another conflicting rule in OAR chapter 411 that applies to the hearing request; or

(b) There is a rule in OAR chapter 411 that applies a conflicting rule in OAR chapter 461, division 025 to the hearing request.

(2) The Department of Human Services (Department) conducts contested case hearings in accordance with the Attorney General's model rules in OAR chapter 137, division 003, except to the extent that Department rules are permitted to and provide for different procedures.

(3) The Department may not provide the telephone number and addresses of a witness if the Department has a reasonable concern that the release of information may affect the safety of the witness.

(4) The Department’s contested case hearings based on hearing requests authorized in OAR chapter 411 are not open to the public and are closed to nonparticipants, except nonparticipants may attend subject to the consent of the parties and the Department, as well as applicable confidentiality laws.

(5) The Department has adopted the exceptions to the Attorney General's model rules set out in section (3) of this rule and OAR 411-001-0510(6) due to caseload volume and because these model rule discovery procedures would unduly complicate or interfere with the hearing process.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.010
SPD 6-2013, f. & cert. ef. 4-2-13
SPD 14-2012(Temp), f. & cert. ef. 10-5-12 thru 4-3-13

Or. Admin. R. 411-001-0510 Lay Representation in Contested Case Hearings

(1) Subject to the approval of the Attorney General, an officer or employee of the Department of Human Services (Department) is authorized to appear on behalf of the Department in the following types of hearings conducted by the Office of Administrative Hearings:

(a) Eligibility for public assistance services or other benefits available through a waiver or state plan administered by the Department’s Aging and People with Disabilities (APD) or Office of Developmental Disability Services (ODDS), including but not limited to the level or amount of benefits, and effective date;

(b) Eligibility for medical benefits, the level and amount of benefits, and effective date;

(c) Eligibility for Supplemental Nutrition Assistance Program (SNAP), the level and amount of benefits, and effective date, and the termination, suspension, reduction, or denial of benefits.

(d) Client overpayments and intentional program violations related to public assistance or medical assistance, SNAP, waivered or state plan service benefits or medical benefits;

(e) Medical assistance, including but not limited to eligibility for services available through a waiver or state plan for medical assistance, the level and amount of services or benefits, and the termination, suspension, reduction, or denial of medical assistance services, prior authorizations, or medical management decisions; and

(f) Consumer-employed provider matters, including but not limited to provider enrollment or denial of enrollment, overpayment determinations, audits, and sanctions; and

(g) Provider enrollment or denial of enrollment, provider overpayments, audits, and audit sanctions.

(2) A Department officer or employee acting as the Department’s representative may not make legal argument on behalf of the Department.

(a) "Legal argument" includes arguments on:

(A) The jurisdiction of the Department to hear the contested case;

(B) The constitutionality of a statute or rule or the application of a constitutional requirement to the Department; and

(b) "Legal argument" does not include presentation of motions, evidence, examination and cross-examination of witnesses, or presentation of factual arguments or arguments on:

(A) The application of the statutes or rules to the facts in the contested case;

(B) Comparison of prior actions of the Department in handling similar situations;

(D) The admissibility of evidence; and

(E) The correctness of procedures being followed in the contested case hearing.

(3) When an officer or employee appears on behalf of the Department, the administrative law judge shall advise the Department's representative of the manner in which objections may be made and matters preserved for appeal. Such advice is of a procedural nature and does not change applicable law on waiver or the duty to make timely objection.

(4) If the administrative law judge determines that statements or objections made by the Department representative appearing under section (1) of this rule involve legal argument as defined in this rule, the administrative law judge shall provide reasonable opportunity for the Department representative to consult the Attorney General and permit the Attorney General to present argument at the hearing or to file written legal argument within a reasonable time after conclusion of the hearing.

(5) The Department is subject to the Code of Conduct for Non-Attorney Representatives at Administrative Hearings, which is maintained by the Oregon Department of Justice and available at http://www.doj.state.or.us. A Department representative appearing under section (1) of this rule must read and be familiar with the Code of Conduct for Non-Attorney Representatives at Administrative Hearings.

(6) When a Department officer or employee represents the Department in a contested case hearing, requests for admission and written interrogatories are not permitted.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 183.452 & 409.010
APD 15-2014, f. & cert. ef. 6-4-14
SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 6-2013, f. & cert. ef. 4-2-13

Or. Admin. R. 411-001-0520 Late Contested Case Hearing Requests

(1) When the Department of Human Services (Department) receives a completed hearing request that is not filed within the timeframe required by the applicable rule in OAR chapter 411 but is filed no later than the deadlines set out in section (2) of this rule:

(a) The Department shall refer the hearing request to the Office of Administrative Hearings for a contested case hearing on the merits of the Department's action described in the notice when:

(A) The Department finds that the claimant and claimant's representative did not receive the notice and did not have actual knowledge of the notice; or

(B) The Department finds good cause that the claimant did not meet the timeframe required due to excusable mistake, surprise, excusable neglect (which may include neglect due to significant cognitive or health issues), circumstances beyond the claimant’s control, reasonable reliance on the statement of a Department employee or an adverse provider relating to procedural requirements, or due to fraud, misrepresentation, or other misconduct of the Department or a party adverse to the claimant.

(b) The Department refers the request for a hearing to the Office of Administrative Hearings for a contested case proceeding to determine whether the claimant is entitled to a hearing on the merits if there is a dispute between the claimant and the Department about either of the following paragraphs.

(A) The claimant or claimant's representative received the notice or had actual knowledge of the notice. At the hearing, the Department must show that the claimant or claimant's representative had actual knowledge of the notice or that the Department mailed or electronically mailed the notice to the correct address of the claimant or claimant's representative, as provided to the Department.

(B) The claimant has established good cause for a contested case hearing on the merits under paragraph (a)(B) of this section.

(c) The Department may only dismiss such a request for hearing as untimely without a referral to the Office of Administrative Hearings if the following requirements are met:

(A) The undisputed facts show that the claimant does not qualify for a hearing under this section; and

(B) The notice was served personally or by registered or certified mail.

(2) The Department shall consider whether a late hearing request meets the late request criteria set out in section (1) of this rule:

(a) When the hearing request is received up to 120 days after a notice became a final order by default if no provider is a party to the contested case.

(b) When the hearing request is received up to 60 days after a notice became a final order by default if at least one provider is a party to the contested case.

(3) Unless required otherwise by the Servicemembers Civil Relief Act, the Department may dismiss a request for hearing as untimely if the Department receives a completed hearing request after the applicable deadline in section (2) of this rule.

History

Statutory/Other Authority: ORS 409.050 & 411.103
Statutes/Other Implemented: ORS 409.010 & 411.103
SPD 12-2013, f. 5-31-13, cert. ef. 6-1-13
SPD 6-2013, f. & cert. ef. 4-2-13

Division 2 DESIGNATION OF PLANNING AND SERVICE AREAS

Or. Admin. R. 411-002-0100 Definitions Relating to the Designation of Planning and Service Areas

(1) “Area Agency on Aging” means the designated entity with which the Division contracts to meet the requirements of the Older Americans Act and ORS Chapter 410 in planning and providing services to the elderly or elderly and disabled population for a designated Planning and Service Area.

(2) “Division” means the Seniors and People with Disabilities Division of the Department of Human Services.

(3) “Planning and Service Area” means the geographical area, consisting of one or more counties, for which one Area Agency on Aging is designated by the Division to plan for and provide services under the Older Americans Act and ORS Chapter 410.

(4)(a) “Type A Area Agency on Aging” means a designated entity that administers the Older Americans Act and Oregon Project Independence programs for a Planning and Service Area. A Type A Area Agency on Aging may be:

(A) An office or agency of a unit of general purpose local government which is selected by the chief elected official of the unit to serve as an Area Agency on Aging; or

(B) Any office or agency designated by the appropriate chief elected officials of any combination of units of general or general and special purpose local government formed in accordance with ORS Chapter 190; or

(b) In Planning and Service Areas served by a Type A Area Agency on Aging, Medicaid, financial and adult protective services, and regulatory programs for the elderly and disabled are administered by a Multi-Service Office of the Division.

(5) “Type B Area Agency on Aging” means a designated entity that meets the definition of an area agency on aging, and is administered by a unit or combination of units of general purpose local government, and administers the Medicaid, financial and adult protective services, and regulatory programs for the elderly or the elderly and disabled.

(a) A Type B Area Agency on Aging may contract with the Division for services of state employees; or

(b) A Type B Area Agency on Aging may have such employees transferred to employment by the Area Agency by transfer agreement.

(6) “Type B1 Area Agency on Aging” means a designated entity that meets the definition of a Type B area agency on aging, and administers the Medicaid, financial and adult protective services, and regulatory programs for the elderly. In a Planning and Service Area served by a Type B1 Area Agency on Aging, the Medicaid and financial assistance program for the Disabled is administered by a Disability Service Office of the Division.

(7) “Type B2 Area Agency on Aging” means a designated entity that meets the definition of a Type B1 area agency on aging and administers the Medicaid, financial, adult protective services and regulatory programs for the elderly and disabled.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.210 - 410.300
SDSD 9-1999, f. & cert. ef. 11-1-99
SSD 3-1986, f. & ef. 2-5-86

Or. Admin. R. 411-002-0105 Basis for Planning and Service Area Designation

(1) Boundaries for Planning and Service Areas will be designated by the Division Administrator and indicated in the current State Plan on Aging.

(2) Designation of additional Planning and Service Areas shall be in compliance with the Older Americans Act, appropriate federal regulations, and Division administrative rules.

(3) The official decision-making body for any unit of general purpose local government, a region recognized for area-wide planning, metropolitan area or Indian reservation may make application to the Division to be designated as a Planning and Service Area. The Division will notify the applicant of its approval or disapproval within 60 days of either the date the application is received by the Division, or any closing date for applications, whichever is later.

(4) An Indian reservation must have at least 250 residents age 60 or over to be designated as a Planning and Service Area. Services on Indian reservations so designated shall be available to all persons 60 years of age or older who reside on the reservation.

(5) During its review of any application for Planning and Service Area designation, the Division will consider:

(a) The distribution in the state of persons age 60 and older, including those who have greatest economic and social need, particularly low-income minority elderly;

(b) The views of public officials of the units of general purpose local governments;

(c) The incidence of need for services provided under the Older Americans Act and ORS Chapter 410 and the resources to meet these needs;

(d) The boundaries of existing areas within the State which were drawn for the planning or administration of Older Americans Act programs;

(e) The location of units of general purpose local government within the State; and

(f) Any other relevant factors, including those listed in sections (8), (9) and (10) of this rule.

(6) Prior to making a decision, the Division will conduct hearings in the county or counties requesting designation, the locality of the Area Agency on Aging currently designated for the existing Planning and Service Area and in one or more other sites designated by the Administrator of the Division. The Governor’s Commission on Senior Services, and where applicable, the Oregon Disabilities Commission, shall be notified and invited to participate in these hearings.

(7) In the event the Administrator of the Division shall consider designating a new Planning and Service Area, the Governor's Commission on Senior Services, and where applicable, the Oregon Disabilities Commission, shall participate in one or more public hearings, normally separate from those described in section (6) of this rule, prior to a final decision and prior to submission to the Governor for signature as a change to the State Plan on Aging.

(8) It is the responsibility of the applicant to submit sufficient information and supporting documentation which will allow the Division to make a decision on designation. All information submitted by the applicant must specifically address section (5) of this rule and provide responses to the following questions:

(a) How has the distribution of persons age 60 and older in the current Planning and Service Area changed since its original designation?

(b) How has this change affected the delivery of services in the current Planning and Service Area(s)?

(d) Why is this designation the best method to improve service delivery? Indicate which other alternatives have been considered;

(e) Will this designation have any negative effects, directly or indirectly, on the current Planning and Service Area and programs being administered in that area? Indicate and describe;

(f) Will this designation have an impact on resources under the area plan within the existing Planning and Service Area? Describe for both the proposed Planning and Service Area and the areas not covered by the proposed designation which are in the current Planning and Service Area;

(g) What are the views of public officials of units of general purpose local government within the current Planning and Service Area? Submit documentation.

(9) The Division will request comments from the existing Area Agencies and consider the overall impact within the State of Oregon.

(10) Upon receipt of a request for designation of a new Planning and Service Area, and prior to the Division conducting hearings as required by section (6) of this rule, the impact of creating a new Planning and Service Area will be calculated by the Division, distributed to Area Agencies on Aging and made available to interested parties upon request.

(11) If an application is disapproved by the Division, the applicant may appeal for an Administrative Review to the Division. Such an appeal must be made in writing within 30 days of notice of disapproval. The Division will initiate an Administrative Review within 30 days of receipt of an appeal. A written decision will be issued within 30 days of completing the review.

(12) An applicant, as specified in section (3) of this rule, may appeal to the Assistant Secretary on Aging if the Division denies designation. The applicant must appeal in writing within 30 days after receipt of the Division’s Administrative Review decision, or 30 days following the initial decision, if the applicant does not request an Administrative Review.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.210 - 410.300
SDSD 9-1999, f. & cert. ef. 11-1-99
SSD 3-1986, f. & ef. 2-5-86

Or. Admin. R. 411-002-0110 Designation of Area Agencies on Aging

(1) Each Planning and Service Area shall have only one designated Area Agency on Aging.

(2) The Administrator of the Division shall designate Area Agencies on Aging.

(3) The designation shall comply with the Older Americans Act by giving right of first refusal in designating new Area Agencies on Aging to a unit of general purpose local government, of which the boundaries, and the boundaries of the proposed Planning and Service Area, are reasonably contiguous. If a unit of local government does not exercise this right, the Division shall give preference to an established office on aging.

(4) A designated Area Agency on Aging shall be:

(a) An office or agency of a unit of general purpose local government, which is selected by the chief elected official of the unit to serve as an Area Agency; or

(b) Any office or agency designated by the appropriate chief elected officials of any combination of units of general or general and special purpose local government formed in accordance with ORS Chapter 190; or

(5) Unless otherwise requested by the applicant and approved by the Division, designation of new Area Agencies on Aging become effective at the beginning of the state fiscal year, July 1.

(6) Prior to making a decision on designation of a new Area Agency on Aging, the Division shall conduct an on-site review to determine the capacity of the applicant to perform the functions of an Area Agency on Aging.

(7) Denial of an application for designation as an Area Agency on Aging may be appealed to the Division for an Administrative Review. Such an appeal must be made in writing and received by the Division within 30 days of the notice of denial. The Division will conduct an Administrative Review and a written decision will be issued by the Division within 30 days of the completion of the Administrative Review.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.210 - 410.300
SDSD 9-1999, f. & cert. ef. 11-1-99
SSD 3-1986, f. & ef. 2-5-86

Or. Admin. R. 411-002-0120 Area Agency on Aging Applicant Requirements

(1) An applicant requesting to replace an existing Area Agency on Aging must clearly establish the need for such a change.

(2) It is the responsibility of the applicant to submit sufficient information and supporting documentation which will allow the Division to make a decision on designation.

(3) Mandatory Functions — All information submitted by the applicant must specifically address mandatory functions required of an Area Agency on Aging. These functions are outlined as follows:

(a) Staffing Functions — An Area Agency on Aging must have a qualified director and an adequate number of qualified staff (including full or part-time bookkeeper and clerical support) to operate the program. The applicant shall submit the following:

(A) Staff plan identifying number and types of positions, position descriptions with minimum qualifications and pay scales;

(B) Draft personnel policy establishing organizational rules, standards, and compliance actions with civil rights laws, affirmative action, and hiring preference policy, and fringe benefit package, if any; and

(b) Planning Functions — An Area Agency is required to develop and administer an Area Plan on aging for a comprehensive and coordinated service delivery system in the Planning and Service area. The applicant shall submit the following documentation:

(A) Detailed statement covering the manner in which the new agency would prepare and administer the Area Plan, and maintain continuity of existing services;

(B) Description of anticipated services;

(C) Time table for preparing and submitting the Area Plan to the Division for review and approval, including one or more public hearings on the proposed plan, conducted within the service delivery area;

(D) A narrative describing how the new agency intends to:

(i) Assess the kinds and levels of services needed by older persons in the area, and how these findings will be integrated into the planning process;

(ii) Develop and publish methods for establishing priorities for services;

(iii) Assure that older persons in the area have reasonably convenient access to information and referral services; and

(iv) Indicate how preference in the delivery of services will be provided to older persons with the greatest social and economic need; i.e., low income, minorities, socially isolated, and persons at risk of institutionalization; and

(E) Include any necessary interagency agreements that affect the operation of the Area Agency on Aging, including an agreement with any Division offices located within the local service delivery area.

(c) Advocacy Functions — An Area Agency on Aging must serve as the advocate and focal point for older persons in the area. The applicant shall explain how the following matters will be accomplished:

(A) Monitoring, evaluating, and commenting on policies, program, hearings, levies, and community actions affecting older persons;

(B) Conduct public hearings on the needs of older persons;

(D) Carry out activities in support of the State-Administered Long-Term Care Ombudsman Program; and

(E) Coordinate planning with other agencies and organizations to promote new or expanded benefits and opportunities for older persons. Type A Area Agencies on Aging will coordinate with the local Multi Service Office in the Planning and Service Area to insure there is coordination of programs administered by each entity.

(d) Fiscal Functions — As recipients of state and federal funds, Area Agencies on Aging must establish adequate financial management systems and comply with acceptable accounting practices and procedures. Specifically, the applicant shall provide the following evidence:

(A) A plan for funding start-up costs;

(B) A detailed first-year budget of projected revenue and expenses;

(C) A general ledger that sets forth accounting of all grant income, in-kind income, program income, other cash income, and related expenses by categorical grant; and

(D) Written financial policies that cover, as a minimum:

(i) Method for allocating direct and indirect expenses to grants; and

(ii) A check approval procedure to provide sufficient control over transactions.

(e) Board Functions — To carry out its overall responsibilities and conduct business, an Area Agency on Aging must have a board of directors (or equivalent policy making body in a governmental entity). In documenting this action, the following shall be submitted for review:

(A) Articles of incorporation, if applicable;

(B) Bylaws, if applicable, which include a description of how members are selected, and terms of service;

(D) Method by which recommendations of the advisory council will be considered in policy and decision-making processes; and

(E) Method of providing opportunities for older persons representing the general public to express their views on matters of policy and program.

(f) Advisory Council Functions — An Advisory Council shall be established to provide a way of obtaining formal opinions and recommendations from the senior population in the area. Toward ensuring that this step will be taken, the applicant shall prepare preliminary materials on the following:

(A) Intended composition of the Advisory Council and time table for making the initial appointments;

(B) Frequency of Advisory Council meetings;

(D) Copy of the bylaws of the Advisory Council as drafted by the applicant agency, specifying roles and functions of the Council.

(g) Basic Service Delivery Requirements — Area Agencies on Aging are required to meet basic service delivery requirements. The applicant must document capability to perform or provide for services, target specific populations, and provide assurances required by the Older Americans Act.

(h) Management Control Functions — An Area Agency on Aging must establish policies and procedures to accomplish program goals. Toward this end, the applicant shall submit a plan explaining the following:

(A) Methods by which the administration of the Area Plan will be coordinated with federal programs in the community that affect older persons;

(B) Procedures for informing older persons of the availability of services under the Area Plan;

(C) Tentative schedule seeking applicants to provide services under the Area Plan and entering into and monitoring contracts to provide these services. When it is necessary for the Area Agency to provide any of the services directly to assure an adequate level, it must be documented that no adequate contract provider is available;

(D) Intention to contract with an independent auditor to conduct an annual financial and compliance audit;

(E) The Area Agency on Aging must assure that any contractual providers also have an annual audit if required by federal law or rule; and

(F) How local resources (cash and in-kind) will be developed to support program activities.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.210 - 410.300
SDSD 9-1999, f. & cert. ef. 11-1-99

Or. Admin. R. 411-002-0130 Designation of a Type B1 Area Agency on Aging

(1) A designated Type B1 Area Agency on Aging shall meet the requirements of OAR 411-002-0110.

(2) Notwithstanding OAR 411-002-0110(4), a designated Type B1 Area Agency on Aging shall be:

(a) An office or agency of a unit of general purpose local government which is designated by the Chief elected official of the unit to serve as an Area Agency; or

(3) Designation as any category of Type B1 area agency on aging requires written notice to the Division at least six months prior to the proposed implementation of change of status. The Division will notify the Governor’s Commission on Senior Services and the Oregon Disabilities Commission.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.210 - 410.300
SDSD 9-1999, f. & cert. ef. 11-1-99

Or. Admin. R. 411-002-0140 Type B1 Area Agency on Aging Applicant Requirements

(1) It is the responsibility of the applicant to submit sufficient information and supporting documentation to allow the Division to make a decision on a type B1 designation.

(2) A Type B1 Area Agency on Aging applicant shall meet the requirements of OAR 411-002-0120 and the following additional requirements: Mandatory Functions — An applicant must submit information that specifically addresses the mandatory functions required of a Type B1 Area Agency on Aging. These functions are outlined as follows:

(a) Staffing Functions — A Type B1 area agency on aging must have an adequate number of qualified staff, including case management capability, to operate the Medicaid program for the elderly. Staffing patterns must be clearly identified for personnel who are assigned Medicaid program responsibility. Staffing must adhere to standards established by the Division.

(b) Planning Functions — Type B1 Area Agencies on Aging are required to provide a plan describing how the agency intends to:

(A) Administer the Medicaid programs for the elderly in the PSA and how the Medicaid programs will be integrated into the overall service delivery system; and

(B) Assure that elderly Medicaid recipients in the area have reasonable access to information and services; and

(C) Include any necessary interagency agreements that affect the operation of the B1 Area Agency on Aging. The Type B1 Area Agency on Aging will coordinate with the local Disability Services Office(s) in its area to insure services that affect both the elderly and disabled occur in a timely and effective manner.

(D) Basic Service Delivery Requirements — B1 area agencies on aging are required to meet basic Medicaid service delivery requirements as required by the Division.

(E) Management Control Functions — B1 area agencies on aging must establish policies and procedures to accomplish Medicaid program goals as required by the Division.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.210 - 410.300
SDSD 9-1999, f. & cert. ef. 11-1-99

Or. Admin. R. 411-002-0150 Designation and Requirements of Type B2 Area Agencies on Aging

A Type B2 Area Agency on Aging must meet the requirements of OAR 411-002-0110, 411-002-0120, 411-002-0130 and the following additional requirements: Mandatory Functions — All information submitted by the applicant must specifically address mandatory functions required of a B2 Area Agency on Aging. These functions are outlined as follows:

(1) Staffing Functions — B2 Area Agencies on Aging must have an adequate number of qualified staff, including case management, to operate the program for disabled Medicaid recipients.

(2) Planning Functions — B2 Area Agencies on Aging are required to develop and administer an Area Plan for a comprehensive and coordinated service delivery system in the Planning and Service Area. The applicant shall submit the following documentation:

(a) A plan describing how the new agency intends to:

(A) Assure the kinds and levels of services needed by disabled Medicaid recipients in the area, and how these findings will be integrated into the planning process; and

(B) Assure that disabled Medicaid recipients in the area have reasonable access to information and services; and

(b) Include any necessary interagency agreements that affect the operation of the Area Agency on Aging.

(3) Disability Services Advisory Council Functions — A disability Services Advisory Council will be established to provide a way of obtaining formal opinions and recommendations from the disabled population in the area. Toward ensuring that this step will be taken, the applicant shall prepare preliminary materials on the following:

(a) Intended composition of the Advisory Council and time table for making the initial appointments;

(b) Frequency of Advisory Council meetings;

(d) Copy of the bylaws of the Disability Services Advisory Council specifying roles and functions of the Council.

(4) Basic Delivery Requirements — B2 Area Agencies on Aging are required to meet basic service delivery requirements as required by the Division.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.210 - 410.300
SDSD 9-1999, f. & cert. ef. 11-1-99

Or. Admin. R. 411-002-0155 State Employee Supervision in a Type B1 or Type B2 Contract AAA

General Requirements:

(1) The Department of Human Services (the Department) and the AAA Contracted local government entities, in the best interest of the affected State employees, must collaborate and cooperate in the administration of state human resource policies. Communication regarding changes in the Department of Administrative Services (DAS) and the Department’s human resource policies and procedures relating to State employee supervision as well as communication regarding the day-to-day supervision and management of State employees will be encouraged.

(2) Both parties must comply with externally imposed Employment Relations Board (ERB) decisions, arbitration decisions, Equal Employment Opportunity Commission (EEOC), Workers’ Compensation (WC), Americans with Disabilities Act (ADA), and other settlement decisions or agreements.

(3) The Department will be the sole negotiator for employment related settlements for State employees.

(a) Type B1 or Type B2 Contract AAAs, which contract with the Department of Human Services for services of State employers, are required to manage employees in accordance with the Collective Bargaining Agreement between the SEIU, Local 503, Oregon Public Employees Union and Department of Administrative Services, and the Department.

(A) The Collective Bargaining Agreement, State and Federal laws, the Department of Administrative Services, and Department rules and policies relating to supervision of State employees must take precedent over Type B1 and Type B2 Contract AAA rules, policies or procedures.

(B) The Department must review any county or local government policies that will be applied to State employees to ensure compliances with State, Federal, DAS, and DHS policies for regulations.

(b) Type B1 or Type B2 Contract AAAs will be collaborative and must comply with the Department policies and decisions on matters of recruitment and retention of State employees. The Department is responsible for recruitment of all State employees, represented and management, and must jointly participate in the selection of all State supervisory and managerial employees. The Department maintains the final approval of the selection of State supervisory and managerial employees.

(c) With the exception of the State Program Managers (see section (f)), all State employees must be managed, directed, supervised, and evaluated by State managers. The term supervision includes hiring, firing, disciplining, and setting performance expectations. State management employees must supervise only State employees.

(d) State employees working in a Type B1 or Type B2 Contract AAA are not considered employees of the AAA and are not entitled to any benefits from the AAA employee benefit packages. This includes vacation, holiday and sick leave, other leaves with pay, medical and dental coverage, life and disability insurance, overtime, Social Security, workers’ compensation, unemployment compensation, and retirement funding. State employee benefit packages are determined by the Collective Bargaining Agreement, as referred to in (a) of this rule.

(e) State managers and State represented employees in a Type B1 or Type B2 Contract AAA are required to attend applicable Department program and management training and designated curriculum pertinent to the individual position. Such training is available to the local government Contract AAA Director.

(f) The State Program Manager in a Type B1 or Type B2 Contract AAA will report directly to both the AAA Director and the designated Field Services Manager in the Department as follows:

(A) The Department must sign as the reviewer for the performance appraisal of the Program Manager and direct subordinates. The Contract AAA Director must seek input from the designated Field Services Manager in the Department when preparing the State Program Manager’s performance evaluation.

(B) The Contract AAA Director will prepare the State Program Manager’s evaluation. Prior to discussion with the State Program Manager, the Contract AAA Director will have the Field Services Manager as reviewer. By signing as reviewer, the Field Services Manager concurs with the content of the performance appraisal. A performance appraisal will not be valid without both the Field Services Manager’s signature and the Contract AAA Director’s signature. If there is disagreement and consensus cannot be reached, the Assistant Director for Seniors and People with Disabilities at the Department will make a final determination on the content of the performance appraisal. The evaluation must reflect both the Contract AAA Director’s and the Field Services Manager’s assessment of the Program Manager’s performance.

(C) The State Program Manager must seek and incorporate input from both the Field Services Manager and the Contract AAA Director when preparing the performance evaluations of subordinate staff managers/supervisors. The Contract AAA Director and the Field Services Manager must both review the evaluation and both sign as reviewer.

(g) The Department has final approval for all personnel actions taken related to State employees.

(A) The Department is the appointing authority and has final approval for all personnel recommendations regarding State employees for the Type B1 or Type B2 Contract AAA. Approval will be granted when the Type B1 or Type B2 Contract AAA personnel recommendations are in compliance with all applicable statutes, rules, agency or department agreements and policies.

(B) The Type B1 or B2 Contract AAA is to use only Department issued forms in conjunction with Department human resource policies for all administrative business with State employees.

(h) All State employees working in a Type B1 or Type B2 Contract AAA are prohibited from participating professionally in a case involving a relative connected by blood relation, marriage, adoption, or part of an extended family. State employees are responsible for notifying the State Program Manager if a relative is receiving Medicaid, OAA, and/or OPI services from the Contract AAA. The State employee’s Program Manager in such a situation will assure that the case is assigned to another employee, in another office if possible, who is not a relative and who will not be unduly influenced by the State employee who is a relative. The State Program Manager must provide the Department’s Human Resource unit with a written statement that outlines the safeguards put in place to assure no undue influence will be asserted by the affected employee. The Department’s Human Resource unit will be the final decision maker as to whether the safeguards are sufficient.

(i) The Contract AAA Director and the Field Services Manager or designee must participate jointly in the selection of the State Program Manager.

(A) The Department maintains the final approval of the selection of the State Program Manager.

(B) The Contract AAA Director will be the State Program Manager’s direct-report supervisor.

(C) The State Program Manager is responsible for ensuring the Contract AAA complies with all state program and administrative policy rules and required procedures. It is the responsibility of the State Program Manager to first advise the Contract AAA Director and then the Field Services Manager if the State Program Manager believes he or she is being given work directions that are in violation of such policy or rules and required procedures. If the Field Services Manager and the Contract AAA Director cannot resolve the conflict, it will be referred to the Assistant Director for Seniors and People with Disabilities at the Department for a final determination as to which specific state policy interpretation will apply to the present situation.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.210 - 410.300
SPD 7-2005, f. 6-1-05, cert. ef. 6-6-05

Or. Admin. R. 411-002-0160 Changing from a Type A or Type B1 AAA to a Type B2 AAA

(1) Type A or Type B1 Area Agencies on Aging may request to change their model of service delivery to a Type B2 Area Agency on Aging. The process for requesting the change is as follows:

(a) The AAA notifies the Division in writing of its interest in changing to a Type B2 AAA.

(b) The Division will inform the Governor’s Commission on Senior Services, the Oregon Disabilities Commission and the local Disability Services Advisory Council and Senior Advisory Council and provide opportunity for local input.

(c) The AAA will provide notice to affected populations and constituencies at the local level of its intent to pursue a Type B2 model of service delivery.

(d) The AAA will involve affected stakeholders in the development of a process that includes identifying any issues of concern, a process to address these concerns, and the development of a service delivery plan.

(e) The AAA will hold public hearings within the local area during the planning process to receive comments and recommendations on the issues of concern and the service plan.

(f) The Senior Advisory Council and Disability Services Advisory Council will certify in writing that they have been involved in developing the plan.

(g) Once the plan has been approved by the Division, the operating level (office, division, or department of local jurisdiction) of the AAA will amend its name to reflect the inclusion of services to people with disabilities.

(2) If the request for a change to an Area Agency on Aging designation is denied by the Division, the Area Agency on Aging may appeal the decision by following the procedures outlined in OAR 411-002-0110(7).

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.210 - 410.300
SDSD 9-1999, f. & cert. ef. 11-1-99

Or. Admin. R. 411-002-0170 Withdrawal of Area Agency on Aging Designation

(1) In carrying out provisions of the Older Americans Act and ORS 410.100, the Division must withdraw the agency designation whenever it, after reasonable notice and opportunity for an Administrative Review and efforts at problem resolution have been exhausted, finds that:

(a) An area agency does not meet the requirements of 45 CFR 1321; or

(b) There is evidence of non-compliance with provisions of the Area Plan contract.

(2) If the Division withdraws an Area Agency’s designation under section (1) of this rule, it shall:

(a) Provide a plan for the continuity of services in the affected Planning and Service Area; and

(b) Designate a new Area Agency in the Planning and Service Area in a timely manner.

(3) After its final decision to withdraw designation of an Area Agency and if necessary to ensure continuity of services in a Planning and Service Area, the Division may, for a period up to 180 days, and with approval of the Commissioner on Aging, an added 180 days:

(a) Perform the responsibilities of the Area Agency; or

(b) Assign the responsibilities of the Area Agency to another agency in the Planning and Service Area.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.210 - 410.300
SDSD 9-1999, f. & cert. ef. 11-1-99, Renumbered from 411-002-0115
SSD 3-1986, f. & ef. 2-5-86

Or. Admin. R. 411-002-0175 Methodology To Determine Budget Levels for Type B Area Agencies on Aging That Have Elected To Have Employment Transfer

(1) Definitions:

(a) A “Type B Transfer AAA” means a Type B Area Agency on Aging that has elected to have employees transferred to employment by the Area Agency by transfer agreement.

(b) A “Title XIX funded position” means a position that is funded, in part, by Federal funds through Title XIX of the Social Security Act.

(c) “SPD Allocated Positions” means the position categories allocated to SPD field offices. These are the categories of positions to be included for the Equity comparison.

(d) “Annual OPE” means the benefit rate as calculated by DHS. The resulting rate is used to calculate the amount of OPE per type of position.

(e) “Indirect Cost Rate” means the percentage rate used to calculate costs allocated to Type B Transfer AAA offices for indirect costs, including State Government Service Charges and Infrastructure Charges. An established indirect cost rate will not be amended in the middle of the biennium. The initial indirect cost rate is set at 17.78% of the sum of Salary and OPE expenses. The indirect cost rate will be re-based to be effective the first day of the first biennium after the Department of Administrative Services (DAS) changes rates that it publishes in its Price List.

(2) Each Type B Transfer AAA shall provide an updated staff report to DHS not later than January 31 each year. The Type B Transfer AAA shall provide the information that DHS requests in the form that DHS prescribes.

(3) The following steps will be used to calculate the annual budget for the Type B Transfer AAAs:

(a) The updated staff report will be sorted to separate Title XIX funded positions from others. Positions that are not Title XIX funded are not included in the calculation.

(b) SPD will publish a list of Title XIX funded job categories not later than January 15 each year.

(d) Average step in the salary range and average salary are calculated for each job category.

(e) Management staffing will be added in the same ratio and at the same salary ranges that DHS would staff an SPD field office.

(f) Each Type B Transfer AAA will be afforded an opportunity to review the information derived in steps (a)–(d) above. Revisions may be made to the information as a result of that review.

(g) Reviewed information from steps (a)–(e) will be used to determine calculate average step in the salary range for each job category for each Type B Transfer AAA.

(h) An adjustment is made to equate the number of salary steps in the Type B Transfer AAA salary range for each job category to the DHS salary range for each job category.

(i) The adjusted average step in the salary range is used to determine the average DHS salary for each job category.

(j) The monthly salary is multiplied by 12 and converted to an average annual salary for each job category.

(k) The Annual OPE rate is multiplied by the average annual salary for each job category to produce the average annual OPE for each job category.

(l) The sum of the average annual salary and the average annual OPE for each job category is multiplied by the number of FTE determined in steps (a)–(e) above. The product is the Total Annual Salary Plus OPE to be used in determination of the budget level.

(m) The Total Annual Salary Plus OPE is multiplied by the Indirect Cost Rate to determine aggregate annual indirect costs.

(n) The DHS standard Services and Supplies costs for field office employees is multiplied by the number of FTE to determine aggregate Services and Supplies (S&S) costs.

(o) The total annual Type B Transfer AAA annual budget level is the sum of (Total Annual Salay Plus OPE) + (aggregate annual indirect costs) + (aggregate S&S costs).

(4) The total annual Type B Transfer AAA annual budget level determined above will be reduced by 5%.

(5) DHS will use the methodology outlined in Sections (3) and (4) above when determining funding levels to recommend to the Governor for the Type B Transfer AAAs.

(6) Notwithstanding Section (5), in determining the funding levels of Type B Transfer AAAs to recommend to the Governor for the 2005-2007 biennium, DHS shall reduce the total annual Type B Transfer AAA annual budget level by 8%.

History

Statutory/Other Authority: ORS 410070
Statutes/Other Implemented: ORS 410.210 - 410.300
SPD 37-2004, f. & cert. ef. 12-30-04

Division 3 HOME AND COMMUNITY-BASED SERVICES CAREGIVER QUALIFICATIONS AND REGISTRY

Or. Admin. R. 411-003-0000 Purpose

The purpose of these rules is to establish:

(1) A framework for caregiver certification based on existing rules regarding minimum qualifications and training requirements for caregivers to populate a publicly available registry that displays caregiver information, including qualifications and completion of trainings that have been verified for each caregiver.

(2) Criteria for certification of caregivers such that certification status can be displayed in the Registry.

(3) Requirements and timelines for which employers of caregivers must submit verification of training completion to the Department.

(4) Requirements for administration of the Registry by the Department.

(5) A process for individuals to decline to participate in the Registry and correct any errors in their records.

(6) A process to remove individuals who do not qualify for inclusion in the Registry.

History

Statutory/Other Authority: ORS 410.598, 410.600, 443.001, 443.305, 443.400 & 443.886
Statutes/Other Implemented: ORS 410.598, 410.600, 443.001, 443.305, 443.400 & 443.886
APD 16-2026, adopt filed 06/30/2026, effective 07/01/2026

Or. Admin. R. 411-003-0005 Definitions

For the purpose of these rules, the following definitions apply:

(1) “Certification” means that the individuals have completed and passed background checks, successfully completed all training requirements that are relevant to the position and to the health and safety of workers and individuals receiving care, including but not limited to requirements adopted by the Department under ORS 410.598 and 443.011.

(2) “Home or community-based services caregiver” or “caregiver” means:

(a) A home care worker;

(b) An individual who provides in-home care services as an employee of or under an arrangement or contract with an in-home care agency; or

(c) An individual who is a direct care staff person or a universal worker in a residential care facility, as defined in OAR 411-054-0005, including an assisted living facility, a residential care facility, an assisted living facility with a memory care endorsement, or a residential care facility with a memory care endorsement as defined in OAR 411-057-0110.

(3) “Department” means the Oregon Department of Human Services.

(4) “Employer” means:

(a) An in-home care agency as defined in ORS 443.305 that hires, enters into an arrangement with, or contracts with a caregiver to provide in-home care services.

(b) The Oregon Home Care Commission (OHCC), which serves as the employer of record for collective bargaining for caregivers who are home care workers as defined in ORS 410.600.

(c) An owner or operator of a residential care facility or assisted living facility as defined in OAR 411-054-0005, that includes those with a memory care endorsement, that employs caregivers who are direct care staff or universal workers, including a facility with a memory care endorsement as specified by OAR 411-057-0110.

(5) “Home care worker” means the term in ORS 410.600, which is a person:

(a) Who is hired or selected by an elderly person or a person with a physical disability or by a parent or guardian of an elderly person or a person with a physical disability;

(b) Who receives moneys from the Department for the purpose of providing care to the elderly person or the person with a physical disability;

(d) Who provides hourly services; or

(e) Who provides home care services to private payers through the program described in ORS 410.605.

(6) "In-home care agency” has the meaning given that term in ORS 443.305, which is an agency primarily engaged in providing in-home care services for compensation to an individual in that individual’s place of residence licensed by the Oregon Health Authority. It does not include a home health agency as defined in ORS 443.014.

(7) “In-home care agency services” has the meaning given that term in ORS 443.305, which is personal care services furnished by an in-home care agency, or an individual under an arrangement or contract with an in-home care agency, that are necessary to assist an individual in meeting the individual’s daily needs. It does not include curative or rehabilitative services.

(8) “Registry” means a centralized repository of caregivers operated by the Oregon Department of Human Services and which makes certain information available to the public, including caregiver name, county of caregiver residence, caregiver certification status, and caregiver criminal records check status through a searchable database.

(9) “Substantiated for abuse” has the meaning as defined in chapter 411, division 20.

History

Statutory/Other Authority: ORS 410.598, 410.600, 443.001, 443.004, 443.006, 443.305, 443.400 & 443.886
Statutes/Other Implemented: ORS 410.598, 410.600, 443.001, 443.004, 443.006, 443.305, 443.400 & 443.886
APD 16-2026, adopt filed 06/30/2026, effective 07/01/2026

Or. Admin. R. 411-003-0010 Caregiver Qualifications for Certification

(1) To be eligible for initial certification on the Department’s registry as a home or community-based caregiver, caregivers must:

(a) Be 18 years of age or older;

(b) Not be excluded from participation in federal health care programs as specified under OAR 407-007-0279;

(c) Have an approved background check from the Department’s Background Check Unit (BCU) in accordance with ORS 443.004; and

(d) Complete the minimum training requirements specified for each caregiver type as follows:

(A) A home care worker must:

(i) Complete mandated core training within the specified time period and pass mandated orientation and training competency evaluations specified in OAR 418-020-0035; and

(ii) Meet provider enrollment standards for home care workers as specified in OAR chapter 411, division 31.

(B) A caregiver who is an employee of an in-home care agency must:

(i) Complete orientation as specified in OAR 333-536-0070;

(ii) Complete training requirements as specified in OAR 333-536-0070 including but not limited to a minimum of 8 hours of training and competency evaluation and documentation by the agency administrator or the administrator’s designee; and

(iii) Undergo a minimum of 4 hours of non-injectable medication training if the caregiver will administer medication, as specified in OAR 333-536-0070.

(iv) If a caregiver has proof of a current Oregon health-care related license or certificate, they are exempt from the requirements in (B)(ii) – (B)(iii).

(C) A caregiver who serves as direct care staff or universal worker in a Assisted Living or Residential Care Facility must meet the requirements specified in OAR 411-054-0070 including but not limited to completing orientation, completing a minimum of 8 hours of required training, and successfully completing required competency evaluations.

(2) To maintain eligibility for certification on the Department’s registry as a home or community-based caregiver, caregivers must:

(a) Complete required criminal records check and maintain an approved status in accordance with OAR 407-007-0600 to 407-007-0640.

(b) Complete required continuing education for each caregiver type as defined by the applicable administrative rules:

(A) A home care worker as specified in OAR 418-020-0035;

(B) A caregiver who is an employee of an in-home care agency as specified in OAR 333-536-0070; and

(3) To be eligible for an additional endorsement on the Department’s registry, caregivers must complete the additional training requirements specified for each endorsement type as follows:

(a) A caregiver who is a home care worker may obtain a Professional Development Certification by completing the requirements in OAR 418-020-0030 including but not limited to having an active unrestricted provider number, current Adult CPR and First Aid Certification, and submitting an application that is accepted by the Oregon Home Care Commission.

(b) A caregiver who is a home care worker may obtain Enhanced Home Care Worker Certification by completing the requirements in OAR 418-020-0030 including but not limited to having an active unrestricted provider number, current CPR and First Aid Certification, submitting an application that is accepted by the Oregon Home Care Commission, and completing enhanced training courses after application approval.

(c) A caregiver who is a home care worker may obtain a Ventilator Dependent Quadriplegia Certification by completing the requirements in OAR 418-020-0030 including but not limited to having an active unrestricted provider number, submitting an application that is accepted by the Oregon Home Care Commission, and completing all ventilator quadriplegia dependent certification coursework.

(4) To maintain an endorsement on the Registry:

(a) To renew a Professional Development Certification a caregiver who is a home care worker must complete the requirements specified in OAR 418-020-0030 between the 13th and 24th month of the certification period.

(b) An Enhanced Home Care Worker must maintain an active home care worker credential, maintain current Adult CPR and First Aid certification, and complete required trainings specified in OAR 418-020-0030 by the end of the 24th month of Enhanced home care worker certification period.

(c) To maintain a Ventilator Dependent Quadriplegia certification, a caregiver must maintain an active home care worker credential, maintain current Adult CPR and First Aid certification, and complete required ventilator dependent quadriplegia certification courses specified in OAR 418-020-0030 between the 13th and 24th month of the certification period.

History

Statutory/Other Authority: ORS 410.598, 410.600, 443.001, 443.305, 443.400 & 443.886
Statutes/Other Implemented: ORS 410.598, 410.600, 443.001, 443.305, 443.400 & 443.886
APD 16-2026, adopt filed 06/30/2026, effective 07/01/2026

Or. Admin. R. 411-003-0020 Training Verification Requirements

(1) Employers are required to provide verification that caregivers have completed all components required for each caregiver in the form and method specified by the Department, including but not limited to:

(a) Type of training as required by their specific administrative rule.

(b) Certification requirements that have been met through training.

(d) Employer attestation of completed training.

(e) End date or expiration date of the training credential.

(f) End date or expiration date of the caregiver’s background check status.

(2) Employers are required to submit verification of training as follows:

(a) For initial orientation and training, by the next nearest quarterly report after training completion.

(b) Providers will need to submit verification to the Department at least quarterly for training or continuing education completed during the quarter.

(c) Employers are responsible for verifying certification of caregivers whom they employ who have completed training in another setting using the application and process specified by the Department,

(d) For employees with multiple employers, each employer must submit the required information to the Department.

(3) The Employer must notify the Department of any caregivers whose credentials have been suspended or revoked within 14 calendar days of the caregiver’s suspension or revocation. If the Employer misses the 14 calendar days window, the employer must notify the Department immediately upon discovery of the missed notification.

(4) The Employer must notify the Department within 3 business days of any employee who is substantiated for abuse. The Department may remove the individual from the Registry at the discretion of the Department based on the severity of the abuse.

(5) If an employee who is substantiated for abuse has left employment, the Department may remove the individual from the Registry at the discretion of the Department based on the severity of the abuse.

(6) If the employer is unable to submit the request/data as required in these administrative rules in a timely fashion, they must notify the Department with an estimated submission time..

(7) An employer must notify the Department upon a Change of Ownership and submit the current caregiver information within 14 days of the change.

History

Statutory/Other Authority: ORS 410.598, 410.600, 443.001, 443.305, 443.400 & 443.886
Statutes/Other Implemented: ORS 410.598, 410.600, 443.001, 443.305, 443.400 & 443.886
APD 16-2026, adopt filed 06/30/2026, effective 07/01/2026

Or. Admin. R. 411-003-0030 Registry Requirements

(1) Employers will submit the following information to the Department at least quarterly:

(a) The legal name of the caregiver with an optional field for the caregiver’s preferred name;

(b) The county and, if applicable, the city where the caregiver resides;

(d) Criminal records check status of the caregiver.

(2) The Department will ensure that the Registry includes:

(a) Clear delineation of which certifications the caregiver holds.

(b) One or more links to information regarding training requirements for the certification of each type of caregiver;

(d) Any other guidance or resources that the Department deems necessary to help individuals use the Registry.

(e) A notice that caregivers may opt out of the Registry and therefore caregivers may not be listed.

(f) Disclaimer language that the information is updated per these rules and may not be completely accurate and that employer specific trainings may not be listed.

(3) The Department will develop a form for caregivers who wish to decline to participate in the Registry.

(4) Caregivers may decline to participate in the Registry by either:

(a) Notifying their employer before their employer submits the information to the Department using the Department’s required form, which will be kept by the employer; or

(b) Notifying the Department through a required form that they should be removed from the Registry once the caregiver has been added to the Registry. The Department will retain the form and notify the employer. The employer will not submit that individual’s information in the quarterly submissions.

(5) Caregivers may request updates to the Registry by requesting through their employer and providing the necessary documentation, due to:

(a) Change in caregiver county or city of residence.

(b) Change of caregiver name.

(c) Incomplete, inaccurate or changes to information regarding completed training, certification, or additional endorsements.

(6) Employers are responsible for verifying and submitting all caregiver training, certification, residence, and eligibility information required for inclusion in the Registry at least quarterly. Workers may not self-report any information for the purpose of meeting employer verification or reporting obligations.

(7) Caregivers may notify the Department that they wish to access the worker correction and dispute resolution process. This is distinct from employer reporting duties, through which caregivers may request correction of inaccurate information displayed in the Registry. Any forms or processes established by the Department must be used solely for worker-initiated corrections and will not substitute for employer reporting requirements.

(8) The Department will notify Employers within 14 calendar days of any notifications from caregivers of their request to access the correction and dispute resolution process.

History

Statutory/Other Authority: ORS 410.598, 410.600, 443.001, 443.305, 443.400 & 443.886
Statutes/Other Implemented: ORS 410.598, 410.600, 443.001, 443.305, 443.400 & 443.886
APD 16-2026, adopt filed 06/30/2026, effective 07/01/2026

Or. Admin. R. 411-003-0040 Temporary rule language in effect until 12/27/2026. Enforcement

Employers who fail to comply with these administrative rules will be referred to their licensing authority for review and corrective action.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 441.705 - 441.745, 443.400 - 443.455 & 443.991
APD 17-2026, temporary adopt filed 06/30/2026, effective 07/01/2026 through 12/27/2026

Division 4 HOME AND COMMUNITY-BASED SERVICES AND SETTINGS AND PERSON-CENTERED SERVICE PLANNING

Or. Admin. R. 411-004-0000 Statement of Purpose

The rules in OAR chapter 411, division 4 provide a foundation of standards to support the network of Medicaid-funded and private pay residential and non-residential Home and Community-Based Services (HCBS), Home and Community-Based (HCB) settings, and person-centered service planning for individuals receiving HCBS in Oregon. Additional standards are set forth in OAR chapters 309 and 411.

(1) These rules are consistent with the missions and goals of the Department of Human Services (DHS) and the Oregon Health Authority (OHA) to help people achieve optimum physical, mental, and social well-being and independence.

(2) These rules ensure that individuals receive HCBS in settings that are integrated in and support the same degree of access to the greater community as people not receiving HCBS, including opportunities for individuals enrolled in or utilizing HCBS to:

(a) Seek employment and work in competitive integrated employment settings;

(b) Engage in greater community life;

(d) Receive services in the greater community.

(3) These rules implement the regulations and expectations of the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS) in the following areas:

(a) HCBS and HCB settings authorized under the following Medicaid authorities:

(A) 1915(c) — HCBS Waivers;

(B) 1915(i) — State Plan HCBS; or

(b) HCBS and HCB settings delivered through the following program areas:

(A) DHS, Aging and People with Disabilities;

(B) DHS, Office of Developmental Disabilities Services; and

(c) Programs, services, or settings designated as HCB and licensed, certified or endorsed by, and receiving oversight from, DHS, or OHA.

(d) Alternative resources specifically authorized as HCB by DHS or OHA.

(e) Person-centered service plans for individuals receiving HCBS. Person-centered service plans provide the written details of the supports, desired outcomes, activities, and resources required for individuals to achieve and maintain personal goals and health and safety.

History

Statutory/Other Authority: ORS 409.050, 413.042 & 413.085
Statutes/Other Implemented: ORS 409.050, 413.042 & 413.085
APD 15-2017, f. 6-26-17, cert. ef. 7-1-17
APD 23-2015, f. 12-15-15, cert. ef. 1-1-16

Or. Admin. R. 411-004-0010 Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 4:

(1) "CMS" means the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services.

(2) "Competitive Integrated Employment" means work that is performed on a full-time or part-time basis (including self-employment):

(a) For which an individual:

(A) Is compensated at a rate that:

(i) Is not less than the higher of the rate specified in federal, state, or local minimum wage law, and also is not less than the customary rate paid by the employer for the same or similar work performed by other employees who are not individuals with disabilities, and who are similarly situated in similar occupations by the same employer and who have similar training, experience, and skills; or

(ii) In the case of an individual who is self-employed, yields an income that is comparable to the income received by other individuals who are not individuals with disabilities, and who are self-employed in similar occupations or on similar tasks and who have similar training, experience, and skills.

(B) Is eligible for the level of benefits provided to other employees.

(b) That is at a location where the employee interacts with other persons who are not individuals with disabilities (not including supervisory personnel or individuals who are providing services to such employee) to the same extent that individuals who are not individuals with disabilities and who are in comparable positions interact with other persons.

(c) That, as appropriate, presents opportunities for advancement that are similar to those for other employees who are not individuals with disabilities and who have similar positions.

(3) "Designated Representative" means:

(a) Any adult, such as a parent, family member, guardian, advocate, or other person, who is:

(A) Chosen by the individual or, as applicable, the legal representative of the individual;

(B) Not a paid provider for the individual; and

(C) Authorized by the individual or, as applicable, the legal representative of the individual to serve as the representative of the individual or, as applicable, the legal representative in connection with the provision of funded supports.

(D) The power to act as a designated representative is valid until the individual modifies the authorization or notifies the agency that the designated representative is no longer authorized to act on his or her behalf.

(b) An individual or the legal representative of the individual is not required to appoint a designated representative.

(4) "DHS" means the Department of Human Services.

(5) "HCB" means "Home and Community-Based."

(6) "HCBS" means "Home and Community-Based Services." HCBS are services provided in the home or community of an individual.

(a) HCBS are authorized under the following Medicaid authorities:

(A) 1915(c) — HCBS Waivers;

(B) 1915(i) — State Plan HCBS; or

(b) HCBS are delivered through the following program areas:

(A) DHS, Aging and People with Disabilities;

(B) DHS, Office of Developmental Disabilities Services; and

(7) "HCB Setting" means a physical location meeting the qualities of OAR 411-004-0020 where an individual receives HCBS.

(8) "Heightened Scrutiny" means the process set out in OAR 411-004-0020(7)(e) that DHS or OHA uses when determining if a setting meets the criteria to be considered a HCB setting.

(9) "Individual" means a person enrolled in or utilizing HCBS.

(10) "Individually-Based Limitation" means any limitation to the qualities outlined in OAR 411-004-0020(1)(d) and (2)(d) to (2)(j), due to health and safety risks. An individually-based limitation is based on specific assessed need and only implemented with the informed consent of the individual or, as applicable, the legal representative of the individual, as described in OAR 411-004-0040.

(11) "Informed Consent" means:

(a) Options, risks, and benefits have been explained to an individual and, as applicable, the legal representative of the individual, in a manner that the individual and, as applicable, the legal representative, comprehends; and

(b) The individual and, as applicable, the legal representative of the individual, consents to a person-centered service plan of action, including any individually-based limitations to the rules, prior to implementation of the initial or updated person-centered service plan or any individually-based limitation.

(12) "Legal Representative" means a person who has the legal authority to act for an individual. The legal representative only has authority to act within the scope and limits of his or her authority as designated by the court or other agreement. Legal representatives acting outside of his or her authority or scope must meet the definition of designated representative.

(a) For an individual under the age of 18, the parent, unless a court appoints another person or agency to act as the guardian.

(b) For an individual 18 years of age or older, a guardian appointed by a court order or an agent legally designated as the health care representative, where the court order or the written designation provide authority for the appointed or designated person to make the decisions indicated where the term “legal representative” is used in this rule.

(13) "OHA" means the Oregon Health Authority.

(14) "Person-Centered Service Plan" means, for Medicaid eligible individuals, the written details of the supports, desired outcomes, activities, and resources required for an individual to achieve and maintain personal goals, health, and safety as described in OAR 411-004-0030 as documented by the person-centered service plan coordinator.

(15) "Person-Centered Service Plan Coordinator" means case managers, service coordinators, personal agents, and other people designated by DHS or OHA to provide case management services or person-centered service planning for and with individuals.

(16) "Provider" means any person or entity providing HCBS.

(17) "Provider Owned, Controlled, or Operated Residential Setting" means:

(a) The residential provider is responsible for delivering HCBS to individuals in the setting and the provider:

(A) Owns the setting;

(B) Leases or co-leases the residential setting; or

(C) If the provider has a direct or indirect financial relationship with the property owner, the setting is presumed to be provider controlled or operated.

(b) A setting is not provider-owned, controlled, or operated if the individual leases directly from a third party that has no direct or indirect financial relationship with the provider.

(c) When an individual receives services in the home of a family member, the home is not considered provider-owned, controlled, or operated.

(18) "Residency Agreement" means the written, legally enforceable agreement between a residential provider and an individual or the legal or designated representative of the individual, when the individual is receiving HCBS in a provider owned, controlled, or operated residential setting. The Residency Agreement identifies the rights and responsibilities of the individual and the residential provider. The Residency Agreement provides the individual protection from eviction substantially equivalent to landlord-tenant laws.

(19) "Restraint" means:

(a) Physical restraints are any manual method or physical or mechanical device, material, or equipment attached to or adjacent to the individual’s body that the individual cannot remove easily, which restricts freedom of movement or normal access of the individual to the individual’s body. Any manual method includes physically restraining someone by manually holding someone in place.

(b) Chemical restraints are any substance or drug used for the purpose of discipline or convenience that has the effect of restricting the individual’s freedom of movement or behavior and is not used to treat the individual’s medical or psychiatric condition.

(20) "Room and Board" means compensation for the provision of meals and a place to sleep.

(21) "These Rules" mean the rules in OAR chapter 411, division 4.

(22) "Unit" means the personal space and bedroom of an individual receiving HCBS in a provider owned, controlled, or operated residential setting, as agreed to in the Residency Agreement.

History

Statutory/Other Authority: ORS 409.050, 413.042, 413.085 & 443.738
Statutes/Other Implemented: ORS 409.050, 413.042, 413.085 & 443.738
APD 15-2017, f. 6-26-17, cert. ef. 7-1-17
APD 23-2015, f. 12-15-15, cert. ef. 1-1-16

Or. Admin. R. 411-004-0020 Home and Community-Based Services and Settings

(1) Residential and non-residential HCB settings must have all of the following qualities:

(a) The setting is integrated in and supports the same degree of access to the greater community as people not receiving HCBS, including opportunities for individuals enrolled in or utilizing HCBS to:

(A) Seek employment and work in competitive integrated employment settings;

(B) Engage in greater community life;

(D) Receive services in the greater community.

(b) The residential or non-residential setting is selected by an individual or, as applicable, the legal or designated representative of the individual, from among available setting options, including non-disability specific settings and an option for a private unit in a residential setting. The setting options must be:

(A) Identified and documented in the person-centered service plan for the individual.

(B) Based on the needs and preferences of the individual.

(D) For employment and non-residential day services, a non-disability specific setting option must be presented and documented in the person-centered service plan.

(d) The setting ensures the individual the right to freedom from restraints, except in accordance with the standards set forth in ORS 443.739, OAR chapters 309 and 411, 1915(c) HCBS Waivers, 1915(i) State Plan HCBS, or 1915(k) Community First Choice (K State Plan Option). When the right to freedom from restraints must be limited due to a threat to the health and safety of an individual or others, an individually-based limitation as described in OAR 411-004-0040 must apply in any residential or non-residential setting.

(e) The setting optimizes, but does not regiment, individual initiative, autonomy, self-direction, and independence in making life choices including, but not limited to: daily activities, physical environment, and with whom the individual chooses to interact.

(f) The setting facilitates individual choice regarding services and supports, and who provides the services and supports.

(2) Provider owned, controlled, or operated residential settings must have all of the following qualities:

(a) The setting meets all the qualities in section (1) of this rule.

(b) The setting is physically accessible to an individual.

(c) The unit is a specific physical place that may be owned, rented, or occupied by an individual under a legally enforceable Residency Agreement. The individual has, at a minimum, the same responsibilities and protections from an eviction that a tenant has under the landlord tenant law of the state, county, city, or other designated entity. For a setting in which landlord tenant laws do not apply, the Residency Agreement must provide protections for the individual and address eviction and appeal processes. The eviction and appeal processes must be substantially equivalent to the processes provided under landlord tenant laws.

(d) Each individual has privacy in his or her own unit.

(e) Units must have entrance doors lockable by the individual, with the individual and only appropriate staff having a key to access the unit.

(f) Individuals sharing units must have a choice of roommates.

(g) Individuals must have the freedom to decorate and furnish his or her own unit as agreed to within the Residency Agreement.

(h) Each individual may have visitors of his or her choosing at any time.

(i) Each individual has the freedom and support to control his or her own schedule and activities.

(j) Each individual has the freedom and support to have access to food at any time.

(3) The qualities of an HCB setting described in sections (1)(d) and (2)(d) to (2)(j) of this rule apply to children under the age of 18, enrolled in or utilizing HCBS, and residing in provider owned, controlled, or operated residential settings, in the context of addressing any limitations beyond what are typical health and safety precautions or discretions utilized for children of the same age without disabilities. Health and safety precautions or discretions utilized for children under the age of 18, enrolled in or utilizing HCBS, and residing in provider owned, controlled, or operated residential settings, shall be addressed through a person-centered service planning process and documented in the person-centered service plan for the child. Limitations which deviate from and are more restrictive than what is typical for children of the same age without disabilities, must comply with OAR 411-004-0040.

(4) When conditions under sections (1)(d) and (2)(d) to (2)(j) of this rule may not be met due to threats to the health and safety of the individual or others, the person-centered service plan may apply an individually-based limitation with the consent of the individual or, as applicable, the legal representative of the individual, as described in OAR 411-004-0040.

(5) Providers initially licensed, certified, or endorsed by DHS or OHA on or after January 1, 2016 must meet the requirements in this rule prior to being licensed, certified, or endorsed.

(6) Providers licensed, certified, or endorsed prior to January 1, 2016 must make measurable progress toward compliance with these rules and be in full compliance with these rules by September 1, 2018. The Department will not issue sanctions and penalties on the rules in OAR chapter 411, division 004 until September 1, 2018 if a provider is making measureable progress towards compliance.

(7) HCB settings do not include the following:

(a) A nursing facility.

(b) An institution as outlined in ORS 426.010.

(d) A hospital providing long-term care services.

(e) Any other setting that has the qualities of an institution.

(A) The following settings are presumed to have the qualities of an institution:

(i) A setting that is located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment.

(ii) A setting that is located in a building on the grounds of, or immediately adjacent to, a public institution.

(iii) A setting that has the effect of isolating individuals receiving HCBS from the greater community.

(B) In addition to the qualities under subsection (A) above, non-residential settings that isolate individuals receiving HCBS from the greater community and are presumed to have the qualities of an institution also include:

(i) Facility-based prevocational settings that do not, at minimum, provide interaction with the general public.

(ii) Facility or site-based non-residential day service settings that do not, at minimum, facilitate going out into the greater community.

(C) A setting that is presumed to have the qualities of an institution, as described in this section, will be subject to a heightened scrutiny process. If a setting has indicators that lead the State to question their HCBS status, the setting will be given the opportunity to rebut that presumption by submitting evidence of their compliance with these regulations. Based on the evidence, the State may determine that a setting has not overcome the presumption and HCBS funding will not be utilized. If the State determines that a setting has provided adequate evidence to rebut the presumption that it has the qualities of an institution, the State will submit the evidence to CMS after a public comment period. CMS determines, based on information presented by DHS, OHA, or other parties, whether the setting is home and community-based or is institutional in nature. If CMS determines that a setting has not overcome the presumption and is institutional in nature, HCBS funding will not be utilized.

History

Statutory/Other Authority: ORS 409.050, 413.042, 413.085 & 443.738
Statutes/Other Implemented: ORS 409.050, 413.042, 413.085 & 443.738
APD 15-2017, f. 6-26-17, cert. ef. 7-1-17
APD 25-2015, f. 12-28-15, cert. ef. 1-1-16
APD 23-2015, f. 12-15-15, cert. ef. 1-1-16

Or. Admin. R. 411-004-0030 Person-Centered Service Plans

(1) PERSON-CENTERED SERVICE PLANNING PROCESS. A person-centered service plan must be developed through a person-centered service planning process. The person-centered service planning process:

(a) Is driven by the individual;

(b) Includes people chosen by the individual;

(c) Provides necessary information and supports to ensure the individual directs the process to the maximum extent possible and is enabled to make informed choices and decisions;

(d) Is timely, responsive to changing needs, occurs at times and locations convenient to the individual, and is reviewed at least annually;

(e) Reflects the cultural considerations of the individual;

(f) Uses language, format, and presentation methods appropriate for effective communication according to the needs and abilities of the individual and, as applicable, the legal or designated representative of the individual;

(g) Includes strategies for resolving disagreement within the process, including clear conflict of interest guidelines for all planning participants, such as:

(A) Discussing the concerns of the individual and determining acceptable solutions;

(B) Supporting the individual in arranging and conducting a person-centered service planning meeting;

(D) Referring concerns to the Office of the Long-Term Care Ombudsman; or

(E) For Medicaid recipients, following existing, program-specific grievance processes.

(h) Offers choices to the individual regarding the services and supports the individual receives, and from whom, and records the alternative HCB settings that were considered by the individual;

(i) Provides a method for the individual or, as applicable, the legal or designated representative of the individual, to request updates to the person-centered service plan for the individual, as needed;

(j) Is conducted to reflect what is important to the individual to ensure delivery of services in a manner reflecting personal preferences and ensuring health and welfare;

(k) Identifies the strengths and preferences, service and support needs, goals, and desired outcomes of the individual;

(l) Includes any services that are self-directed, if applicable;

(m) Includes, but is not limited to, individually identified goals and preferences related to relationships, greater community participation, employment, income and savings, healthcare and wellness, and education;

(n) Includes risk factors and plans to minimize any identified risk factors; and

(o) Results in a person-centered service plan documented by the person-centered services plan coordinator, signed by the individual or, as applicable, the legal or designated representative of the individual, participants in the person-centered service planning process, and all people and providers responsible for the implementation of the person-centered service plan as described below in section (2)(d) of this rule. The person-centered service plan is distributed to the individual, and, as applicable, the legal or designated representative of the individual, and other people involved in the person-centered service plan as described below in section (2)(d) of this rule.

(2) PERSON-CENTERED SERVICE PLANS.

(a) For individuals receiving Medicaid:

(A) The person-centered service plan coordinator documents the person-centered service plan on behalf of the individual and provides the necessary information and supports to ensure the individual directs the person-centered service planning process to the maximum extent possible.

(B) The person-centered service plan must be developed by the individual and, as applicable, the legal or designated representative of the individual, and the person-centered service plan coordinator. Others may be included only at the invitation of the individual and, as applicable, the legal or designated representative.

(C) To avoid conflict of interest, the person-centered service plan may not be developed by the provider of HCBS for individuals receiving Medicaid. Exceptions may be granted when DHS or OHA has determined that the only willing and qualified entity to provide case management and develop the person-centered service plan in a specific geographic area also provides HCBS.

(b) For private pay individuals, a person-centered service plan will be developed by the individual, or, as applicable, the legal or designated representative of the individual, and others chosen by the individual. Providers may assist private pay individuals in developing person-centered service plans when no alternative resources are available. Private pay individuals are not required to have a written person-centered service plan.

(A) HCBS and setting options based on the needs and preferences of the individual, and for residential settings, the available resources of the individual for room and board.

(B) The HCBS and settings are chosen by the individual and are integrated in, and support full access to, the greater community.

(C) Opportunities to seek employment and work in competitive integrated employment settings for those individuals who desire to work. If the individual wishes to pursue employment, a non-disability specific setting option must be presented and documented in the person-centered service plan.

(D) Opportunities to engage in greater community life, control personal resources, and receive services in the greater community to the same degree of access as people not receiving HCBS.

(E) The strengths and preferences of the individual.

(F) The service and support needs of the individual.

(G) The goals and desired outcomes of the individual.

(H) The providers of services and supports, including unpaid supports provided voluntarily.

(I) Risk factors and measures in place to minimize risk.

(J) Individualized backup plans and strategies, when needed.

(K) People who are important in supporting the individual.

(L) The person responsible for monitoring the person-centered service plan.

(M) Language, format, and presentation methods appropriate for effective communication according to the needs and abilities of the individual receiving services and, as applicable, the legal or designated representative of the individual.

(N) The written informed consent of the individual or, as applicable, the legal or designated representative of the individual.

(O) Signatures of the individual or, as applicable, the legal or designated representative of the individual, participants in the person-centered service planning process, and all people and providers responsible for the implementation of the person-centered service plan as described below in subsection (d) of this section.

(P) Self-directed supports.

(Q) Provisions to prevent unnecessary or inappropriate services and supports.

(d) The individual or, as applicable, the legal or designated representative of the individual, decides on the level of information in the person-centered service plan that is shared with providers. To effectively provide services, providers must have access to the portion of the person-centered service plan that the provider is responsible for implementing.

(e) The person-centered service plan is distributed to the individual and, as applicable, the legal or designated representative of the individual, and other people involved in the person-centered service plan as described above in subsection (d) of this section.

(f) The person-centered service plan must justify and document an individually-based limitation as described in OAR 411-004-0040 when conditions under OAR 411-004-0020(1)(d) and (2)(d) to (2)(j) may not be met due to threats to the health and safety of the individual or others.

(g) The person-centered service plan must be reviewed and revised:

(A) At the request of the individual or, as applicable, the legal or designated representative of the individual;

(B) When the circumstances or needs of the individual change; or

History

Statutory/Other Authority: ORS 409.050, 413.042, 413.085 & 443.738
Statutes/Other Implemented: ORS 409.050, 413.042, 413.085 & 443.738
APD 15-2017, f. 6-26-17, cert. ef. 7-1-17
APD 23-2015, f. 12-15-15, cert. ef. 1-1-16

Or. Admin. R. 411-004-0040 Individually-Based Limitations

This rule will begin being implemented January 1, 2017. The requirements in this rule must be in place no later than June 30, 2020. Individual program rules may require compliance to this rule earlier than June 30, 2020.

(1) When the condition under OAR 411-004-0020(1)(d) may not be met due to a threat to the health and safety of an individual or others, an individually-based limitation process, as described in this rule, must apply in any residential or non-residential setting.

(2) When a condition under OAR 411-004-0020(2)(d) to (2)(j) may not be met due to a threat to the health and safety of an individual or others in a provider owned, controlled, or operated residential setting, an individually-based limitation process, as described in this rule, must apply.

(3) An individually-based limitation must be supported by a specific assessed need and documented in the person-centered service plan by completing and signing a program approved form documenting the consent to the appropriate individually-based limitation. The form identifies and documents, at minimum, all of the following requirements:

(a) The specific and individualized assessed need justifying the individually-based limitation.

(b) The positive interventions and supports used prior to any individually-based limitation.

(d) A clear description of the limitation that is directly proportionate to the specific assessed need.

(e) Regular collection and review of data to measure the ongoing effectiveness of the individually-based limitation.

(f) Established time limits for periodic reviews of the individually-based limitation to determine if the limitation should be terminated or remains necessary. The individually-based limitation must be reviewed at least annually.

(g) The informed consent of the individual or, as applicable, the legal representative of the individual, including any discrepancy between the wishes of the individual and the consent of the legal representative.

(h) An assurance that the interventions and support do not cause harm to the individual.

(i) For restraints, there is a physician or other qualified practitioner order for the use of restraint. Individual licensing authorities may adopt stricter criteria regarding the use of restraints.

(4) Providers are responsible for:

(a) Maintaining a copy of the completed and signed form documenting the consent to the appropriate limitation. The form must be signed by the individual, or, if applicable, the legal representative of the individual.

(b) Regular collection and review of data to measure the ongoing effectiveness of and the continued need for the individually-based limitation.

(c) Requesting a review of the individually-based limitation when a new individually-based limitation is indicated, or change or removal of an individually-based limitation is needed.

History

Statutory/Other Authority: ORS 409.050, 413.042, 413.085 & 443.738
Statutes/Other Implemented: ORS 409.050, 413.042, 413.085 & 443.738
APD 28-2018, amend filed 07/31/2018, effective 08/01/2018
APD 15-2017, f. 6-26-17, cert. ef. 7-1-17
APD 45-2016, f. 12-22-16, cert. ef. 12-28-16
APD 11-2016(Temp), f. 6-27-16, cert. ef. 7-1-16 thru 12-27-16
APD 23-2015, f. 12-15-15, cert. ef. 1-1-16

Division 5 PRIVACY OF PROTECTED INFORMATION

Or. Admin. R. 411-005-0010 Disclosure of Information to the Client or Third Party

This rule applies to programs covered by chapter 411 of the Oregon Administrative Rules.

(1) Except as provided in section (2) of this rule and OAR 410-014-0030:

(a) The Department must make information in a client case record or record of service as defined in 411-320-0070 available to the client or anyone authorized by the client.

(b) Information that was obtained from a third party, becomes part of the case record of the client and is available to the client.

(c) Case record information may be requested by the client and released to the client or third party by telephone. The client must satisfy the local office as to their identity. A verbal authorization from the client is permitted to allow verbal release of case record information specified by the client to third parties. Each authorization is valid for a period of 30 days from the date the authorization is given verbally, unless a shorter time period is given.

(2) The Department may withhold from clients information that was obtained from a confidential informant if all of the following are true:

(a) The information was submitted to the Department in confidence.

(b) The information was not required by law to be submitted.

(d) The Department has obliged itself not to disclose the information.

(e) The information is not a part of the case record.

(f) The public interest would suffer if the information were disclosed.

(3) An employee designated by the Department or local office must be present while the client or the authorized third party has access to the case record. No one except a Department or local office employee is allowed to remove any material from the case record.

(4) Except for HIV information and the provisions in 411-005-0045, client information may be exchanged with other governmental or private, non-profit agencies if necessary to assist the individual in accessing other governmental or private, non-profit services that will benefit or serve the individual. Reasonable efforts must be made to obtain authorization in advance.

(5) Disclosure of individually identifying information concerning clients without their authorization is allowed for purposes outlined in 410-014-0020 and for purposes directly connected with:

(a) Any investigation, prosecution, or criminal or civil proceeding conducted in connection with the administration of an assistance or service program; or

(b) The administration of any other federal or federally assisted program which provides assistance in cash, in-kind or services directly to individuals on the basis of need.

(6) The Department will disclose only the minimum amount of information necessary for the purpose. The "minimum necessary" standard is described in OAR 410-014-0040.

History

Statutory/Other Authority: ORS 410.140, 410.150 & 411.060
Statutes/Other Implemented: ORS 410.140, 410.150, 411.060, 411.300 & 411.320
SPD 24-2006, f. 6-27-06 cert. ef. 7-1-06
SSD 1-1984, f. & ef. 2-1-84

Or. Admin. R. 411-005-0015 Release of Information to a Law Enforcement Officer

For any program covered by OAR chapter 411:

(1) The Department may provide client information only to a law enforcement officer in any of the following situations:

(a) The law enforcement officer is involved in carrying out public assistance laws, or any investigation, criminal or civil proceedings connected with administering the Department’s benefit programs.

(b) The disclosure is required or authorized by statute or administrative rule.

(2) The Department may give a client's current address, Social Security number, and photo to a law enforcement officer if the law enforcement officer makes the request in the course of official duty, supplies the client’s name, and states that the client:

(a) Is a fugitive felon or is violating parole or probation; or

(b) Has information that is necessary for the officer to conduct official duties of the officer, and the location or apprehension of the client is within the officer's official duties.

(3) The Department will notify the Oregon State Police with the name, address, and other requested identifying information of an client individual who receives services, benefits, or assistance, if the Department is aware of a pending warrant for the arrest of a client.

History

Statutory/Other Authority: ORS 410.140 & 410.150
Statutes/Other Implemented: ORS 410.140, 410.150 & 659A.212
SPD 24-2006, f. 6-27-06 cert. ef. 7-1-06
SSD 1-1984, f. & ef. 2-1-84

Or. Admin. R. 411-005-0020 Release of Information to a State or Federal Legislative Body or Committee

(1) The Department may not disclose any information identifying any client by name or address to any committee, advisory board, legislative body, or individual member of such committee, board, or body without written consent of the client.

(2) The Department may disclose the minimum necessary information about a client to a public official who has been asked by the client to review an action taken by the Department.

History

Statutory/Other Authority: ORS 410.140 & 411.300
Statutes/Other Implemented: ORS 410.140 & 410.150
SPD 24-2006, f. 6-27-06 cert. ef. 7-1-06
SSD 1-1984, f. & ef. 2-1-84

Or. Admin. R. 411-005-0035 Release of Information in Judicial Proceedings

(1) Client specific information must not be divulged in any judicial proceeding unless:

(a) The proceeding is directly connected with administration of public assistance or service under chapter 411 of the Oregon Administrative Rules; or

(b) The client has given written authorization for release of specific information at the judicial proceeding; or

(2) Except in the presence of one of these three conditions, no information will be released in any form during any stage of a judicial proceeding either voluntarily or as the result of a subpoena.

(3) When appearing before the court in a judicial proceeding where the proceeding are not directly connected with administering the programs covered by chapter 461 of the Oregon Administrative Rules and there is no written client authorization that permit the release of information, a Department employee provides the presiding judge with copies of the state statutes relating to confidentiality of client records (such as ORS 411.117, 411.320, and 418.130). The employee requests the court's guidance about testifying under the statutes.

History

Statutory/Other Authority: ORS 410.140 & 411.300
Statutes/Other Implemented: ORS 410.150
SPD 24-2006, f. 6-27-06 cert. ef. 7-1-06
SSD 1-1984, f. & ef. 2-1-84

Or. Admin. R. 411-005-0045 Release of Alcohol and Drug and Mental Health Reports

(1) Unauthorized use, disclosure and redisclosure of alcohol and drug treatment information and mental health information is prohibited.

(2) A client has the right to restrict to what entity or person and for what purpose treatment information may be disclosed.

(3) The client’s right to limit use and disclosure of alcohol and drug and mental health information must be communicated to the client.

History

Statutory/Other Authority: ORS 410.140 & 411.300
Statutes/Other Implemented: ORS 410.140 & 410.150 & 179.505
SPD 24-2006, f. 6-27-06 cert. ef. 7-1-06
SSD 1-1984, f. & ef. 2-1-84

Division 11 PROVISION OF SERVICES BY AREA AGENCIES ON AGING AND COMPETITIVE PROCUREMENT

Or. Admin. R. 411-011-0000 Provision of Services by Area Agencies on Aging (AAAs)

(1) “No supportive or nutrition services will be directly provided by the State agency or an Area Agency on Aging, except where, in the judgment of the State agency, provision of such services by the state agency or an Area Agency on Aging is necessary to assure an adequate supply of such services, or where such services are directly related to such State or Area Agency on Aging’s administrative functions, or where such services of comparable quality can be provided more economically by such State or Area Agency on Aging.” (Older Americans Act, as amended through 1984, Section 307(a)(10)).

(2) In districts where the county has been designated the Area Agency on Aging and where the county has multiple responsibilities for health and social service delivery, services may be provided through an interagency agreement between the Area Agency on Aging and the pertinent health or social services components of the county.

(3) Decision of the Seniors and People with Disabilities Division on provision of services shall be based on the following criteria:

(a) Adequacy of supply;

(b) Administrative functions:

(A) Program Development, Coordination, Advocacy, Title XIX Case Management, and Oregon Project Independence Case Management at the option of the Area Agency on Aging are considered integral to AAA administration;

(B) The AAA may also provide service(s) directly when it can demonstrate, on the basis of documentation in the area plan, that it would not be practical to separate the service(s) from the AAA’s overall administrative functions. The services which may be directly related to administrative functions are: non-Title XIX Case Management, Information and Referral and Meal Site Supervision.

History

Statutory/Other Authority: ORS 411.070
Statutes/Other Implemented: ORS 410.240, 410.250, 410.270 & 410.280
SSD 4-1986, f. & ef. 2-20-86

Or. Admin. R. 411-011-0005 Competitive Procurement

(1) General Requirements:

(a) The Competition in Contracting Act of 1984 requires that, in the procurement of services, there be a solicitation, and that it be designed to achieve full and open competition for the procurement;

(b) A competitive process requires use of performance based contracts. The contract type will be a firm, fixed unit rate; fixed rate with economic adjustment; or fixed ceiling price contract. The contract will state the conditions under which economic adjustment will occur, and/or under what conditions cost will be allowed within a fixed ceiling price contract;

(c) Contract principles described in 45 CFR Part 74; Title 41 Code of Federal Regulations; and the Federal Acquisition Regulation (FAR), Part 6, outlines the principal processes for contracting and are to be followed in procuring services.

(2) Criteria to Assure Competitive Process:

(a) At least annually, the Division shall solicit potential providers by advertising in the Daily Journal of Commerce (DJC) and a newspaper having statewide circulation and appropriate minority media. Additionally, the Area Agency on Aging (AAA) shall advertise in the geographic area in which services will be impacted;

(b) At the option of the AAA, make available to potential providers (contractors) identified through subsection (2)(a) of this rule, the cost (i.e., unit cost) at which the Area Agency on Aging has provided and will provide services, including enough data from the cost analysis for potential providers to determine whether they will commit to a letter of intent to submit a proposal if a Request for Proposal (RFP) is issued;

(c) If two or more potential providers are identified as a result of subsection (2)(a) of this rule and OAR 411-011-0000(3) does not apply, the AAA shall follow the provisions of subsection (1)(c) of this rule;

(d) If the AAA has determined through subsection (2)(a) of this section that there is only one potential provider of the service and OAR 411-011-0000(3) does not apply, then the AAA shall proceed with a negotiated procurement as sole source;

(e) If the AAA has determined through subsection (a) of this section that there are no potential providers, other than the AAA itself, the AAA may provide the service directly, as provided for under OAR 411-011-0000(3)(a);

(f) The AAA may respond to its own RFP in accordance with OAR 411-011-0015.

[Publications: Publications referenced are available from the agency.]

History

Statutory/Other Authority: ORS 411.070
Statutes/Other Implemented: ORS 410.250, 410.270 & 410.280
SSD 4-1986, f. & ef. 2-20-86

Or. Admin. R. 411-011-0010 Competitive Procurement for Nutrition Services

(1) In accordance with the Older Americans Act, as amended through 1984: “No contract awarded after September 30, 1982, shall be entered into for the provision of nutrition services unless such contract has been awarded through a competitive process. Such process shall include evaluation of each bidder’s experience in providing services to older individuals. Whenever there is no evidence of improved quality of service and cost effectiveness on the part of another bidder, a provider of services, who received funds under Title VII of the Older Americans Act of 1965 as in effect on September 29, 1978, shall be given preference.” (Section 501(b))

(2) Those elements of nutrition services relevant to competitive contracting are meal preparation and meal service delivery and management.

(3) The Area Agency on Aging (AAA) may apply the criteria under OAR 411-011-0005(2) to meal preparation and meal service delivery management combined or separately and in any combination of geographic locations. Additionally, these criteria may be applied to management of a local site of which nutrition services are but one component.

History

Statutory/Other Authority: ORS 411.070
Statutes/Other Implemented: ORS 410.250, 410.270 & 410.280
SSD 4-1986, f. & ef. 2-20-86

Or. Admin. R. 411-011-0015 Response by Area Agency on Aging to Requests for Proposal

(1) An Area Agency on Aging may respond to its own Request for Proposal (RFP). In doing so, it shall process the evaluation of responses to such a Request for Proposal in the following manner:

(a) The Area Agency on Aging shall place its pricing (only unit cost) proposal, along with the notice of intent to propose, in the RFP so that all other agencies or organizations wishing to submit proposals may determine whether or not they are able to submit proposals in competition to the one published by the Area Agency on Aging;

(b) When another agency or organization submits a proposal, in addition to the Area Agency, evaluation of all RFPs shall be accomplished by a fair and impartial evaluation team. Membership on the panel by Area Agency Board and Advisory Council membership on the evaluation team shall constitute less than 50 percent. The evaluation team shall be chaired by a disinterested party not affiliated with the Area Agency or any of the proposers;

(c) Technical and price proposals must not identify the organization submitting the proposal in any way in the proposal or on the envelope. Proposals which do identify the organization submitting the proposal in the technical or price proposals shall be deemed unresponsive and shall not be considered for possible contract award. The management proposal will be the only part of the proposal that identifies the organization submitting the proposal. The evaluation team shall not be aware of the organization submitting the proposal until after the technical and price proposals have been evaluated and scored;

(d) If the Area Agency on Aging is the recipient of the award, it must meet the same contractual provisions, standards, and price that any non-Area Agency on Aging provider would be required to meet.

(2) In the event the Area Agency on Aging Board selects the Area Agency as the provider over the recommendation of the evaluation team, the Area Agency must provide its justification in a public meeting held locally, and, in writing, document to the Senior Services Division Administrator the rationale for making its selection. The Administrator of the Senior Services Division or his/her designee, shall have the discretion to either uphold or override the decision of the Area Agency Board or cause the RFP to be reissued.

History

Statutory/Other Authority: ORS 411.070
Statutes/Other Implemented: ORS 410.250, 410.270 & 410.280
SSD 4-1986, f. & ef. 2-20-86

Division 14 OREGON PROJECT INDEPENDENCE - MEDICAID (OPI-M) ELIGIBILITY

Or. Admin. R. 411-014-0000 Purpose

The purpose of these rules is to define the eligibility requirements for the Oregon Project Independence-Medicaid (OPI-M) Program.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 65-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 23-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-014-0005 Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 014:

(1) "Activities of Daily Living (ADL)" mean those personal functional activities required by an individual for continued well-being, which are essential for health and safety and defined in OAR 411-015-0006. Activities include bathing and personal hygiene, cognition, dressing and grooming, eating, elimination, and mobility.

(2) "Adult" means any person at least 18 years of age.

(3) "Alternative Service Resources" means other possible resources for the provision of services to meet an individual's needs. Alternative service resources include, but are not limited to, natural supports, risk intervention services, Veterans programs or other community supports. Alternative service resources are not paid by Medicaid.

(4) "Area Agency on Aging (AAA)" means the Department designated agency charged with the responsibility to provide a comprehensive and coordinated system of services to older adults and adults with disabilities in a planning and service area. The term Area Agency on Aging (AAA) is inclusive of both Type A and Type B AAAs as defined in ORS 410.040 to 410.300.

(a) “Type A Area Agency on Aging” means an Area Agency on Aging for which either the local government or the area agency board does not agree to accept local administrative responsibility for Title XIX Medicaid except OPI-M; and that provides a service to adults.

(b) “Type B Area Agency on Aging” means an Area Agency on Aging:

(A) For which the local government agrees to accept local administrative responsibility for Title XIX Medicaid;

(B) That provides a service to older adults or to older adults and persons with disabilities who require services similar to those required by older adults; and

(i) Type B Contract- Staff are employed by the AAA and only administer Older Americans Act, Oregon Project Independence and Oregon Project Independence Medicaid services case management services.

(ii) Type B Transfer- Staff are employed by the AAA and administer all of the following programs: Medicaid, financial services, Supplemental Nutrition Assistance Program, adult protective services, regulatory programs, Older Americans Act, Oregon Project Independence and all Oregon Project Independence-Medicaid services.

(5) "Assistive Devices" means any category of durable medical equipment, mechanical apparatus, electrical appliance, instrument of technology, service animal, general household items, or furniture used to assist and enhance an individual's independence in performing any activity of daily living.

(6) "Client Assessment and Planning System (CA/PS)" means:

(a) The single-entry data system used for -

(A) Completing a comprehensive and holistic assessment;

(B) Surveying an individual's physical, mental, and social functioning; and

(b) The CA/PS documents the level of need and calculates the individual's service priority level in accordance with these rules and requires that the individual or the individual’s representative participate in service planning.

(7) “Conflict-free Case Management” means that assessment and coordination of services are separate from the delivery of services, with the goal to limit any conscious or unconscious bias that a case manager or agency may have, and ultimately promote the individual's choice and independence.

(8) "Department" means the Oregon Department of Human Services (ODHS).

(9) “Developmental Disability” means a neurological condition as defined in OAR 411-320-0020.

(10) "Disability" means people aged 18-59 meeting the criteria for disability as a basis of need in OAR 461-125-0370.

(11) "Eligibility Case Manager" means an employee of the Department or Type B Transfer Area Agency on Aging who assesses the financial eligibility and service eligibility of individuals and determines Oregon Project Independence-Medicaid.

(12) “Family Caregiver Support Program (FCSP)” means the Title IIIE Older Americans Act funded program to assist family caregivers as described in the Family Caregiver Support Program Standards.

(13) "Functional Impairment" means an individual's pattern of mental and physical limitations that restricts the individual's ability to perform activities of daily living and instrumental activities of daily living without the assistance of another person.

(14) "Health and Safety" means the essential actions necessary to meet an individual’s health care, food, shelter, clothing, personal hygiene, and other care needs without which serious physical injury or illness is likely to occur that would result in hospitalization, death or permanent disability.

(15) "Home" or “In-Home” means a setting that exhibits the characteristics described in OAR 411-030-0033.

(16) “Implementation Phase” means the initial period where the Department will prioritize individuals at-risk of institutionalization who have been unable to access Oregon Project Independence or whose needs are not being met by Oregon Project Independence. The implementation phase will conclude no later than February 28, 2025.

(17) "Individual" means an older adult or an adult with a disability applying for or eligible for services. The term “individual” is synonymous with "consumer" or "client".

(18) “Instrumental Activities of Daily Living (IADL)” means those activities, other than activities of daily living, required by an individual to continue independent living. The definitions and parameters for assessing needs in IADL are identified in OAR 411-015-0007.

(19) “Intellectual Disability” means significantly sub average general intellectual functioning as defined in OAR 411-320-0020.

(20) “Medicare Savings Programs” means the Qualified Medicare Beneficiary (QMB) and Supplemental Low Income Medicare Beneficiary Programs (SMB & SLMB) in OAR chapter 461.

(21) "Mental or Emotional Disorder" means:

(a) A schizophrenic, mood, paranoid, panic, or other anxiety disorder;

(b) A somatoform, personality, dissociative, factitious, eating, sleeping, impulse control, or adjustment disorder; or

(c) Other psychotic disorders as defined by the American Psychiatric Association in the Diagnostic and Statistical Manual.

(22) "Natural Supports" or "Natural Support System" means resources and supports (e.g., relatives, friends, significant others, neighbors, roommates, or the community) who are willing to voluntarily provide services to an individual without the expectation of compensation. Natural Supports are identified in collaboration with the individual and the potential natural support. The Natural Support is required to have or be able to readily acquire the skills, knowledge, and ability to provide the needed services and supports.

(23) "Oregon Project Independence- Medicaid (OPI-M)" means the services approved and funded by the Centers for Medicare and Medicaid Services (CMS) for eligible individuals in accordance with the 1115 demonstration waiver for the Oregon Project Independence-Medicaid program and including the services defined in these rules.

(24) "Older Adult" means any person at least 60 years of age.

(25) “Oregon Supplemental Income Program Medical” (OSIPM) means medical coverage for individuals who are 65 years of age or older, who are blind, or who have a disability as described in OAR chapter 461.

(26) “Program consultation” means presenting service options, resources, and alternatives to the individual to assist the individual in making informed choices and decisions about programs. This includes options available through Medicaid long term services and support, OPI-M or other state funded programs.

(27) “Representative” is the person appointed by the individual or a person with longstanding involvement in assuring the individual’s health, safety and welfare. For the purposes of these rules, representative also includes guardians, legal representatives and designated representatives.

(28) “Services Case Manager” means an employee of a AAA or the Department who is providing OPI-M conflict-free case management. The Services Case Manager provides person-centered service planning for and with eligible individuals. This includes developing, authorizing and implementing an individual's service plan and monitoring service provision as described in OAR chapter 411, division 016.

(29) “Substance Use Disorder” means disorders related to the taking of a drug or toxin, including alcohol.

(a) Substance use disorders include:

(A) Substance dependency and substance abuse;

(B) Alcohol dependency and alcohol abuse; and

(C) Substance induced disorders and alcohol induced disorders as defined by the American Psychiatric Association in the Diagnostic and Statistical Manual.

(b) Substance use disorders are not considered physical disabilities. Dementia or other long term physical or health impairments resulting from substance abuse may be considered physical disabilities.

(30) "Title XIX Medicaid” means a joint federal and state funded program for medical assistance established by Title XIX of the Social Security Act as amended and administered in Oregon.

(31) "These Rules" means the rules in OAR chapter 411, division 014.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 65-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 23-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-014-0020 Eligibility and Limitations for Oregon Project Independence-Medicaid

(1) To be eligible for Oregon Project Independence- Medicaid services, an individual must:

(a) Be age 18 or older;

(b) If aged 18-59, meet the criteria for disability in OAR 461-125-0370 used for the OSIPM;

(c) Meet financial eligibility criteria in OAR chapter 411, division 014 and the OSIPM requirements for individuals in non-standard living arrangements in OAR chapter 461, all divisions unless otherwise covered in OAR 411-014-0025;

(d) Meet the functional impairment level within the service priority levels (1) to (18) as defined in OAR 411-015-0010; and

(e) Reside in an In-home setting as defined in OAR 411-030-0033 and not reside in any of the settings in OAR 411-030-0040(7).

(2) During the implementation phase of Oregon Project Independence-Medicaid, the Department will prioritize individuals at-risk of institutionalization who have been unable to access Oregon Project Independence or whose needs are not being met by Oregon Project Independence.

(3) Individuals under 60 years of age with a diagnosis of an intellectual or developmental disability are not eligible for OPI-M.

(4) Individuals under 60 years of age who have a diagnosis of mental or emotional disorder or substance use disorder are not eligible for OPI-M unless all of the following are met:

(a) The individual has a medical, non-psychiatric diagnosis or physical disability;

(b) The individual's need for services is based on their medical, non-psychiatric diagnosis, or physical disability; and

(c) The individual provides supporting documentation demonstrating that their need for services is based on the medical, non-psychiatric diagnosis, or physical disability. The Department authorizes documentation sources through approved and published policy transmittals.

(5) Individuals receiving any of the following programs or services through the Department are not eligible for OPI-M services:

(a) 1915(i), 1915(j), or 1915(k) state plan services as defined in Oregon’s Medicaid State Plan including but not limited to:

(A) Spousal Pay services as defined in OAR 411-030-0080;

(B) The Independent Choices Program defined in OAR 411-030-0100; and

(b) Waivered services under any Oregon 1915(c) waiver;

(d) Healthier Oregon Program as defined in OAR 461-135-1080;

(e) Oregon Project Independence as defined in OAR chapter 411, division 032 or any duplicative Older Americans Act funded services;

(6) Individuals receiving the OSIPM under the following may be eligible to receive OPI-M services if they meet all other OPI-M program eligibility criteria:

(a) OAR 461-135-0010(2) Assumed, Continuous and Protected Eligibility: OSIPM, QMB;

(b) OAR 461-135-0830 Eligibility for Disabled Adult Children; OSPIM;

(7) Individuals may receive both the Supplemental Nutrition Assistance Program and OPI-M.

(8) OPI-M services are not intended to replace natural support systems. Paid support is provided if a natural support is unwilling or unable to provide identified services or to supplement unmet needs that the natural support cannot meet.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 65-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 23-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-014-0025 Financial Eligibility for OPI-M

(1) The income and resource methodology for OSIPM outlined in OAR chapter 461 is used to determine financial eligibility for the OPI-M except as follows:

(a) In OPI-M an individual must have adjusted income (see OAR 461-001-0000) that is equal to or less than 400 percent of the federal poverty level for a family of one and may not be exceeded through qualifying trusts as specified in OAR 461-145-0540(9)(c).

(b) For an individual, the resource limit is calculated using the basic statutory daily nursing facility rate as described in OAR 411-070-0075(1) multiplied by 30.4 (average days per month) multiplied by six (6) months.

(c) At initial eligibility, the resources of the spouse (see OAR 461-001-0000) are considered and the provisions of OAR 461-160-0580(2)(f)(A) apply, except that the individual’s resource limit is calculated in accordance with subsection (b) of this section.

(d) Individuals are subject to the rules regarding both of the following:

(A) The transfer of assets as set forth in OAR 461-140-0210 to 461-140-0300 except in OAR 461-140-0250 (2)(a)(A)(ii) the resource limit is the current OPI-M resource limit in OAR 411-014-0025(1)(b), not the OSIPM resource limit.

(B) The home equity value limits as set forth in OAR 461-145-0220.

(2) No payments or benefits paid under OPI-M shall be subject to the estate recovery program, including, without limitation, under OARs 461-135-0835, 461-135-0837, and 461-135-0845. Trustees of Medicaid-qualifying trusts (OARs 461-145-0540(10)(a), 461-145-0540(10)(c), or 461-145-0540(11)) need not repay these benefits under those trusts’ required payback clauses. Notwithstanding the exclusion of OPI-M services from estate recovery, an individual must still comply with OAR 461-145-0022 Annuities: OSIPM.

(3) OPI-M recipients are not subject to a liability as described in OAR 461-160-0620.

(4) Periodic redeterminations of eligibility required in OAR 461-115-0430 are required every 24 months for people receiving OPI-M services.

(5) Notwithstanding OAR 411-014-0025(4) if one of the following circumstances occur during an individual’s period of continuous OPI-M eligibility, OPI-M eligibility may be redetermined or terminated:

(a) The individual becomes pregnant or otherwise eligible for Medicaid or CHIP;

(b) The individual is no longer an Oregon resident;

(d) The individual dies; or

(e) The agency determines that eligibility was erroneously granted at the most recent determination, redetermination, or renewal of eligibility because of agency error or fraud, abuse, or perjury attributed to the individual.

History

Statutory/Other Authority: ORS 409.050, 410.060, 410.070, 411.070, 411.404, 411.816, 412.049, 413.085 & 414.685
Statutes/Other Implemented: ORS 409.010, 410.060, 410.070, 411.070, 411.404, 411.816, 412.049, 413.085 & 414.685
APD 65-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 23-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-014-0030 Scope of OPI-M Eligibility Case Management

(1) Eligibility Case Managers are responsible for:

(a) Eligibility related, consultation, and referral tasks including:

(A) Service eligibility assessments and service eligibility determinations as described OAR 411-014-0040;

(i) Initial eligibility determinations must be conducted within 45 days of the date of request;

(ii) Redeterminations must be completed every two years.

(B) Initial financial eligibility determinations and re-determinations as required by OAR 461-135-0010(3) including income and asset verifications and notice of eligibility.

(D) Program consultation, presenting options, resources, and alternatives to an individual to assist the individual in making informed choices about program selection; and

(E) Referrals for program coordination and communication with the Services Case Manager when OPI-M is chosen by the individual.

(b) Assisting individuals to make informed decisions by providing complete and unbiased information.

(A) Are driven by the individual;

(B) Include people chosen by the individual;

(D) Reflect the cultural considerations of the individual; and

(E) Use the language, format, and presentation methods appropriate for effective communication according to the needs and abilities of the individual and, as applicable, representative of the individual.

(d) Informing individuals of grievance and hearing rights and follow grievance and hearing processes.

(2) Type B transfer AAA staff serving as OPI-M Eligibility Case Managers may also serve as Services Case Managers.

(3) ODHS Eligibility case managers must respond to OPI-M communication from AAAs within five business days. Responses to communication from eligible individuals and their representatives must also occur within five business days.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 65-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 23-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-014-0035 Qualified Case Manager

Eligibility case managers must meet the qualifications in OAR 411-028-0040.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 65-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 23-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-014-0040 Assessments

(1) Assessments must be conducted by eligibility case managers and in accordance with OAR 411-015-0008 except that the service eligibility assessment and determination is made every 24-months in accordance with the continuous eligibility standard in OPI-M.

(2) The Services Case Manager may attend the assessment conducted by the Eligibility Case Manager if the individual approves.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 65-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 23-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Division 15 LONG-TERM CARE SERVICE PRIORITIES FOR INDIVIDUALS SERVED

Or. Admin. R. 411-015-0000 Purpose

The purpose of establishing priorities for persons to be served is to assist the Department in addressing the following goals:

(1) To enable persons eligible for and receiving services to remain in the least restrictive and least costly setting consistent with their service needs; and

(2) To serve those persons who are the most functionally impaired and who have no or inadequate alternative service resources; and

(3) To assure access to services paid by the Department to eligible persons; and

(4) To assure that services paid by the Department, and the setting in which they are provided are safe and adequate; and

(5) To manage limited resources to enable the greatest possible number of persons to receive needed services through a priority system based on the Department's assessment of the individual’s functional impairment and alternative service resources.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 19-2006, f. 5-26-06, cert. ef. 6-1-06
SPD 12-2003, f. 5-30-03, cert. ef. 6-4-03
SDSD 11-2002(Temp), f. 12-5-02, cert. ef. 12-6-02 thru 6-3-03
SSD 21-1991, f. 12-31-91, cert. ef. 1-1-92, Former (2)(a) - (l) Renumbered to 411-015-0005; Former (3) renumbered to 411-015-0010; Former (4) Renumbered to 411-015-0015
SSD 12-1991(Temp), f. 6-28-91, cert. ef. 7-1-91
SSD 12-1987, f. 12-31-87, cert. ef. 1-1-88
SSD 9-1986, f. & cert. ef. 7-1-86
SSD 5-1986, f. & cert. ef. 4-14-86
SSD 3-1985, f. & cert. ef. 4-1-85

Or. Admin. R. 411-015-0005 Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 015:

(1) "AAA" means "Area Agency on Aging" as defined in this rule.

(2) "Activities of Daily Living (ADL)" mean those personal functional activities required by an individual for continued well-being, which are essential for health and safety. Activities include eating, dressing and grooming, bathing and personal hygiene, mobility, elimination, and cognition.

(3) "Adult" means any person at least 18 years of age.

(4) "Alternative Service Resources" means other possible resources for the provision of services to meet an individual's needs. Alternative service resources include, but are not limited to, natural supports, risk intervention services, Older Americans Act programs, or other community supports. Alternative service resources are not paid by Medicaid.

(5) "Architectural Modifications" means any service leading to the alteration of the structure of a dwelling to meet the specific service needs of an eligible individual.

(6) "Area Agency on Aging (AAA)" means the Department designated agency charged with the responsibility to provide a comprehensive and coordinated system of services to older adults and adults with disabilities in a planning and service area. The term Area Agency on Aging (AAA) is inclusive of both Type A and Type B AAAs as defined in ORS 410.040 to 410.300.

(7) "Assistance Types" needed for activities of daily living and instrumental activities of daily living include the following:

(a) "Cueing" means giving verbal or visual clues during an activity to help an individual complete the activity without hands-on assistance.

(b) "Hands-on" means a provider physically performs all or parts of an activity because an individual is unable to do so.

(d) "Reassurance" means to offer an individual encouragement and support.

(e) "Redirection" means to divert an individual to another more appropriate activity.

(f) "Set-up" means getting personal effects, supplies, or equipment ready so that an individual may perform an activity.

(g) "Stand-by" means a provider is at the side of an individual ready to step in and take over the task if the individual is unable to complete the task independently.

(h) "Support" means to enhance the environment to enable an individual to be as independent as possible.

(8) "Assistive Devices" means any category of durable medical equipment, mechanical apparatus, electrical appliance, instrument of technology, service animal, general household items, or furniture used to assist and enhance an individual's independence in performing any activity of daily living.

(9) "Behavioral Care Plan" means a documented set of procedures, reviewed by the Department or AAA representative, which describes interventions for use by a provider to prevent, mitigate, or respond to behavioral symptoms that negatively impact the health and safety of an individual or others in a home or community-based services setting. The preferences of an individual are included in developing a Behavioral Care Plan.

(10) "Business Days and Hours" means Monday through Friday and excludes Saturdays, Sundays, and state or federal holidays. Hours are from 8:00 AM to 5:00 PM.

(11) "CA/PS" means "Client Assessment and Planning System" as defined in this rule.

(12) "Care Setting" means a Department contracted facility where an eligible individual resides and receives services. Care settings include adult foster homes, residential care facilities, assisted living facilities, specialized living contracted residences, and nursing facilities.

(13) "Case Manager" means an employee of the Department or AAA who assesses the service needs of individuals, determines eligibility, and offers service choices to eligible individuals. The case manager authorizes and implements an individual's service plan and monitors the services delivered as described in OAR chapter 411, division 028.

(14) "Client Assessment and Planning System (CA/PS)" means:

(a) The single entry data system used for -

(A) Completing a comprehensive and holistic assessment;

(B) Surveying an individual's physical, mental, and social functioning; and

(b) The CA/PS documents the level of need and calculates the individual's service priority level in accordance with these rules, calculates the service payment rates, and accommodates individual participation in service planning.

(15) "Cognition" means the individual’s mental functional ability to ensure their health, safety and basic needs are met. It includes the individual’s understanding of the need to perform and manage ADLs and IADLS. It does not refer to choices an individual may make that others may deem to be unsafe. Nor does it refer to an individual’s knowledge and skills, rather their cognitive ability to use and process information.

(16) "Component" means distinct parts of an ADL or IADL that are defined within each ADL or IADL.

(17) "Cost Effective" means being responsible and accountable with Department resources. This is accomplished by offering less costly alternatives when providing choices that adequately meet an individual's service needs. Those choices consist of all available services under the home and community-based service options, the utilization of assistive devices, natural supports, architectural modifications, and alternative service resources not paid for by the Department.

(18) "Department" means the Oregon Department of Human Services (ODHS).

(19) "Disability" means a physical, cognitive, or emotional impairment which, for an individual, constitutes or results in a functional limitation in one or more of the activities of daily living defined in OAR 411-015-0006.

(20) "Event Specific" means situations that are not part of the individual’s daily or weekly routine, such as doctor visits or other outings.

(21) "Extraordinary Circumstances" means:

(a) An individual being assessed is working full time during business hours; or

(b) A family member, whose presence is requested by an individual being assessed, is traveling from outside the area, and is available for only a limited period of time that does not include business days and hours.

(22) "Extended Waiver Eligibility (EWE)" means the criteria that allows individuals assessed at Service Priority Level 14-17, who are determined to have a high risk for hospitalization or institutionalization within 30 days of Long Term Services and Supports ending to continue receiving Long Term Services and Supports until the risks can be mitigated.

(23) "Functional Impairment" means an individual's pattern of mental and physical limitations that restricts the individual's ability to perform activities of daily living and instrumental activities of daily living without the assistance of another person.

(24) "Health and Safety" means the essential actions necessary to meet an individual’s health care, food, shelter, clothing, personal hygiene and other care needs without which serious physical injury or illness is likely to occur that would result in hospitalization, death or permanent disability.

(25) “Healthier Oregon” means an OHP Plus equivalent benefit (410-120-1210(4)(h)) for individuals described in 461-135-1080.

(26) "Home" means a setting that exhibits the characteristics described in OAR 411-030-0033(2)(a) - (d) and is not a care setting as defined in this rule.

(27) " Home and Community-Based Services" means the non-institutional services and settings approved and funded by the Centers for Medicare and Medicaid Services (CMS) for eligible individuals in accordance with Title XIX of the Social Security Act or funded through Healthier Oregon.

(28) "Independent" means an individual does not meet the definition of "assist" or "full assist" when assessing an activity of daily living as described in OAR 411-015-0006 or when assessing an instrumental activity of daily living as described in OAR 411-015-0007.

(29) "Individual" means an older adult or an adult with a disability applying for or eligible for services. The term “individual” is synonymous with "consumer" or "client".

(30) “Medicaid” means a joint federal and state funded program for medical assistance established by Title XIX of the Social Security Act as amended and administered in Oregon by the Authority.

(31) "Medicaid OHP Plus Benefit Package" means the Medicaid benefit packages provided under OAR 410-120-1210(4)(a) and (b) and those receiving Healthier Oregon benefits under OAR 461-135-1080. This excludes individuals receiving Title XXI benefits.

(32) "Mental or Emotional Disorder" means:

(a) A schizophrenic, mood, paranoid, panic, or other anxiety disorder;

(b) A somatoform, personality, dissociative, factitious, eating, sleeping, impulse control, or adjustment disorder; or

(c) Other psychotic disorders as defined by the American Psychiatric Association in the Diagnostic and Statistical Manual.

(33) "Natural Support" means resources and supports (e.g. relatives, friends, significant others, neighbors, roommates, or the community) who are willing to voluntarily provide services to an individual without the expectation of compensation. Natural supports are identified in collaboration with the individual and the potential "natural support". The natural support is required to have the skills, knowledge, and ability to provide the needed services and supports.

(34) "Older Adult" means any person at least 65 years of age.

(35) "OSIPM" means Oregon Supplemental Income ProgramMedical as defined in OAR 461-101-0010. OSIPM is Oregon Medicaid insurance coverage for individuals who meet eligibility criteria as described in OAR chapter 461.

(36) "Physically Aggressive" means an individual has used physical force that resulted in bodily injury, physical pain, or impairment to another individual. This may include hitting, shoving, scratching, striking out (with or without an object), pushing, shoving, or sexually assaulting others. As used in these rules, an individual who is physically abusive does not have the cognitive ability to regulate their behaviors.

(37) "Service Priority Level (SPL)" means the order in which the Department and AAA staff identify individuals eligible for a nursing facility level of care, Oregon Project Independence, or home and community-based services. A lower SPL number indicates greater or more severe functional impairment. The number is synonymous with the SPL.

(38) "Significant Health Outcome" means the individual would require immediate assistance from a physician, nurse practitioner or physician assistant to safely address the outcome. This means incidents such as a broken bone or a wound that requires stiches rather than bruising or scrapes.

(39) "Socially Inappropriate" means the individual conducts self-abusive acts, exhibits sexual aggression towards others, or displays a loss of inhibitions resulting in inappropriate behaviors, such as disrobing in public, smearing feces, throwing food or eliminating in inappropriate places. As used in these rules, the individual who is socially inappropriate does not have the cognitive ability to regulate their behaviors.

(40) "Soiled" means the individual has urinated or defecated in their incontinence supplies or clothing to the degree that the individual would face a significant health outcome.

(41) "Substance Abuse Related Disorders" means disorders related to the taking of a drug or toxin, including alcohol.

(a) Substance abuse related disorders include:

(A) Substance dependency and substance abuse;

(B) Alcohol dependency and alcohol abuse; and

(C) Substance induced disorders and alcohol induced disorders as defined by the American Psychiatric Association in the Diagnostic and Statistical Manual of Mental Disorders.

(b) Substance abuse related disorders are not considered physical disabilities. Dementia or other long term physical or health impairments resulting from substance abuse may be considered physical disabilities.

(42) "Tasks" means distinct parts of an activity of daily living.

(43) "These Rules" means the rules in OAR chapter 411, division 015.

(44) "Verbally Aggressive" means an individual has threatened or screamed at others to the level that it became disruptive to having their own daily needs met. This does not include verbal altercations or reactions to pain. As used in these rules, an individual who is verbally aggressive does not have the cognitive ability to regulate their behaviors.

(45) "Without Supports" means an individual lacks the assistance of another person, a care setting and staff, or an alternative service resource as defined in this rule.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 58-2022, amend filed 12/22/2022, effective 12/23/2022
APD 25-2022, temporary amend filed 06/14/2022, effective 07/01/2022 through 12/27/2022
APD 10-2018, amend filed 03/28/2018, effective 03/29/2018
APD 19-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 03/29/2018
APD 35-2014, f. & cert. ef. 10-1-14
APD 9-2014(Temp), f. 4-17-14, cert. ef. 4-21-14 thru 10-18-14
SPD 45-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 19-2006, f. 5-26-06, cert. ef. 6-1-06
SPD 19-2005, f. & cert. ef. 12-29-05
SPD 8-2004, f. & cert. ef. 4-27-04
SPD 16-2003(Temp), f. & cert. ef. 10-27-03 thru 4-23-04
SPD 12-2003, f. 5-30-03, cert. ef. 6-4-03
SDSD 11-2002(Temp), f. 12-5-02, cert. ef. 12-6-02 thru 6-3-03
SSD 21-1991, f. 12-31-91, cert. ef. 1-1-92, Renumbered from 411-015-0000(2)(a) - (l)
SSD 12-1991(Temp), f. 6-28-91, cert. ef. 7-1-91
SSD 12-1987, f. 12-31-87, cert. ef. 1-1-88
SSD 9-1986, f. & cert. ef. 7-1-86
SSD 5-1986, f. & cert. ef. 4-14-86
SSD 3-1985, f. & cert. ef. 4-1-85

Or. Admin. R. 411-015-0006 Activities of Daily Living (ADL)

(1) Evaluation of the individual's need for assistance in activities of daily living is based on:

(a) The individual's ability to complete activities, components, and tasks rather than the services provided;

(b) How the individual functioned during the 30 days prior to the assessment date, with consideration of how the person is likely to function in the 30 days following the assessment date; and

(c) Evidence of the actual or predicted need for assistance of another person within the assessment time frame, and it must not be based on possible or preventive needs.

(2) Bathing and personal hygiene. This activity of daily living is comprised of two components, which are bathing and personal hygiene. To be considered assist, the individual must require assistance in bathing or full assistance in hygiene. To be considered full assist, the individual must require full assistance in bathing.

(a) Bathing means the tasks of getting in and out of a bathtub or shower, washing hair, and washing the body, while using assistive devices, if needed. This includes, but is not limited to, sponge baths, bed baths, bathing in a tub, or showering, as chosen by an individual. For individuals who are confined to a bed, bathing is assessed without considering the need to get in or out of the bathtub or shower.

(A) Assist: Even with assistive devices, the individual requires assistance of another person for a task of bathing at least one day each week totaling four days per month. This means hands-on assistance, cueing, or stand-by presence during the activity.

(B) Full Assist: Even with assistive devices, the individual is unable to accomplish any task of bathing without the assistance of another person. This means the individual needs hands-on assistance of another person through all tasks of the activity, every time the activity is attempted.

(b) Personal hygiene means the tasks of shaving, caring for the mouth, or assistance with tasks of menstruation care. This includes, but is not limited to, shaving the face, legs, or other desired areas, brushing teeth, maintaining dentures, caring for gums, and using feminine hygiene products to address menstrual needs.

(A) Assist: Even with assistive devices, the individual requires assistance of another person for a task of personal hygiene at least one day each week totaling four days per month. This means hands-on assistance, cueing, or stand-by presence during the activity.

(B) Full Assist: Even with assistive devices, the individual is unable to complete at least two personal hygiene tasks without the assistance of another person. This means the individual needs hands-on assistance of another person through all tasks, every time the activity is attempted.

(3) Cognition refers to how the individual is able to use information, make decisions, and ensure their daily needs are met. There are four components to cognition: self-preservation, decision-making, ability to make one's self-understood, and unsafe behaviors. For purposes of this rule, assist levels are defined within each of the four components. Individuals assessed as minimal assist may receive cognition hours as defined in OAR 411-030. For each assist level, individuals must have a documented history of actions or behaviors demonstrating they need assistance with ensuring their health and safety.

(a) An individual's ability to manage any component of cognition, as defined in this rule, is assessed by how the individual is able to function without the assistance of another person.

(b)The assessment time frame in OAR 411-015-0008 shall be expanded when assessing cognition. A documented history demonstrating the need for assistance that occurred more than 30 days prior to the assessment date shall be considered if need would likely reoccur in the absence of existing supports.

(c) An individual under age 65, with cognition needs driven by a mental illness, emotional disorder, or substance abuse disorder does not meet the criteria for service eligibility per OAR 411-015-0015.

(d) To assess an individual as meeting the assist criteria for cognition, an individual must require:

(A) Substantial assistance in one of the four components of cognition; or

(B) Minimal assistance in at least two of the four components of cognition.

(e) To meet the criteria for full assist in cognition an individual must require:

(A) Full assistance in at least one of the four components of cognition; or

(B) Substantial Assistance in at least two of the four components.

(f) The four components of cognition are:

(A) SELF-PRESERVATION. Self-Preservation means an individual’s actions or behaviors reflecting the individual's understanding of their health and safety needs and how to meet those needs. Self-preservation refers to an individual's cognitive ability to recognize and take action in a changing environment or a potentially harmful situation.

(i) Self-Preservation includes, but is not limited to an individual:

(I) Being oriented to their community and surroundings such that they can find their way to their home or care setting.

(II) Understanding how to safely use appliances.

(III) Understanding how to take their medications.

(IV) Understanding how to protect themselves from abuse, neglect, or exploitation.

(V) Understanding how to meet their basic health and safety needs.

(ii) Self-preservation does not include the individual engaging in acts that may be risky or life threatening when the individual understands the potential consequences of their actions.

(iii) Self-preservation includes the following assistance types (see OAR 411-015-0005) unless otherwise indicated in the assist level:

(I) Cueing.

(II) Hands-on.

(III) Monitoring.

(IV) Reassurance.

(V) Redirection.

(VI) Support.

(iv) Minimal Assist: The individual needs assistance at least one day each month to ensure they are able to meet their basic health and safety needs because they are unable to act on the need for self-preservation or they are unable to understand the need for self-preservation. The need may be event specific.

(v) Substantial Assist: The individual requires assistance because they are unable to act on the need for self-preservation nor understand the need for self-preservation at least daily.

(vi) Full Assist: The individual requires assistance to ensure that they meet their basic health and safety needs throughout each day. The individual is not able to be left alone without risk of harm to themselves or others or the individual would experience significant negative health outcomes. This does not include assistance types of support or monitoring.

(B) DECISION-MAKING. Decision-making means an individual’s ability to make everyday decisions about ADLs, IADLs, and the tasks that comprise those activities. An individual needs assistance if that individual demonstrates they are unable to make decisions, needs help understanding how to accomplish the tasks necessary to complete a decision, or does not understand the risks or consequences of their decisions.

(i) Decision-making includes the following assistance types, unless otherwise indicated in the assist definitions:

(I) Cueing.

(II) Hands-on.

(III) Monitoring.

(IV) Redirection.

(V) Support.

(ii) Minimal Assist: The individual requires assistance at least one day each month with decision-making. The need may be event specific.

(iii) Substantial Assist: The individual requires assistance in decision-making and completion of ADL and IADL tasks at least daily.

(iv) Full Assist: The individual requires assistance throughout each day to make decisions, understand the tasks necessary to complete ADLs and IADLs critical to one’s health and safety. The individual may not be left alone without risk of harm to themselves or others or the individual would experience significant negative health outcomes. This does not include assistance types of support or monitoring.

(C) ABILITY TO MAKE SELF-UNDERSTOOD. Ability to make self-understood means an individual’s cognitive ability to communicate or express needs, opinions, or urgent problems, whether in speech, writing, sign language, body language, symbols, pictures, or a combination of these including use of assistive technology. An individual with a cognitive impairment in this component demonstrates an inability to express themselves clearly to the point their needs cannot be met independently.

(i) Ability to make self-understood does not include the need for assistance due to language barriers or physical limitations to communicate.

(ii) Ability to make self-understood includes the following assistance types, unless otherwise indicated in the assist definitions:

(I) Cueing.

(II) Monitoring.

(III) Reassurance.

(IV) Redirection.

(V) Support.

(iii) Minimal Assist: The individual requires assistance at least one day each month in finding the right words or in finishing their thoughts to ensure their health and safety needs. The need may be event specific.

(iv) Substantial Assist: The individual requires assistance to communicate their health and safety needs at least daily.

(v) Full Assist: The individual requires assistance throughout each day to communicate and is rarely or never understood and cannot be left alone without risk of harm to themselves or others or the individual would experience significant negative health outcomes. Full assist includes hands on assistance in addition to the assist definition included in paragraph (C). This does not include assistance types of support or monitoring.

(D) CHALLENGING BEHAVIORS. Challenging Behaviors means an individual exhibits behaviors that negatively impact their own, or others’, health or safety. An individual who requires assistance with challenging behaviors does not understand the impact or outcome of their decisions or actions.

(i) Challenging behaviors include, but are not limited to, those behaviors that are verbally or physically aggressive and socially inappropriate or disruptive.

(ii) Challenging behaviors does not include the individual exhibiting behaviors when the individual understands the potential risks and consequences of their actions.

(iii) Challenging behaviors includes the following assistance types, unless otherwise indicated in the assist definitions:

(I) Cueing.

(II) Hands-on.

(III) Monitoring.

(IV) Redirection.

(iv) Minimal Assist: The individual requires assistance at least one day each month dealing with a behavior that may negatively impact their own or others’ health or safety. The individual sometimes displays challenging behaviors, but can be distracted and is able to self-regulate behaviors with reassurance or cueing. Minimal assist includes reassurance assistance.

(v) Substantial Assist: The individual requires assistance in managing or mitigating their behaviors at least daily. The individual displays challenging behaviors and assistance is needed because the individual is unable to self-regulate the behaviors and does not understand the consequences of their behaviors.

(vi) Full Assist: The individual displays challenging behaviors that require additional support to prevent significant harm to themselves or others. The individual needs constant assistance to the level that the individual may not be left alone without risk of harm to themselves or others or the individual would experience significant negative health outcomes. This does not include assistance types of monitoring.

(4) Dressing and Grooming: This activity of daily living is comprised of two components: dressing and grooming. To be considered Assist, the individual must require assistance in dressing or full assistance in grooming. To be considered Full Assist the individual must require full assistance in dressing:

(a) Dressing is comprised of three tasks; putting on clothing, taking off clothing, and putting on or taking off shoes and socks. This includes, but is not limited to, the consideration of an individual’s ability to use clothing with buttons, zippers, and snaps, and reflects the individual’s choice and reasonable preferences.

(A) Assist: Even with assistive devices, the individual is unable to accomplish some tasks of dressing without the assistance of another person at least one time each week totaling four days per month. This means hands-on assistance, cueing, or stand-by presence during the activity.

(B) Full Assist: Even with assistive devices, the individual is unable to accomplish any tasks of dressing without the assistance of another person. This means the individual needs hands-on assistance through all tasks of the activity, every time the activity is attempted.

(b) Grooming means the tasks of nail and hair care based on the individual’s reasonable personal preferences. This includes, but is not limited to, tasks of clipping and filing both toe nails and finger nails, and brushing, combing, braiding, or otherwise maintaining one’s hair or scalp.

(A) Assist: Even with assistive devices, the individual is unable to accomplish tasks of grooming, without the assistance of another person at least one time each week totaling four days per month. This means hands-on assistance, cueing, or stand-by presence during the activity.

(B) Full Assist: Even with assistive devices, the individual is unable to perform any tasks of grooming without the assistance of another person. This means the individual needs hands-on assistance of another person through all tasks of the activity, every time the activity is attempted.

(5) Eating means the tasks of eating, feeding, nutritional IV set up, or feeding tube set-up by another person and may include using assistive devices.

(a) Assist: When eating, the individual requires another person to be within sight and immediately available to actively provide hands-on assistance with feeding, special utensils, or immediate hands-on assistance to address choking, or cueing during the act of eating at least one time each week totaling four days per month during the assessment timeframe.

(b) Full Assist: When eating, the individual always requires one-on-one assistance through all tasks of the activity for direct feeding, constant cueing to prevent choking or aspiration every time the activity is attempted.

(6) Elimination is comprised of three components, which are bladder, bowel, and toileting. To be considered assist, the individual must require assistance in at least one of the three components inside the home or care setting. To be considered full assist the individual must require full assistance in any of the three components inside the home or care setting. Dialysis care needs are not assessed as part of elimination.

(a) Bladder means the tasks of catheter care and ostomy care. The tasks of catheter or ostomy care are specific to the individual.

(A) Assist: Even with assistive devices, the individual requires hands-on assistance with a task of bladder at least one day each week totaling four days per month during the assessment timeframe.

(B) Full Assist: The individual requires hands-on assistance of another person to complete all tasks of bladder care every time the task is attempted even with assistive devices.

(b) Bowel means the tasks of digital stimulation, suppository insertion, ostomy care, and enemas.

(A) Assist: Even with assistive devices, the individual requires hands-on assistance with a task of bowel care at least one day each week totaling four days per month during the assessment timeframe.

(B) Full Assist: The individual requires hands-on assistance of another person to complete all tasks of bowel care every time the task is attempted, even with assistive devices.

(c) Toileting means the assessed tasks of cleansing after elimination, changing soiled incontinence supplies or soiled clothing, adjusting clothing to enable elimination, or cueing to prevent incontinence.

(A) Assist: Even with assistive devices, the individual requires hands-on assistance from another person with a task of toileting or cueing to prevent incontinence at least one day each week totaling four days per month during the assessment timeframe.

(B) Full Assist: The individual is unable to accomplish all tasks of toileting without the assistance of another person. This means the individual needs assistance of another person through all tasks of the activity, every time the activity is attempted.

(7) Mobility is comprised of two components, which are ambulation and transfer. The activity of mobility is organized into three assistance levels. To be considered Minimal Assist, the individual must require minimal assistance in ambulation. To be considered Substantial Assist, the individual must require substantial assistance with ambulation or an assist with transfer. To be considered Full Assist, the individual must require full assistance with ambulation or transfer.

(a) Mobility does not include getting in and out of a motor vehicle, or getting in or out of a bathtub or shower.

(b) For the purposes of this rule, inside the home or care setting, means inside the entrance to the individual's home or apartment unit or inside the care setting (as defined in OAR 411-015-0005). Courtyards, balconies, stairs or hallways exterior to the doorway of the home or apartment unit are not considered inside.

(c) A history of falls with an inability to rise without the assistance of another person, or with negative physical health consequences, may be considered in assessing ambulation or transfer if they occur within the assessment time frame. Falls prior to the assessment time frame, or the need for prevention of falls alone, even if recommended by medical personnel, is not sufficient to qualify for assistance in ambulation or transfer.

(d) Ambulation means the tasks of moving around inside and outside the home or care setting. This includes assessing the individual’s needs after taking into consideration their level of independence while using assistive devices such as walkers, canes, crutches, manual and electric wheelchairs, and motorized scooters. Ambulation does not include exercise or physical therapy.

(A) Minimal Assist: Even with assistive devices, the individual requires hands-on assistance from another person to ambulate outside the home or care setting at least once each week, totaling four days per month. The individual requires hands-on assistance from another person to ambulate inside their home or care setting less than one day each week.

(B) Substantial Assist: Even with assistive devices the individual requires hands-on assistance from another person to ambulate inside their home or care setting at least one day each week totaling four days per month.

(C) Full Assist: Even with assistive devices, the individual requires hands-on assistance from another person to ambulate every time the activity is attempted. Individuals who are confined to bed are a full assist in ambulation.

(e) Transfer means the tasks of moving to or from a chair, bed, toileting area, or wheelchair using assistive devices, if needed. This includes assessing one’s ability to transfer from areas used on a daily or regular basis, such as sofas, chairs, recliners, beds, and other areas inside the home or care setting based on their reasonable personal preferences. When individuals are confined to their bed or a wheelchair, repositioning is also considered as a transfer task. This assistance must be required because of the individual's physical limitations, not their physical location or personal preference.

(A) Assist: Even with assistive devices, the individual requires hands-on assistance with a task of transferring inside the home or care setting at least one day each week totaling at least four days per month.

(B) Full Assist: The individual requires hands-on assistance from another person every time the activity is attempted, even with assistive devices.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 39-2018, amend filed 11/15/2018, effective 11/18/2018
APD 12-2018, temporary amend filed 05/23/2018, effective 05/23/2018 through 11/18/2018
APD 10-2018, amend filed 03/28/2018, effective 03/29/2018
APD 19-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 03/29/2018
APD 35-2014, f. & cert. ef. 10-1-14
APD 9-2014(Temp), f. 4-17-14, cert. ef. 4-21-14 thru 10-18-14
SPD 19-2006, f. 5-26-06, cert. ef. 6-1-06

Or. Admin. R. 411-015-0007 Instrumental Activities of Daily Living

(1) "Instrumental Activities of Daily Living (IADL)" or "Self-Management tasks" consists of housekeeping including laundry, shopping, transportation, medication management and meal preparation.

(2) Evaluation of the individual’s needs for assistance in Instrumental Activities of Daily Living is based on:

(a) The individual’s abilities rather than the services provided; and

(b) How the individual functioned during the thirty days prior to the assessment date, with consideration of how the person is likely to function in the thirty days following the assessment date; and

(c) Evidence of the actual or predicted need for assistance of another person within the assessment time frame and can not be based on potential or preventative needs.

(3) "Independent" means the individual does not meet the definition of "Assist" or "Full Assist" for IADLs as defined in this rule.

(4) "Housekeeping" means the ability to maintain the interior of the individual’s residence for the purpose of health and safety. Housekeeping includes activities such as wiping surfaces, cleaning floors, making the individual’s bed, cleaning dishes, taking out the garbage and dusting. Housekeeping does not include pet care or home repair. Only the housekeeping activities related to the eligible individual’s needs may be considered in housekeeping. Housekeeping needs of roommates, guests, family members or other residents of the household can not be considered.

(a) Assist: Even with assistive devices, the individual is unable to accomplish some tasks of housekeeping without the assistance of another person.

(b) Full Assist: Full assist means the individual needs assistance of another person through all phases of the activity, every time the activity is attempted.

(5) "Laundry" means the ability to gather and wash soiled clothing and linens, use washing machines and dryers, hang clothes, fold and put away clean clothing and linens. For service planning, laundry needs are included in Housekeeping.

(a) Assist: Even with assistive devices, the individual is unable to accomplish some tasks of laundry without the assistance of another person.

(b) Full Assist: Full assist means the individual needs assistance of another person through all phases of the activity, every time the activity is attempted.

(6) "Meal Preparation" means the ability to safely prepare food to meet the basic nutritional requirements of the individual. It includes cutting food and placing food, dishes and utensils within reach for eating.

(a) Meal Preparation for breakfast, lunch and dinner/supper is assessed for each meal.

(b) When assessing and developing service plans, dinner/supper is considered as the individual’s main meal of the day, regardless of the time the meal is served or eaten.

(c) An individual who needs assistance with meal preparation and who meets the criteria established in OAR 411-040-0000 may receive home delivered meals, if available in the individual's local area. Even with home delivered meal service, an individual may still meet the assistance or full assistance meal preparation criteria in this rule if the individual is unable to accomplish some or all of the meal preparation tasks.

(d) Set-up for tube feeding is assessed in Eating per OAR 411-015-0005.

(e) Assist: Even with assistive devices, the individual is unable to accomplish some tasks of meal preparation without the assistance of another person.

(f) Full Assist: Full assist means the individual needs assistance of another person through all phases of the activity, every time the activity is attempted.

(7) "Medication Management" means the ability to order, organize and administer prescribed medications. Administering prescribed medications includes pills, drops, ointments, creams, injections, inhalers and suppositories unrelated to bowel care. Administering as a paid service means set-up, reminding, cueing, checking for effect and monitoring for choking while taking medications. Oxygen management is included in medication management. Oxygen management means assisting with the administration of oxygen, monitoring the equipment and assuring adequate oxygen supply.

(a) Assist: Even with assistive devices, the individual is unable to accomplish some tasks of medication management without the assistance of another person.

(b) Full Assist: Full assist means the individual needs assistance of another person through all phases of the activity, every time the activity is attempted.

(8) "Shopping" means the ability to purchase goods that are necessary for the health and safety of the individual being assessed and are related to the individual’s service plan. Goods that are related to the service plan include items such as food (meal preparation), clothing (dressing), and medicine (medication management).

(a) Assist: Even with assistive devices, the individual is unable to accomplish some tasks of shopping without the assistance of another person.

(b) Full Assist: Full assist means the individual needs assistance of another person through all phases of the activity, every time the activity is attempted.

(9) "Transportation" means, assuming transportation is available, the ability to arrange rides, the ability to get in or out of a vehicle, and the need for assistance during a ride. The need for assistance during a ride means assistance for a physical or cognitive need such as spasticity, memory impairment, aspiration, choking or seizure. Transportation as a paid service means in accordance with a plan of care, assisting an individual during a ride, assisting an individual to get in or out of a vehicle, or arranging a ride for an individual. Transportation does not include mileage reimbursement.

(a) Assist: Even with assistive devices, the individual is unable to accomplish some of the tasks of transportation without the assistance of another person.

(b) Full Assist: Full assist means the individual needs assistance of another person through all phases of the activity, every time the activity is attempted.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 16-2006, f. 4-27-06, cert. ef. 5-1-06

Or. Admin. R. 411-015-0008 Assessments

(1) ASSESSMENT.

(a) The assessment process:

(A) Identifies an individual's ability to fully perform in a safe and dignified manner, comparable with how tasks would be performed by an individual not receiving Long Term Care Services and Supports (LTSS), the tasks described within activities of daily living in OAR 411-015-0006 and instrumental activities of daily living in OAR 411-015-0007;

(B) Determines an individual's ability to address health and safety concerns; and

(b) A case manager must conduct an assessment in accordance with the standards of practice established by the Department.

(c) A case manager must assess an individual's abilities, regardless of architectural modifications, assistive devices, or services provided in a care setting, alternative service resources, or other community providers.

(d) The time frame of reference for evaluation is 30 days prior to the assessment date, with consideration of how the individual is likely to function in the 30 days following the assessment date.

(A) To be eligible, an individual must demonstrate the need for assistance of another person within the assessment time frame and expect the need to be on-going beyond the assessment time frame.

(B) The time frame for assessing the cognition activity of daily living may be extended as described in OAR 411-015-0006.

(e) The assessment must be conducted at least annually, or when requested by an individual, using a standardized assessment tool, approved by a Department case manager, or other qualified Department or AAA representative.

(f) The initial assessment must be conducted face to face in an individual's home or care setting.

(g) All re-assessments must be conducted face to face in an individual's home or care setting unless there is a compelling reason to meet elsewhere and the individual requests an alternative location. Case managers must visit an individual's home or care setting to complete the re-assessment and identify service plan needs, as well as safety and risk concerns.

(A) Individuals must be sent a notice of the need for re-assessment a minimum of 14 days in advance.

(B) Re-assessments requested by an individual or their representative or based on a change in the individual's condition or service needs, are exempt from the 14-day advance notice requirement.

(h) An individual may request the presence of any person of their choice at any assessment.

(i) Assessment times must be scheduled within business days and hours unless extraordinary circumstances necessitate an alternate time. If an alternate time is necessary, an individual must request the after-hours appointment, and coordinate a mutually acceptable appointment time with the local Department or AAA office.

(j) An individual, or the individual's representative, has the responsibility to participate in and provide information necessary to, complete assessments and re-assessments within the time frame requested by the Department.

(A) Failure to participate in the assessment or re-assessment process or to provide requested assessment or re-assessment information within the application time frame results in a denial of service eligibility.

(B) The Department may allow additional time if circumstances beyond the control of the individual, or the individual's representative, prevent timely participation or submission of information.

(2) SERVICE PLAN.

(a) An individual being assessed, others identified by the individual, and a case manager must consider the service options as well as assistive devices, architectural modifications, and other alternative service resources as defined in OAR 411-015-0005 to meet the individual's service needs identified in the assessment process.

(b) A case manager is responsible for:

(A) Determining eligibility for specific services;

(B) Presenting service options, resources, and alternatives to an individual to assist the individual in making informed choices and decisions;

(D) Assessing the cost effectiveness of an individual's service plan.

(d) An eligible individual, or the individual's representative, is responsible for choosing and assisting in developing less costly service alternatives.

(e) The service plan payment must be considered full payment for home and community-based services rendered to Medicaid or Healthier Oregon recipients. Under no circumstances, may any provider demand or receive additional payment for home and community-based services authorized by the Department from an eligible individual or any other source.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 58-2022, amend filed 12/22/2022, effective 12/23/2022
APD 25-2022, temporary amend filed 06/14/2022, effective 07/01/2022 through 12/27/2022
APD 39-2018, amend filed 11/15/2018, effective 11/18/2018
APD 12-2018, temporary amend filed 05/23/2018, effective 05/23/2018 through 11/18/2018
APD 35-2014, f. & cert. ef. 10-1-14
SPD 45-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 19-2006, f. 5-26-06, cert. ef. 6-1-06

Or. Admin. R. 411-015-0010 Priority of Paid Services

To determine the service priority level, an individual must be determined eligible, using the Department's standardized assessment tool, by meeting at least the requirements for Assist or Full Assist in activities of daily living as defined in OAR 411-015-0006, in the following order and as designated in OAR 411-015-0015.

(1) Requires Full Assistance in Mobility, Eating, Elimination, and Cognition.

(2) Requires Full Assistance in Mobility, Eating, and Cognition.

(3) Requires Full Assistance in Mobility, or Cognition, or Eating.

(4) Requires Full Assistance in Elimination.

(5) Requires Substantial Assistance with Mobility, Assistance with Elimination and Assistance with Eating.

(6) Requires Substantial Assistance with Mobility and Assistance with Eating.

(7) Requires Substantial Assistance with Mobility and Assistance with Elimination.

(8) Requires Minimal Assistance with Mobility and Assistance with Eating and Elimination.

(9) Requires Assistance with Eating and Elimination.

(10) Requires Substantial Assistance with Mobility.

(11) Requires Minimal Assistance with Mobility and Assistance with Elimination.

(12) Requires Minimal Assistance with Mobility and Assistance with Eating.

(13) Requires Assistance with Elimination.

(14) Requires Assistance with Eating.

(15) Requires Minimal Assistance with Mobility.

(16) Requires Full Assistance in Bathing or Dressing.

(17) Requires Assistance in Bathing or Dressing.

(18) Individuals assessed with ADL needs not included in SPL 1-17 or those with medical or medication management needs.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 58-2022, amend filed 12/22/2022, effective 12/23/2022
APD 25-2022, temporary amend filed 06/14/2022, effective 07/01/2022 through 12/27/2022
SPD 19-2006, f. 5-26-06, cert. ef. 6-1-06
SPD 8-2004, f. & cert. ef. 4-27-04
SPD 16-2003(Temp), f. & cert. ef. 10-27-03 thru 4-23-04
SPD 12-2003, f. 5-30-03, cert. ef. 6-4-03
SDSD 11-2002(Temp), f. 12-5-02, cert. ef. 12-6-02 thru 6-3-03
SSD 21-1991, f. 12-31-91, cert. ef. 1-1-92, Renumbered from 411-015-0000(3)
SSD 12-1991(Temp), f. 6-28-91, cert. ef. 7-1-91
SSD 12-1987, f. 12-31-87, cert. ef. 1-1-88
SSD 9-1986, f. & cert. ef. 7-1-86
SSD 5-1986, f. & cert. ef. 4-14-86
SSD 3-1985, f. & cert. ef. 4-1-85

Or. Admin. R. 411-015-0015 Current Limitations

(1) The Department has the authority to establish, by administrative rule, service eligibility within which to manage the Department's limited resources. The Department is currently able to serve:

(a) Individuals determined eligible for the Medicaid OHP Plus benefit package who are assessed as meeting at least one of the service priority levels (1) through (13) as described in OAR 411-015-0010.

(b) Individuals eligible for Oregon Project Independence funded services, if the individual meets at least one of the service priority levels (1) through (18) of OAR 411-015-0010.

(c) Individuals needing risk intervention services in areas designated to provide such services. Individuals with the lowest service priority level number under OAR 411-015-0010 are served first.

(2) Individuals 65 years of age or older, determined eligible for developmental disability services, or having a primary diagnosis of a mental or emotional disorder, are eligible for nursing facility or home and community-based services if:

(a) The individual meets section (1) of this rule; and

(b) The individual is not in need of specialized mental health treatment services or other specialized Department residential program interventions as identified through the mental health assessment process or PASRR process described in OAR 411-070-0043.

(3) Individuals under 65 years of age, determined eligible for developmental disability services, or having a primary diagnosis of a mental or emotional disorder, are not eligible for Department nursing facility services unless determined appropriate through the PASRR process described in OAR 411-070-0043.

(4) Individuals under 65 years of age determined to be eligible for developmental disability services are not eligible for home and community-based services administered by the Department's Aging and People with Disabilities. Eligibility for home and community-based services for individuals with intellectual or developmental disabilities is determined by the Department's Office of Developmental Disability Services or designee.

(5) Individuals under 65 years of age who have a diagnosis of mental or emotional disorder or substance abuse related disorder are not eligible for home and community-based services administered by the Department's Aging and People with Disabilities unless:

(a) The individual has a medical non-psychiatric diagnosis or physical disability;

(b) The individual's need for services is based on his or her medical, non-psychiatric diagnosis, or physical disability; and

(c) The individual provides supporting documentation demonstrating that his or her need for services is based on the medical, non-psychiatric diagnosis, or physical disability. The Department authorizes documentation sources through approved and published policy transmittals.

(6) Home and community-based services are not intended to replace a natural support system as defined by OAR 411-015-0005. Paid support is provided if a natural support is unwilling or unable to provide identified services.

(7) Individuals with excess income must contribute to the cost of service pursuant to OAR 461-160-0610 and 461-160-0620.

History

Statutory/Other Authority: ORS 410.070 & 411.070
Statutes/Other Implemented: ORS 410.070
APD 58-2022, amend filed 12/22/2022, effective 12/23/2022
APD 25-2022, temporary amend filed 06/14/2022, effective 07/01/2022 through 12/27/2022
APD 35-2014, f. & cert. ef. 10-1-14
APD 9-2014(Temp), f. 4-17-14, cert. ef. 4-21-14 thru 10-18-14
SPD 45-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 19-2006, f. 5-26-06, cert. ef. 6-1-06
SPD 8-2006, f. 1-26-06, cert. ef. 2-1-06
SPD 1-2005, f. & cert. ef. 1-4-05
SPD 29-2004(Temp), f. & cert. ef. 8-6-04 thru 1-3-05
SPD 20-2004(Temp), f. & cert. ef. 7-7-04
SPD 8-2004, f. & cert. ef. 4-27-04
SPD 5-2004(Temp), f. & cert. ef. 3-23-04 thru 4-27-04
SPD 16-2003(Temp), f. & cert. ef. 10-27-03 thru 4-23-04
SPD 12-2003, f. 5-30-03, cert. ef. 6-4-03
SPD 6-2003(Temp), f. & cert. ef. 3-20-03 thru 6-3-03
SPD 5-2003(Temp), f. & cert. ef. 3-12-03 thru 6-3-03
SDP 3-2003(Temp), f. 2-14-03, cert. ef. 2-18-03 thru 6-3-03
SPD 1-2003(Temp), f. 1-7-03, cert. ef. 2-1-03 thru 6-3-03
SDSD 11-2002(Temp), f. 12-5-02, cert. ef. 12-6-02 thru 6-3-03
SSD 1-1993, f. 3-19-93, cert. ef. 4-1-93
SSD 21-1991, f. 12-31-91, cert. ef. 1-1-92, Renumbered from 411-015-0000(4)
SSD 12-1991(Temp), f. 6-28-91, cert. ef. 7-1-91
SSD 12-1987, f. 12-31-87, cert. ef. 1-1-88
SSD 9-1986, f. & cert. ef. 7-1-86
SSD 5-1986, f. & cert. ef. 4-14-86
SSD 3-1985, f. & cert. ef. 4-1-85

Or. Admin. R. 411-015-0030 Extended Waiver Eligibility (EWE)

(1) An individual determined to no longer meet the criteria in 411-015-0100 and assessed as Service Priority Level (SPL) 14 - 18 through the assessment process outlined in 411-015-0008 may be eligible to continue receiving Long-Term Support Services (LTSS) when one of the following circumstances causes unmet needs or health and safety risks, which would result in the individual being institutionalized or hospitalized within 30 days:

(a) Lack of access to shelter and support would cause the individual to deteriorate or decompensate;

(b) Without supports, the individual would lack access to safe housing or has a documented history of eviction or threats of eviction that would lead the individual to deteriorate or decompensate; or

(2) An individual who is approved for EWE may receive the approved services and supports as defined in OAR 411-027-0020 for six calendar months from the effective date.

(3) An individual meeting the criteria for EWE must have a re-assessment, as described in OAR 411-015-0008, completed no less frequently than every 12 calendar months, or when the individual’s needs or circumstances change.

(4) EWE may be renewed for an additional six calendar months if the individual or their representative demonstrates:

(a) The individual or representative is actively working with their assigned case manager to develop a safe plan to address the circumstances identified in section (1)(a) - (c) of this rule; and

(b) The individual or representative shows demonstrable progress towards implementing the plan developed in subsection (3)(a) of this rule.

(5) Case managers may deny initial EWE if the individual does not meet the criteria in (1) of this rule.

(6) Case managers may deny renewals of EWE if the individual does not meet the criteria in (1) of this rule, or if the individual or representative does not meet the criteria in section (4) of this rule.

(7) If the case manager does not deny EWE, they must submit initial and renewal requests for approval of EWE to the Central Office no later than two weeks prior to the service plan being closed.

(8) Initial and ongoing eligibility for EWE shall be determined by APD central office on a case-by-case basis.

(a) Ongoing eligibility will be determined based upon an assessment and a review of the individual’s progress towards mitigating the identified risk. In order to remain eligible, the individual must show they have been unable to mitigate the risks identified in (1) of this rule, through development and implementation of a transition plan.

(b) In order to ensure engagement, case managers must have direct contact with an individual or their representative each month as described in OAR 411-028-0020(1). Case managers must narrate the monthly contacts in Oregon ACCESS and the steps or actions being taken to mitigate the identified risk.

(9) An individual receiving Medicaid OHP Plus under OAR chapter 410, division 200 is not eligible for EWE.

(10) An individual receiving home and community-based services as a recipient of Healthier Oregon may be eligible for EWE.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 58-2022, amend filed 12/22/2022, effective 12/23/2022
APD 25-2022, temporary amend filed 06/14/2022, effective 07/01/2022 through 12/27/2022
APD 29-2019, amend filed 07/30/2019, effective 08/25/2019
APD 14-2019, temporary amend filed 02/27/2019, effective 02/27/2019 through 08/25/2019
APD 10-2018, adopt filed 03/28/2018, effective 03/29/2018
APD 27-2017, temporary adopt filed 11/29/2017, effective 11/29/2017 through 03/29/2018
APD 19-2017, temporary adopt filed 09/29/2017, effective 10/01/2017 through 03/29/2018

Or. Admin. R. 411-015-0100 Eligibility for Nursing Facility or Home and Community-Based Services

(1) To be eligible for nursing facility services or home and community-based services, a person must:

(a) Be age 18 or older.

(b) Be eligible for the Medicaid OHP Plus benefit package.

(A) Individuals receiving Medicaid OHP Plus under OAR 410-200 coverage for services in a nonstandard living arrangement as defined in OAR 461-001-0000 are subject to the requirements in the same manner as if they were requesting these services under OSIPM, including the rules regarding:

(i) The transfer of assets as set forth in OAR 461-140-0210 to 461-140-0300; and

(ii) The equity value of a home which exceeds the limits as set forth in OAR 461-145-0220.

(B) When an individual is disqualified for a transfer of assets, a notice for transfer of assets is required in accordance with OAR 461-175-0310.

(C) When an individual is determined ineligible for the equity value of a home, a notice for being over resources is required in accordance with 461-175-0200.

(c) Meet the functional impairment level within the service priority levels currently served by the Department as outlined in OAR 411-015-0010 and the requirements in OAR 411-015-0015.

(2) To be eligible for services paid through the Spousal Pay Program, an individual must meet the requirements listed above in section (1) of this rule in addition to the requirements in OAR 411-030-0080.

(3) Individuals who are age 17 or younger and reside in a nursing facility, are eligible for nursing facility services only and are not eligible to receive home and community-based services administered by the Department's Aging and People with Disabilities.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 58-2022, amend filed 12/22/2022, effective 12/23/2022
APD 25-2022, temporary amend filed 06/14/2022, effective 07/01/2022 through 12/27/2022
APD 9-2015, f. 3-30-15, cert. ef. 4-3-15
APD 49-2014(Temp), f. 12-30-14, cert. ef. 1-1-15 thru 6-29-15
APD 35-2014, f. & cert. ef. 10-1-14
APD 9-2014(Temp), f. 4-17-14, cert. ef. 4-21-14 thru 10-18-14
SPD 45-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 19-2006, f. 5-26-06, cert. ef. 6-1-06
SPD 19-2005, f. & cert. ef. 12-29-05
SPD 1-2005, f. & cert. ef. 1-4-05
SPD 29-2004(Temp), f. & cert. ef. 8-6-04 thru 1-3-05
SPD 8-2004, f. & cert. ef. 4-27-04
SPD 17-2003(Temp), f. 10-31-03, cert. ef. 11-1-03 thru 4-28-04
SPD 12-2003, f. 5-30-03, cert. ef. 6-4-03
SPD 1-2003(Temp), f. 1-7-03, cert. ef. 2-1-03 thru 6-3-03
SDSD 11-2002(Temp), f. 12-5-02, cert. ef. 12-6-02 thru 6-3-03
SSD 13-1991, f. 6-28-91, cert. ef. 7-1-91
SSD 7-1991(Temp), f. & cert. ef. 4-1-91

Division 16 OREGON PROJECT INDEPENDENCE - MEDICAID (OPI-M)

Or. Admin. R. 411-016-0000 Purpose

The purpose of the Oregon Project Independence-Medicaid program is to:

(1) Provide limited, non-medical assistance to delay or prevent the need for full Medicaid long term services and supports under Oregon’s 1915(c) waiver authority or any other state plan authorities;

(2) Optimize and maintain an eligible individual’s personal resources and natural supports;

(3) Provide access to limited, preventive in-home services to older adults and adults with disabilities who require assistance with activities of daily living; and

(4) Develop and maintain the ability of individual, using natural supports, to meet their personal needs and support the health and well-being of unpaid caregivers to sustain caregiving relationships.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0005 Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 016:

(2) "Adult" means any person at least 18 years of age.

(3) “Adult Day Services (ADS) Program” means a community-based group program designed to meet the needs of adults needing assistance with ADLs described in OAR chapter 411, division 066.

(4) "Alternative Service Resources" means other possible resources for the provision of services to meet an individual's needs. Alternative service resources include, but are not limited to, natural supports, risk intervention services, or other community supports. Alternative service resources are not paid by Medicaid.

(5) "Area Agency on Aging (AAA)" means the Department designated agency charged with the responsibility to provide a comprehensive and coordinated system of services to older adults and adults with disabilities in a planning and service area. The term Area Agency on Aging (AAA) is inclusive of both Type A and Type B AAAs as defined in ORS 410.040 to 410.300.

(a) “Type A Area Agency on Aging” means an Area Agency on Aging for which either the local government or the area agency board does not agree to accept local administrative responsibility for Title XIX Medicaid, except OPI-M; and that provides a service to adults.

(b) “Type B Area Agency on Aging” means an Area Agency on Aging:

(A) For which the local government agrees to accept local administrative responsibility for Title XIX Medicaid;

(B) That provides a service to older adults or to older adults and persons with disabilities who require services similar to those required by older adults; and

(i) Type B Contract- Staff are employed by the AAA and only administer Older Americans Act, Oregon Project Independence and Oregon Project Independence-Medicaid services case management services.

(6) "Assistive Devices" means any category of durable medical equipment, mechanical apparatus, electrical appliance, instrument of technology, service animal, general household items, or furniture used to assist and enhance an individual's independence in performing any activity of daily living.

(7) "Assistive Technology" means any item, piece of equipment, technology, system, whether acquired commercially, modified, or customized, that is used to achieve, increase, maintain, or improve the functional capabilities of an individual, that provides additional security and support to an individual, replaces the need for human interventions or enables an individual to self-direct their care and maximize their independence. Training on using the technology should be offered to the individual.

(8) "Assisted Transportation" means escort services that aid an individual who has difficulties (physical or cognitive) using regular vehicular transportation and includes those services and supports provided so that the individual may access their local community to engage in services necessary to meet their Activities of Daily Living (ADL) and Instrumental Activities of Daily Living (IADL). Assisted Transportation must be prior authorized by the Services Case Manager as part of a comprehensive service plan.

(9) "Care Setting" means a Medicaid contracted facility where a Medicaid eligible individual resides and receives services. Care settings include adult foster homes, residential care facilities, assisted living facilities, specialized living contracted residences, and nursing facilities.

(10) “Caregiver Education and Training” means education and training programs and services to increase an unpaid caregiver’s skills in providing care and supports unique to the consumer receiving unpaid caregiver services.

(11) "Case Management and Service Coordination" means a service designed to individualize and integrate social and health care options with an individual being served. The goal of service coordination is to provide access to an array of service options to assure appropriate levels of service and to maximize coordination in the service delivery system.

(12) "Chore Services" means assistance such as heavy housework, yard work, or sidewalk maintenance provided on an intermittent or one-time basis to assure health and safety.

(13) "Client Assessment and Planning System (CA/PS)" means:

(a) The single-entry data system used for -

(A) Completing a comprehensive and holistic assessment;

(B) Surveying an individual's physical, mental, and social functioning; and

(b) The CA/PS documents the level of need and calculates the individual's service priority level in accordance with these rules and accommodates individual participation in service planning.

(14) “Community Caregiver Supportive Services” means supports and services that assist the individual and their unpaid caregivers to sustain their caregiving relationship and natural support systems. These supportive services directly benefit the individual by sustaining the unpaid caregiver’s health, improving the unpaid caregiver’s wellbeing and reducing stress. This may help prevent abuse, neglect and transitions to more intensive levels of care.

(15) “Community Transportation” means non-medical transportation provided by a service provider with a Medicaid provider number and prior authorized as part of an OPI-M service plan by a Services Case Manager.

(16) “Conflict-free Case Management” means that assessment and coordination of services are separate from the delivery of services, with the goal to limit any conscious or unconscious bias a care manager or agency may have, and ultimately promote the individual’s choice and independence.

(17) “Conflict of Interest” means a situation exists in which a person is in a position to derive personal benefit from their actions or decisions made in their relationship or role with another individual. Note: It is always considered a conflict of interest if a paid provider is making/managing service plan/care-related decisions on behalf of a consumer (meaning the provider is acting as the Consumer’s authorized CE or Client Representative, OAR 411-031-0020(21), 411-031-0040(8)(b)(N), and 411-031-0050(3)(p)).

(18) “Cost Effectiveness or cost-effective” means being responsible and accountable with Department resources. This is accomplished by offering less costly, unduplicated alternatives when providing choices that adequately meet an individual’s service needs. Those choices consist of all available services under these rules, the utilization of assistive devices, natural supports, home modifications, housing accommodations and alternative service resources not paid for by the Department. Cost effectiveness means that more than one service is not authorized to meet the same needs.

(19) "Department" means the Oregon Department of Human Services (ODHS).

(20) “Electronic Visit Verification (EVV)” means an interface that records the homecare worker’s start time, end time, and geolocation for a service delivered by a homecare worker in real time.

(21) “Emergency Response Systems" mean a type of electronic back-up system that secures help for individuals in an emergency; ensures a consumer's safety in the community; and includes other reminders that help an individual with their activities of daily living and instrumental activities of daily living. This includes alert systems, units that are worn by the individual or are in the individual's home for the purpose of generating notification that an emergency has or may occur.

(22) "Evidence-Based Health Promotion" means individual or group programs that meet the requirements for the U.S. Administration on Community Living's Evidence-Based Definition or is an "evidence-based program" by any operating division of the U.S. Department of Health and Human Services (HHS) and is shown to be effective and appropriate for older adults.

(23) “Fiscal Intermediary” means a state contracted provider who manages payments, makes payments, and accounts for expenditures made on behalf of the consumer as directed by the consumer or authorized representative and approved by the case manager.

(24) "Functional Impairment" means an individual's pattern of mental and physical limitations that restricts the individual's ability to perform activities of daily living and instrumental activities of daily living without the assistance of another person.

(25) "Health and Safety" means the essential actions necessary to meet an individual’s health care, food, shelter, clothing, personal hygiene and other care needs without which serious physical injury or illness is likely to occur that would result in hospitalization, death or permanent disability.

(26) "Home" or “In-Home” means a setting that exhibits the characteristics described in OAR 411-030-0033(2)(a) - (d).

(27) “Home Delivered Meals” for the purpose of these rules means meals that are delivered by a home delivered meals provider with a Medicaid provider number to an eligible participant in their own home or apartment and meeting the criteria in OAR 411-040-0035.

(28) "Home Modifications" mean the changes made to adapt living spaces to meet specific service needs of eligible individuals with physical limitations to maintain their health, safety, and independence.

(29) “Homecare Worker” means a provider, as described in OAR 411-031-0040 (Consumer-Employed Provider Program), that is directly employed by an individual to provide hourly services to the eligible individual. The term homecare worker does not include an employee of an in-home care agency who is providing in-home services.

(30) “Household” means a group of individuals that live together within the same dwelling. For homeless individuals, the household consists of the individuals who consider themselves living together.

(31) “In-Home Care Agency” or “IHCA” means an agency as defined in OAR 333-536-0005 (Definitions) that is primarily engaged in providing in-home care services for compensation to an individual in that individual’s place of residence. “In-home care agency” does not include a home health agency or portion of an agency providing home health services.

(32) "In-Home Support and Personal Care Services" mean those services that meet an individual's assessed need related to activities of daily living and instrumental activities of daily living provided in the individual’s home or family’s home.

(33) "Individual" means an older adult or an adult with a disability applying for or eligible for services. The term “individual” is synonymous with "consumer" or "client".

(34) “Informed choices” or “Informed decisions” means the individual is independent in decision making as defined in OAR 411-015-0006(3)(f)(B) or has the assistance of a representative to assist them in decision making.

(35) “Instrumental Activities of Daily Living (IADL)” means those activities, other than activities of daily living, required by an individual to continue independent living. The definitions and parameters for assessing needs in IADL are identified in OAR 411-015-0007.

(36) "Long Term Care Community Nursing Services" mean a distinct set of services that focus on an individual’s chronic and ongoing health and activity of daily living needs. Long term care community nursing services include an assessment, monitoring, delegation, teaching, and coordination of services that addresses an individual’s health and safety needs in a Nursing Service Plan that supports individual choice and autonomy. The requirements in these rules are provided in addition to any nursing related requirements stipulated in the licensing rules governing the individual's place of residence.

(37) "Natural Supports" or "Natural Support System" means resources and supports (e.g., relatives, friends, significant others, neighbors, roommates, or the community) who are willing to voluntarily provide services to an individual without the expectation of compensation. Natural Supports are identified in collaboration with the individual and the potential natural support. The Natural Support is required to have or be able to readily acquire the skills, knowledge and ability to provide the needed services and supports.

(38) "Older Adult" means any person at least 60 years of age.

(39) "Oregon Project Independence- Medicaid (OPI-M)" means the services approved and funded by the Centers for Medicare and Medicaid Services (CMS) for eligible individuals in accordance with the 1115 demonstration waiver for the Oregon Project Independence-Medicaid program and including the services defined in these rules.

(40) “Pay Period” means specific two consecutive workweeks, defined by the Department, for a total of 14 calendar days.

(41) “Person-centered service planning” means a process for selecting and organizing the services and supports with an eligible individual which includes the personal preferences and choices of the individual as directed by the individual.

(42) “Representative” is the person appointed by the individual or a person with longstanding involvement in assuring the individual’s health, safety and welfare. For the purposes of these rules, representative also includes legal representatives and designated representatives.

(43) "Service Priority Level (SPL)" means the order in which Department and AAA Type B transfer staff identify individuals eligible for a nursing facility level of care, Oregon Project Independence, Oregon Project Independence-Medicaid or Medicaid home and community-based services in OAR 411-015-0010. A lower SPL number indicates greater or more severe functional impairment. The number is synonymous with the SPL.

(44) “Services Case Manager (SCM)” means an employee of a AAA or the Department who is providing OPI-M conflict-free case management. The SCM provides person-centered service planning for and with eligible individuals. This includes authorizing and implementing an individual's service plan and monitoring service provision as described in OAR chapter 411, division 016.

(45) “Supports for Consumer Direction” means activities to empower, train and inform individuals receiving in-home services regarding their rights, roles and responsibilities as employers of homecare workers, to empower the consumer to advocate for themselves in services and resources outside their service plan, such as health care and behavioral health services, housing, and transportation, and to help consumers manage their person–centered service plan, their personal goals and life experiences, ensuring the consumer’s health, safety, and overall wellbeing.

(46) "Title XIX Medicaid” means a joint federal and state funded program for medical assistance established by Title XIX of the Social Security Act as amended and administered in Oregon.

(47) "These Rules" means the rules in OAR chapter 411, division 016.

(48) "Undue Influence" means the process by which an individual uses their role, relationship and/or power to exploit the trust, dependency, and fear of another individual, to deceptively gain control over that individual’s decision making, finances, home, property, medication, social interaction, or ability to communicate with others. Exertion of undue influence may exist whether a consumer-employer willfully allows another individual to assume decision-making control. When someone is exercising undue influence over or has something to personally gain from the consumer -- this constitutes a conflict of interest.

(49) “Unpaid Caregiver” means a caregiver that meets the criteria in OAR 411-016-0130(1).

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0010 Scope of OPI-M Services Case Management

(1) Services Case Managers (SCMs) are responsible for:

(a) Person-centered service plan development including goals, preferences and plan monitoring;

(b) Presenting program options, service options, resources, and alternatives to an individual to assist the individual and their representative in making informed choices and decisions;

(A) Identifying and documenting risks;

(B) Working with an individual to eliminate or reduce risks;

(D) Monitoring risks at least quarterly and more frequently if needed; and

(E) Adjusting an individual's person-centered service plan as needed.

(d) Other program coordination such as helping an individual navigate or coordinate with other social, health, and assistance programs;

(e) Assisting with crisis response and intervention such as participating in problem resolution with an individual or the individual’s representative;

(f) Authorizing services to meet the service choices, assessed need and preferences of the individual, considering natural supports and other alternative service resources and service plan related notifications;

(g) Service provision issues such as assisting an individual with problem solving to resolve providers, services or hours issues that do not meet the individual's needs;

(h) Informing individuals of grievance and hearing rights and following grievance and hearing processes.

(i) Documentation of changes in condition, service plan adjustments and reasons for adjustments, service alternatives, completion of required forms and other service plan case management requirements including narration; and,

(j) Completing an Unpaid Caregiver assessment if Community Caregiver Supportive Services or Caregiver Education and Training is requested.

(2) Fiscal Intermediary Responsibilities: SCMs are responsible for the following tasks if fiscal intermediary services are available:

(a) Enrolling the individual into fiscal intermediary services;

(b) Coordinating and reviewing benefit expenditures;

(d) Problem solving and monitoring fiscal intermediary services defined in provider contracts.

(3) Case management services must meet the conflict-free case management expectations. When the only willing and qualified provider organization provides both case management and direct services, Department approved firewalls must be in place and followed to ensure a separation of functions within the organization. Conflict-free case management protects against conflicts of interest, fraud and misuse of funding to benefit a provider.

(4) Type B transfer AAA staff serving as OPI-M SCMs may also serve as Eligibility Case Managers as defined OAR 411-014-0005.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0020 Qualified Services Case Manager

Services Case Managers (SCMs) must meet the following criteria:

(1) Be employed by an Area Agency on Aging, the Department or a subcontractor of a Type B AAA transfer that was subcontracting to provide OPI case management prior to June 1, 2024.

(2) Have completed the Department required training for case managers; and

(3) The AAA or the Department has determined that the SCM has the skills, knowledge and ability for the SCM position and responsibilities.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0025 OPI-M Service Eligibility and Responsibilities of the Individual

(1) For ongoing approval of an OPI-M service plan, the individual must receive case management services and the individual or their representative must participate in the person-centered service planning process to maintain OPI-M eligibility.

(a) Individuals who do not have case management services or participate in the yearly person-centered service plan may have their OPI-M services end until the person-centered service plan is completed.

(b) Individuals remain eligible for OPI-M until either the end of their continuous eligibility period or they voluntarily withdraw.

(2) Individuals must participate in risk assessments and risk monitoring activities as a part of case management and service coordination. If individuals do not participate in the risk assessment and risk monitoring activities the case manager will continue to contact the individual at least once per month until services are added to the plan, the individual voluntarily withdraws or the end of the continuous eligibility period.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0030 Person-Centered Service Planning

(1) Services Case Managers (SCMs) must use a person-centered service planning process to develop person-centered service plans. The process must:

(a) Be directed by the individual and include people chosen by the individual;

(b) Occur at times and locations of convenience to the individual;

(d) Offer all available service options including assistive devices, home modifications and other alternative service resources as defined in OAR 411-014-0005 to meet the identified needs;

(e) Include assessing the cost effectiveness and sustainability of the plan;

(f) Result in authorization of the minimum level of services that the individual chooses and is eligible for, that are required to adequately meet the individual’s assessed needs or support the unpaid caregiver and caregiving relationship;

(g) Be documented in Oregon Access, CA/PS and other approved forms and systems.

(h) Local offices should work with participants to resolve service disagreements through local processes and the OPI-M grievance process. In the event there is no local level resolution, OPI-M participants have contested case hearing rights as described in OAR chapter 461, division 025.

(i) The SCM must contact the eligible individual within 14 days of the eligibility determination and complete the service plan within 30 days.

(2) The individual or individual’s representative is responsible for choosing and assisting in developing a cost-effective person-centered service plan.

(a) The case manager must ensure the individual’s preferences are represented in the plan and other involved parties do not exert undue influence.

(b) There must be no conflicts of interest between the individual and others involved in the service planning process.

(3) In developing the service plan, SCMs must address the:

(a) Personal preferences and cultural considerations of the individual; and

(b) Health and welfare of the individual.

(4) The process must use the language, format, and presentation methods appropriate for effective communication according to the needs, preferences, and abilities of the individual, and if applicable, representative of the individual.

(5) Eligible OPI-M consumers may choose one or more of the following services for their OPI-M service plan, if the requirements of the service are met, available and the services are authorized by the SCM:

(a) Adult day services;

(b) Assisted and community transportation;

(d) Caregiver education and training;

(e) Case management and service coordination;

(f) Chore services;

(g) Community Caregiver Supportive Services;

(h) Emergency response systems;

(i) Evidence-based health promotion services;

(j) Home delivered meals;

(k) Home modifications;

(l) In-Home services from either:

(A) A Homecare worker employed in the Consumer-Employed Provider Program in OAR 411-016-0075; or

(B) In-Home Care Agency;

(m) Long term care community nursing;

(n) Supports for Consumer Direction; and

(o) Special Medical Equipment.

(6) All services in the plan must be prior authorized by the Department or the Services Case Manager.

(7) The plan must include and document in CA/PS or Department approved forms the following:

(a) The goals, strengths and preferences of the individual, including but not limited to relationships, greater community participation, employment, healthcare and wellness, and education;

(b) The selected services and supports;

(d) Agreed upon contact frequency with the individual or representative, no less than quarterly;

(e) Risk assessment, factors and measures agreed upon to minimize risk;

(f) The assignment of the fiscal intermediary, if available; and

(g) For individuals, receiving Community Caregiver Supportive Services and Caregiver Education and Training, the Unpaid Caregiver assessment.

(8) The individual or their representative must sign the plan or may give verbal consent. Verbal consent must be documented in the case narrative.

(9) The SCM must monitor and may adjust the person- centered service plan:

(a) At the request of the individual or representative of the individual;

(b) When the circumstances or needs of the individual change;

(d) When other circumstances warrant change, including but not limited to provider availability or inability to meet client-employed provider requirements; or

(e) At least every 12 months.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0040 Service Plan Hours

(1) Through a person-centered planning process with the individual, the Services Case Manager (SCM) authorizes hours to address the individual’s unmet needs or to support the unpaid caregiver relationship.

(2) A service plan may have no more than a maximum total of 40 hours of in-home services including both ADL and IADL hours, per pay period.

(3) Hours are authorized to meet assessed ADL/IADL needs as defined in OAR 411-015-0006 and OAR 411-015-0007.

(4) Hours should reflect only the minimum necessary for health and safety that supplement supports provided by natural supports and alternative service resources. The hours authorized must be documented in the service plan form.

(5) For households with two or more eligible individuals receiving any combination of Medicaid funded or Oregon Project Independence in-home services, the service plan for each individual must avoid duplication of services.

(6) Hours authorized for assessed needs are paid at the rates in accordance with OAR 411-027-0170 for In-Home Care Agencies and for Homecare Workers at rates published on the current rate schedule or the current collective bargaining agreement between the Department of Administrative Services on behalf of the State of Oregon and the Oregon Homecare Commission and Service Employees International Union, Local 503, Oregon Public Employees Union.

(7) A provider may not receive payment from the Department for more than the total amount of in-home services hours authorized by the AAA or the Department on the service plan authorization form under any circumstances. All service payments must be prior authorized by a SCM or AAA or Department designated staff.

(8) Payment by the Department for In-Home services hours are only made for the tasks described in OAR 411-015-0006 and OAR 411-015-0007 as ADL or IADL tasks. Services must be authorized to meet the needs of an eligible individual and may not be provided to benefit an entire household.

(9) Respite hours may be authorized to replace an unpaid caregiver or natural supports providing ADL or IADL care who are temporarily unavailable to provide assistance. Respite hours must be included in the 40 in-home services hours limit.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0050 Limitations on In-Home Services Plans

(1) The AAA or Department must take necessary safeguards to protect an individual’s health, safety, and welfare when implementing an individual’s service plan in accordance with 42 CFR 441.302 and 42 CFR 441.570. When an individual with the ability to make an informed decision selects a service choice that jeopardizes health and safety, AAA or Department staff shall offer or recommend options to the individual to minimize those risks. For this rule, an “informed decision” means the individual understands the benefits, risks, and consequences of the service choice selected. Minimizing risks may include offering or recommending one or more of the following:

(a) Natural supports to help with safety or health emergencies;

(b) An emergency response system;

(d) Resources for emergency disaster planning;

(e) A referral for long term care community nursing services;

(f) Resources for provider and consumer training;

(g) Assistive devices; or

(h) Home modifications.

(2) The Department or a AAA with the approval of the Department may decide not to authorize a service provider, a service or a combination of services selected by an eligible individual or the individual’s representative when:

(a) There are dangerous conditions that jeopardize the health or safety of the individual and necessary safeguards cannot be taken to improve the situation;

(b) Services cannot be provided safely or adequately by the service provider based on:

(A) The extent of the individual’s service needs; or

(B) The choices or preferences of the eligible individual or the individual’s representative;

(c) Dangerous conditions jeopardize the health or safety of the service provider that is authorized and paid for by the Department, and necessary safeguards cannot be taken to minimize the dangers; or

(d) The individual does not have the ability to make an informed decision, does not have a representative to make decisions on their behalf, and the AAA or Department cannot take necessary safeguards to protect the safety, health, and welfare of the individual.

(3) The Services Case Manager (SCM) must present the individual or the individual’s representative with information on service alternatives and provide assistance to assess other choices when the service provider or service setting selected by the individual or the individual’s representative is not authorized. The SCM must document in the case file the service alternatives offered.

(4) The service plan payment is payment in full for the Oregon Project Independence-Medicaid services. Under no circumstances, may any Medicaid-paid provider demand or receive additional payment from an eligible individual, or other entity on behalf of the individual, for any services in the OPI-M service plan.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0075 Consumer-Employer Responsibilities

(1) CONSUMER-EMPLOYER RESPONSIBILITIES. To be eligible for OPI-M in-home services provided by a homecare worker, an individual or the individual’s representative must be able to:

(a) Locate, screen, and hire a qualified homecare worker;

(b) Supervise and train the homecare worker;

(d) Track the hours worked and verify the authorized hours completed by the homecare worker;

(e) Recognize, discuss, and attempt to correct any performance deficiencies with the homecare worker;

(f) Discharge an unsatisfactory homecare worker; and

(g) Follow all employer responsibilities required by law to ensure the workplace is safe from harassment.

(2) The Department may require individuals who have failed to meet the responsibilities in section (1) of this rule to designate a representative to exercise these responsibilities. A representative of an individual may not be a homecare worker providing In-Home services to the individual.

(a) Individuals who have failed to meet the responsibilities in section (1) of this rule and who do not have a representative are ineligible for in-home services provided by a homecare worker.

(b) Individuals must also be offered other available OPI-M service options to meet the individual’s service needs.

(3) An individual determined ineligible for in-home services provided by a homecare worker and who does not have a representative may request in-home services provided by a homecare worker at the individual’s next re-assessment, but no sooner than 12 months from the date the individual was determined ineligible.

(a) To reestablish eligibility for in-home services provided by a homecare worker, an individual must attend training and acquire, or otherwise demonstrate, the ability to meet the employer responsibilities in section (1) of this rule. Improvements in health and cognitive functioning, for example, may be factors in demonstrating the individual’s ability to meet the employer responsibilities in section (1) of this rule.

(b) If the Department determines an individual may not meet the individual’s employer responsibilities, the Department may require the individual to appoint an acceptable representative.

(4) The Department retains the right to approve the representative selected by an individual. Approval may be based on, but is not limited to, the representative’s criminal history, protective services history, or credible allegations of fraud or collusion in fraudulent activities involving a public assistance program.

(5) If an individual’s representative is unable to meet the employer responsibilities of section (1) of this rule, or the Department does not approve the representative, the individual must designate a different representative or select other available services.

(6) An individual with a history of credible allegations of fraud or collusion in fraud with respect to in-home services is not eligible for in-home services provided by a homecare worker.

(7) REPRESENTATIVE.

(a) The Department may require that an individual obtain a representative to act as the consumer-employer or for service planning purposes.

(b) The Department, or the Department’s designee, may deny an individual’s request for any representative if the representative has a history of a substantiated adult protective service complaint as described in OAR chapter 411, division 020. The individual may select another representative.

(c) An individual with a guardian must have a representative to act as the consumer-employer and for service planning purposes. A guardian may designate themselves as the representative.

(d) A representative may not be a paid caregiver for the individual they are representing.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0080 Homecare Workers and Provider Qualifications

(1) For the purpose of this rule, case manager as used in OAR chapter 411, division 031 means the OPI-M Services Case Manager (SCM).

(2) Homecare workers must be enrolled in and follow the rules in the Consumer-Employed Provider Program described in chapter 411, division 031 to provide in-home services as part of an OPI-M service plan.

(3) A single homecare worker is limited to providing 16 hours of awake care during a 24-hour work period.

(4) All homecare workers are limited to no more than 60 hours per week.

(5) Homecare workers must use Electronic Visit Verification (EVV) as required in OAR 411-031-0040(10)(a).

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0090 In-Home Agency Services and Provider Enrollment

(1) For the purpose of this rule,

(a) Case manager as used in OAR 411-033-0020 is synonymous with the Services Case Manager in OAR 411-014-0010; and

(b) Individual as used in OAR 411-033-0020 is modified to apply to people aged 60 or older or an adult aged 18 or older with physical disability.

(2) In-Home Care Agency Services authorized as part of an OPI-M service plan must comply with OAR 411-033-0020 and with provider enrollment requirements and payment in OAR 411-033-0030.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0100 Adult Day Services (ADS) and ADS Provider Qualifications

(1) An eligible individual may choose to receive services from an ADS. If an individual chooses to receive ADS services, their authorized hours will be reduced by the number of hours they are at the ADS provider.

(2) If chosen by the eligible individual, the OPI-M Services Case Manager authorizes and monitors ADS services in an OPI-M service plan. The amount of time authorized for ADS should be used to reduce the number of hours authorized from the maximum in-home hours.

(3) Adult Day Services programs must adhere to the standards in OAR 411-066-0020, registration requirements in OAR 411-066-0010 and be certified and maintain a Medicaid provider number as in OAR 411-066-0015.

(4) Adult Day Services will be paid in accordance with OAR 411-027-0020(6).

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0110 Assistive Technology, Emergency Response Systems and Provider Qualifications

(1) Assistive Technology such as electronic back-up systems and Emergency Response systems may be authorized in an OPI-M service plan by an OPI-M Services Case Manager for individuals who meet the criteria in OAR 411-035-0025.

(2) Assistive Technology and Emergency Response systems must meet the criteria in OAR 411-035-0030.

(3) Assistive Technology and Emergency Response System providers must meet the requirements of and provide services in compliance with OAR 411-035-0035.

(4) All requests over $500 must be approved by designated Department Central Office staff.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0120 Assisted and Community Transportation and Provider Qualifications

(1) Assisted transportation is offered through homecare workers or in-home care agencies who have a valid Medicaid provider number. Hours authorized for assisted transportation are included in the 40-hour maximum per pay period.

(2) Assisted transportation may be provided during medically related transportation if related to an ADL or IADL needs and part of the prior authorized service plan.

(3) Community transportation is offered through contracted transportation providers, public transportation, homecare workers or in-home care agencies who have a valid Medicaid provider number.

(4) Community transportation (non-medical) may be prior authorized for reasons related to an eligible individual’s ADL and IADL needs and safety or health, in accordance with the individual’s service plan. Community transportation may also be prior authorized to support the individual’s well-being and for access to community-based services, activities, and resources if community integration is a goal in the individual’s person-centered service plan.

(5) A maximum of 100 miles per pay period may be authorized for rides provided by homecare workers or in-home care agencies or 8 rides per pay period if provided by a contracted transportation provider may be authorized for transportation related to community-based services, activities, and resources.

(6) When available to an eligible individual, natural supports, volunteer transportation, and other transportation services are considered a prior resource and may not be replaced with transportation paid for by the Department. Unmet transportation needs may be part of an OPI-M Service plan.

(7) Medical transportation costs are not reimbursed through community transportation. Community transportation is not provided by the Department to obtain medical or non-medical items that may be delivered by a supplier or sent by mail order without extra cost to the eligible individual.

(8) Community transportation must be prior authorized by an individual’s Services Case Manager (SCM) and documented in the individual’s person centered service plan. The Department does not pay any provider under any circumstances for more than the total number of hours, miles, or rides prior authorized by the Department or AAA and as documented in the individual’s service plan.

(a) Contracted transportation providers are reimbursed according to the terms of their contract with the Department. Community transportation services provided through contracted transportation providers must be prior authorized by a SCM based on an estimate of a total count of one-way rides per month.

(b) Homecare workers who use their own personal vehicle for community transportation are reimbursed according to the terms defined in their Collective Bargaining Agreement between the Home Care Commission and Service Employees International Union, Local 503, OPEU. Any mileage reimbursement must be prior authorized to a homecare worker and must be based on an estimate of the maximum miles required to drive to and from the destination authorized in an individual’s service plan.

(c) The AAA may not authorize reimbursement for travel to or from the residence of a homecare worker. The AAA only authorizes community transportation and mileage from the home of an eligible individual to the destination authorized in the individual’s service plan and back to the individual’s home.

(9) The Department is not responsible for any vehicle damage or personal injury sustained or other liability incurred while using a personal motor vehicle for community transportation.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0130 Unpaid Caregiver Education and Training and Provider Qualifications

(1) For the purposes of this rule, an unpaid caregiver means a person providing assistance that meets the following conditions:

(a) Longevity/Acuity:

(A) The caregiver has been providing unpaid caregiving for 3 months or longer; and

(B) Expects to continue providing caregiving for 3 months or longer; or

(D) There is a new diagnosis of an acute or traumatic event causing an increase in the need for activities of daily living care and the increase in additional care is expected to last 3 months or longer; or

(E) There is a significant deterioration of functional ability causing the need for an immediate increase in assistance with activities of daily living which is expected to last 3 months or longer.

(b) The eligible individual, or their representative, attests that the unpaid caregiver meets the longevity and other criteria of this rule.

(d) The unpaid caregiver is providing Activities of Daily Living or Instrumental Activities of Daily Living care or assistance with treatments related to the individual’s needs that are identified in the CA/PS assessment or Department approved forms.

(e) The unpaid caregiver has the skills, knowledge and ability to adequately or safely perform or learn to perform the required work. This means the unpaid caregiver possesses and demonstrates the physical, mental, organizational, and emotional skills or abilities necessary to perform or learn to perform services which safely and adequately meet the needs of the individual.

(2) Caregiver Education and Training may be authorized to improve an unpaid caregiver’s skills, knowledge, ability to perform caregiving tasks that support health and safety of eligible individuals or to help the unpaid caregiver manage the stress of caregiving.

(3) Caregiver Education and Training may be authorized for, but is not limited to, the following topics:

(a) Chronic disease self-management;

(b) Dementia;

(d) Depression;

(e) Self-care;

(f) Stress Reduction;

(g) Suicide prevention;

(h) Addressing complex behaviors;

(i) Loneliness and isolation;

(j) Hoarding; and

(k) Culturally specific caregiving.

(4) Through a person-centered planning process with the individual, the SCM must assess and document the request for caregiver education on the service plan form using the Unpaid Caregiver Assessment tool.

(5) The eligible individual or the representative may request topic specific caregiver education and training and the request shall be documented in the service plan. If the unpaid caregiver requests education and training, the SCM will work with the individual to determine if the service will be included in the service plan.

(6) Unpaid caregivers are not paid for their time attending caregiver education and training or for their transportation to and from training. Unpaid caregivers will not be charged training tuition or registration fees.

(7) Caregiver Education and Training providers are contracted entities that provide one to one training or those that are contracted to provide classroom type trainings or online if the content does not require hands-on learning. Providers may be reimbursed for reasonable costs for transportation for participants attending training.

(8) Caregiver Education and Training does not count in the hourly maximum hours.

(9) Caregiver Education and Training providers must at a minimum meet the following requirements:

(a) Be over the age 18;

(b) Have a high school diploma or GED;

(d) Have demonstrated experience in assisting caregivers of older adults and people with disabilities;

(e) Are subject matter experts with demonstrated experience in their field;

(f) Meet the training, licensing or credential requirements for the education and training they are providing; and

(g) Meet the qualifications to be a Medicaid enrolled provider and be enrolled as a Medicaid provider.

(10) Caregiver Education and Training may not be authorized for education and training available through Long Term Care Community Nursing.

(11) Caregiver Education and Training may not be authorized for In-Home Care Agency providers.

(12) Caregiver Education and Training may not be authorized in place of readily available free training accessible to unpaid caregivers unless the quality of the education and training is more substantive or relevant than the free training.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0140 Chore Services and Provider Qualifications

(1) Chore services assist individuals to maintain their health and safety and are beyond the scope of ADL and IADL tasks as defined in OAR 411-015-0006 and OAR 411-015-0007.

(2) To be eligible for chore services, an individual must meet the criteria in OAR 411-035-0040.

(3) Chore services must meet the eligible chore service criteria in OAR 411-035-0045.

(4) Chore services are not subject to the 40-hour cap.

(5) Chore services providers must meet the qualifications and follow the requirements in OAR 411-035-0050.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0150 Community Caregiver Supportive Services and Provider Qualifications

(1) Community Caregiver Supportive Service may be authorized to assist the individual and their natural support systems.

(2) Through a person-centered planning process with the individual, the Services Case Manager (SCM) must assess and document the need for Community Caregiver Supportive Services on the service plan form using the Unpaid Caregiver Assessment tool.

(3) The caregiver meets the criteria for an unpaid caregiver in OAR 411-016-0130(1).

(4) Services include but are not limited to:

(a) Paid wellness services;

(b) Group-based activities;

(d) Facilitated support groups.

(5) Community Caregiver Supportive Services providers must at a minimum meet the following requirements:

(a) Be over age 18;

(b) Have a high school diploma or GED;

(d) Have demonstrated experience in assisting caregivers of older adults and people with disabilities;

(e) Are subject matter experts with demonstrated experience in their field;

(f) Meet the training, licensing or credential requirements for the supportive service they are providing; and

(g) Meet the qualifications to be a Medicaid enrolled provider and be enrolled as a Medicaid provider.

(6) Services must be prior authorized by the SCM.

(7) Providers are paid depending on the service by one of the following processes as directed by the Department:

(a) Provider submits competitive rate bid for approval to the case manager; or

(b) Invoice is submitted at the contracted rate.

(8) No payment will be released to the provider until the work is finished and meets the specifications of the service.

History

Statutory/Other Authority: ORS 410.020 & 410.070
Statutes/Other Implemented: ORS 410.020 & 410.070
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0160 Evidence Based Health Promotion Services and Provider Qualifications

(1) Evidence Based Health Promotion Services assist eligible individuals to maintain or improve their health or build skills to manage health conditions. These services include, but are not limited to:

(a) Program to Encourage Active, Rewarding Lives for Seniors (PEARLS);

(b) Healthy IDEAS (Identifying Depression Empowering Activities for Seniors);

(d) Fit & Strong!;

(e) A Matter of Balance;

(f) The Otago Exercise Program (OEP);

(g) Tai Chi - Moving for Better Balance; and

(h) SHARE for Dementia (Support, Health, Activities, Resources, Education).

(2) Evidence Based Health Promotion Services must:

(a) Demonstrate through evaluation that they are effective for improving the health and well-being or reducing disease, disability and/or injury among older adults or younger people with disabilities;

(b) Been proven effective with older adult population or younger people with disabilities, using designs with or without random assignment and a control group;

(d) Have been carried out in one or more community site(s) identical to the program that was evaluated to be effective in the published research and shown to be effective; and

(e) Include developed dissemination products that are available to the public.

(3) Providers must at a minimum meet the following requirements:

(a) Be over the age 18;

(b) Have a high school diploma or GED;

(d) Have demonstrated experience in assisting caregivers of older adults and people with disabilities;

(e) Are subject matter experts with demonstrated experience in their field;

(f) Meet the training, licensing or credential requirements for the service they are providing:

(g) Meet the qualifications to be a Medicaid enrolled provider and be an enrolled as a Medicaid provider; and

(h) Ensure and deliver the program meets the requirements to be Evidence-Based as described in section (2).

(4) Evidence Based Health Promotion services may not be authorized if they duplicate services available through Long Term Community Nursing, Older Americans Act programs and Services or other available resources.

(5) Evidence Based Health Promotion Services must meet the conflict-free case management expectations. When the only willing and qualified provider organization provides both case management and Evidence Based Health Promotion Services, Department approved firewalls must be in place and followed to ensure a separation of functions within the organization.

(6) Evidence Based Health Promotion services are not included in the 40-hour maximum hours.

(7) Payments.

(a) Providers may not charge OPI-M individuals for participation.

(b) Rates for OPI-M must be no more than those charged for private pay individuals, Older Americans Act Programs and constitute payment in full for services rendered.

(d) Payment will be made by the Department after services have been provided and invoices have been submitted and approved by the SCM or Department representative.

History

Statutory/Other Authority: Section 361 of the Older Americans Act (OAA) of 1965, as amended & ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0170 Home Delivered Meals and Provider Qualifications

(1) To be eligible for home delivered meals a participant must:

(a) Be eligible for OPI-M;

(b) Be unable to complete meal preparation as defined in OAR 411-015-0007 on a regular basis without assistance; and

(2) Home Delivered Meals must meet the conflict-free case management expectations. When the only willing and qualified provider organization provides both case management and Home Delivered Meals, Department approved firewalls must be in place and followed to ensure a separation of functions within the organization.

(3) Services Case Managers (SCMs) must perform all the functions of case managers authorizing Medicaid home delivered meals as described in OAR 411-040-0050.

(4) If a participant is determined ineligible for Medicaid home delivered meals, but needs food assistance, the SCM shall refer the participant to the nearest Aging and Disability Resource Connection for assistance.

(5) OPI-M Home Delivered Meals providers must meet:

(a) The qualifications and responsibilities for Medicaid paid Home Delivered Meal providers in OAR 411-040-0030; and

(b) The service requirements in OAR 411-040-0036, and

(6) OPI-M paid meals must meet the requirements in OAR 411-040-0035.

(7) The payment rate for Home Delivered Meals is documented in OAR 411-027-0170.

(8) Home Delivered Meals must be prior authorized by the SCM.

(9) Providers may be paid for no more than two meals per day per participant within the month. This service does not constitute the full nutritional regiment.

(10) OPI-M home delivered meals may be authorized in combination with other in-home services if meals are an appropriate resource to meet an identified need.

(11) If OPI-M home delivered meals are authorized, the service plan should be updated to address any duplicative meal preparation services.

History

Statutory/Other Authority: ORS 410.070 & 411.070
Statutes/Other Implemented: ORS 410.060, 410.070, 410.240, 410.250, 410.270, 410.280 & 414.065
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0180 Home Modifications and Provider Qualifications

(1) Home modifications may be authorized for OPI-M eligible individuals whose circumstances meet the consumer environmental modifications criteria in OAR 411-035-0055.

(2) Home modifications must be eligible environmental modifications described in OAR 411-035-0060.

(a) An individual or the individual’s representative may request home modifications listed in OAR 411-035-0060 if needed to assist with the performance of an ADL or IADL, for the health and safety of the individual or to reduce the need for the assistance of a paid caregiver.

(b) An individual or the individual’s representative must make requests to the Services Case Manager and provide any requested documentation of the unmet needs that will be addressed by the modification.

(3) Home modification providers must meet the environmental modifications provider qualifications and requirements in OAR 411-035-0065.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0190 Long Term Care Community Nursing Services and Provider Qualifications

(1) Individuals with health-related needs as assessed by the Services Case Manager (SCM) are eligible for long term care community nursing services as described in Oregon Administrative Rule chapter 411, division 048.

(2) For the purposes of these rules, the term case manager used in chapter 411, division 048 is synonymous with the term SCM used in these rules.

(3) Long Term Care Community Nursing Services must be prior authorized by the SCM.

(4) Limitations:

(a) SCMs may not prior authorize long term care community nursing services that duplicate nursing services provided by Medicare or other Medicaid programs for which the individual is eligible.

(b) Long term care community nursing services do not include:

(A) Nursing activities used for other functions such as protective service investigations, pre-admission screenings, eligibility determinations, licensing inspections, case manager assessments, or corrective action activities. This limitation does not include authorized care coordination as defined in OAR 411-048-0160 (Definitions).

(B) Reimbursement for direct hands-on nursing as defined in OAR 411-048-0160 (Definitions).

(5) An exception to section (3)(b) of this rule may be requested as described in OAR 411-048-0250 (Exceptions).

(6) Long Term Care Community Nursing Services providers must:

(a) Provide the services and use the practices and procedures described in OAR 411-048-0180; and

(b) Follow the Communication and Notification Practices in OAR 411-048-0190; and

(d) Meet the provider qualifications in OAR 411-048-0210; and

(e) Meet orientation requirements in OAR 411-048-0240.

(7) All billing and claims must comply with:

(a) OAR 407-120-0330 (Billing Procedures) and 407-120-0340 (Claim and PHP Encounter Submission); and

(b) OAR chapter 410, division 120 as applicable; and

(c) The Long Term Care Community Nursing Procedure Codes and Payment Authorization Guidelines posted at https://www.oregon.gov/odhs/providers-partners/ltccn/Pages/resources.aspx#billing

(8) Compensation for long term care community nursing services shall be defined in the Department’s rate schedule in OAR 411-027-0170 or through a contract with the Department. The Department may adjust rates in underserved areas to assure that individuals have access to long term care community nursing services.

(9) The Department may grant exceptions as described in OAR 411-048-0250 to Long Term Care Community Nursing Services for OPI-M participants.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070 & 414.065
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0200 Special Medical Equipment and Supplies

(1) Individuals may be eligible for specialized or durable medical equipment and medical supplies if no other payer such as Medicare, Medicaid medical benefits or other insurance is paying for the equipment or supplies.

(2) Special medical equipment or supplies must be necessary to support the consumer’s health or well-being. Special medical equipment is not assistive technology as defined in OAR 411-016-0005 and is not a replacement or substitute for caregiver or unpaid caregiver services.

(3) Special medical equipment or supplies must be prior authorized in accordance with OAR 411-035-0015(2-6).

(4) To be considered an eligible request, when possible, three bids are required from providers. Consumers should work with their Services Case Manager to obtain bids. Bids may not include comparative pricing done through the internet.

(5) Special medical equipment or supplies must be approved by Central Office.

(6) No monetary funds shall be released for installation of special medical equipment or supplies to the provider until the work is finished and is functioning as expected.

(7) Upon delivery, providers must ensure:

(a) The product is functioning correctly;

(b) The product properly fits the consumer; and

(8) Providers must supply a revised bid when requested by designated Central Office staff.

(9) Providers must submit the final invoice for payment within one year of the date of service.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.020 & 410.070
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0210 Supports for Consumer Direction

(1) Supports for Consumer Direction directly benefit the individual by providing skills and knowledge to become an effective employer of homecare workers, self-advocate for other services and resources and manage service plans and goals. This includes but is not limited to skill-building for self-advocacy, setting boundaries, identifying and achieving service plan and personal goals and life experiences that ensure health, safety and well-being, rights and responsibilities as an employer, creating a work schedule, supervising providers in the home, and how to address unsatisfactory work.

(2) Supports for Consumer Direction may not duplicate other services or be authorized if available from other less expensive resources unless the quality of the education and training is more substantive or relevant than the other resources.

(3) Providers must at a minimum meet the following requirements:

(a) Be an organization or individual with at least 2 years of experience in:

(A) Assisting older adults and people with disabilities to learn how to self-direct caregivers, or

(B) Educating older adults and people with disabilities to learn skills to be a self-advocate, or

(b) Be over the age 18;

(d) All staff have passed a criminal background check; and

(e) Be an enrolled Medicaid provider.

(4) Payments.

(a) Providers may not charge OPI-M individuals for participation.

(b) Rates for OPI-M must be comparable to those included in Department contracts or rates for similar services.

(d) Payment will be made by the Department after services have been provided and invoices have been submitted and approved by the Services Case Manager or Department representative.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.065 & 410.070
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Or. Admin. R. 411-016-0300 AAA Case Management, Data Collection, Records, and Reporting

(1) CASE MANAGEMENT.

(a) Type A and Type B contract AAAs will provide services case management to OPI-M cases without full Medicaid medical benefits.

(b) The Department may make exceptions to subsection (a) if the individual has an ongoing relationship with the AAA.

(c) Type A and Type B contract AAAs may provide services case management to individuals receiving Medicare Savings Programs.

(d) The Department’s local office or the Type B transfer AAA will provide case management services to individuals eligible for full Medicaid medical benefits.

(2) DATA COLLECTION.

(a) The collection of required program and fiscal records and data associated with OPI-M must be on forms and data systems as approved by the Department.

(b) Each AAA and service provider must collect and maintain required data on eligible individuals receiving authorized services as required by the Department, including required Race, Ethnicity, Language and Disability (REALD) and Sexual Orientation and Gender Identity/Expression (SOGIE) data when Oregon ACCESS or other state data systems can include the data.

(c) All authorized service data collected on eligible individuals, supported by OPI-M must contain the individual’s Social Security Number and date of birth.

(3) RECORDS.

(a) Each AAA must maintain all records, documents, and accounting procedures that reflect all administrative costs, program support costs, direct service costs, and service case management costs expended on OPI-M. These records must be retained for not less than seven years.

(b) Each AAA must make these records available upon request to the Department or to those duly authorized by the Department.

(4) FISCAL AND PROGRAM REPORTING:

(a) Fiscal and program reports must be completed on forms provided by the Department.

(b) Fiscal and program reports must be submitted to the Department by the specified due dates.

(A) Current cumulative expenditures;

(B) Administrative costs;

(D) Services case management costs; and

(E) Demographic, social, medical, physical, functional, and financial data as required by the Department in the Department’s Client Assessment/Planning System (CA/PS) and in the Oregon ACCESS database.

(5) CONFIDENTIALITY. The use or disclosure by any party of any information concerning a recipient of authorized services described in these rules, for any purpose not directly connected with the administration of the responsibilities of the Department, AAA, or service provider is prohibited except with written consent of the recipient, or the individual’s representative. Disclosure of recipient information must meet Department requirements.

(6) COMMUNICATION. The AAA must respond to communication and OPI-M referrals for services from APD within five business days. Responses to communication from eligible individuals and their representatives must also occur within five business days.

(7) OTHER INFORMATION. AAAs will provide other information required under the OPI-M and 1115 Demonstration Waiver, including the Special Terms and Conditions, approved by the Centers for Medicare & Medicaid Services or by Department policy on OPI-M waiver administration.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.060, 410.070, 410.480 & 414.065
APD 64-2024, adopt filed 11/20/2024, effective 11/22/2024
APD 22-2024, temporary adopt filed 05/20/2024, effective 05/31/2024 through 11/26/2024

Division 17 CRISIS SUPPORT PROGRAM

Or. Admin. R. 411-017-0000 Purpose and Effective Date

(1) The OAR chapter 411, division 017 rules outline the criteria for providing crisis support to individuals who receive Long-term services and supports through the Aging and People with Disabilities program of the Oregon Department of Human Services. The Crisis Support Program (CSP) is funded by state General Funds. The services, supports and items, including emergency items, in these Rules are intended to assist individuals maintain or establish a safe in-home service plan and assist with maintaining placement in a licensed care setting.

(2) The effective date of these rules in OAR chapter 411, division 017, is May 1, 2025.

History

Statutory/Other Authority: ORS 409.050, 410.010, 410.020, 410.070 & 410.090
Statutes/Other Implemented: ORS 410.070
APD 2-2026, adopt filed 01/13/2026, effective 01/14/2026
APD 9-2025, temporary adopt filed 07/16/2025, effective 07/21/2025 through 01/16/2026

Or. Admin. R. 411-017-0010 Definitions

(1) “Aging and People with Disabilities (APD)" means the program within the Oregon Department of Human Services (ODHS) primarily responsible for serving older adults and people with physical disabilities as defined in OAR chapter 411, division 015.

(2) "Area Agency on Aging (AAA)" means the Department designated agency charged with the responsibility to provide a comprehensive and coordinated system of services to older adults and adults with disabilities in a planning and service area. The term Area Agency on Aging is inclusive of both Type A and Type B Area Agencies on Aging as defined in ORS 410.040 and described in ORS 410.210-300.

(3) "Case Manager" means an employee of the Department or Area Agency on Aging, who assesses the service needs of an applicant, determines eligibility, and offers service choices to the eligible individual. The Case Manager authorizes and implements the service plan and monitors the services described in OAR chapter 411, division 028.

(4) “Crisis” means the APD risk definitions, as follows:

(a) High risk: An identified concern, that without mitigation, is likely to cause the individual to experience substantial injury or loss within the next 30 days, puts the individual at risk of institutionalization or displacement from their current living setting, or the individual has experienced substantial harm within the previous 30 days and the harm will likely recur without mitigation;

(b) Medium risk: An identified concern, that without mitigation, is likely to cause the individual to experience minor injury or loss within the next 90 days, puts the individual at risk of institutionalization or displacement from their current living setting, or has experienced minor loss in the previous 30 days that will likely recur or worsen without mitigation.

(5) “Crisis support” means supports to assist with urgent or critical needs that cannot be addressed by other funding sources and one of the following;

(a) To provide one-time funding to resolve an urgent need for individuals establishing or maintaining in-home plans or maintain placement in a licensed care setting; or

(b) A bridge to establish and ensure ongoing stability of the individual’s in-home service plan, and includes, but is not limited to, certain home repairs, specialized items, temporary hotel costs, moving assistance, and surgery for a qualified service animal.

(6) “Crisis Support Program (CSP)” means the program within the Oregon Department of Human Services, Office of Aging and People with Disabilities that determines an individual’s eligibility for receiving crisis supports.

(7) “Department” means the Oregon Department of Human Services (ODHS), APD.

(8) “Emergency items” mean those items used to offer immediate, short-term help to individuals whose health and safety would be threatened when they experience a sudden need for an evacuation from their home, a loss of electrical power or heating source, or other emergency event. Emergency items mean:

(a) “Emergency kit”, which is a bag with necessary supplies, including but not limited to a flashlight, “D” size battery, emergency blanket, N-95 breathing mask, personal first aid kit, whistle, and food rations to last for a few days, for use in case of an emergency;

(b) “Portable power station”, which is a rechargeable battery device that provides off-grid electricity.

(c) “Portable air conditioners’ which are self-contained cooling units designed for easy movement and use, allowing an individual to cool specific areas without the need for permanent installation.

(d) “Back up heaters” which are self-contained heating units designed for easy movement and use, allowing an individual to heat specific areas without the need for permanent installation.

(9) “In-Home Services” mean those services that meet the established priorities for service as described in OAR chapter 411, division 015, and meet all the eligibility requirements in OAR 411-015-0010 through 411-015-0100. The individual must reside in a living arrangement that meets the criteria described in OAR 411-030-0033(2) to receive these services.

(10) "Individual" means a person aged 65 or older, or an adult with a physical disability, applying for or eligible for services per OAR 411-015-0100.

(11) “Licensed care settings” mean provider-owned, controlled, or operated residential settings per OAR 411-004-0010(17). The individual must reside in a living arrangement that meets the criteria described in OAR 411-004-0017 to receive these services.

(12) “Medicaid” means the program that provides health care coverage and long-term services to low-income individuals. The program is jointly funded by the federal government and states and administered by the State. For purpose of these rules, Medicaid means the state and federal program that provides the funding for long-term services and supports for qualified individuals.

(13) "Natural Supports" or "Natural Support System" means resources and supports (e.g., relatives, friends, neighbors, significant others, roommates, or the community) who are willing to voluntarily provide services to an individual without the expectation of compensation. Natural supports are identified in collaboration with the individual and the potential "natural support". The natural support is required to have the skills, knowledge, and ability to provide the needed services and supports.

(14) “Oregon Project Independence - Medicaid (OPI-M)” means the services approved and funded by the Centers for Medicare and Medicaid Services (CMS) for eligible individuals in accordance with the 1115 demonstration waiver for the OPI-M program and including the services defined in OAR chapter 411, division 014.

(15) "Person-Centered Service Plan (Service Plan)" means, for Medicaid eligible individuals, the written details of the supports, desired outcomes, activities, and resources required for an individual to achieve and maintain personal goals, health, and safety. The plan is written by the Case Manager with input and approval from the individual.

(16) “Reasonable resource” means one that is accessible quickly enough to resolve a crisis currently being experienced by the individual. It is only available to individuals who are clearly establishing or maintaining in-home service plans through APD.

(17) “State Plan Personal Care (SPPC)” means those services that enable an individual to move into or remain in their own home while also safely navigating their community, including the services defined in OAR Chapter 411, division 034.

(18) “Support Needs” means the assessed activities of daily living, instrumental activities of daily living and health related tasks and items or repairs that replace the need for human assistance or increases the individual’s independence.

(19) “These Rules” mean the rules in OAR chapter 411, division 017.

History

Statutory/Other Authority: ORS 409.050, 410.070, 410.090 & 410.210-410.300
Statutes/Other Implemented: ORS 410.010, 410.020 & 410.070
APD 2-2026, adopt filed 01/13/2026, effective 01/14/2026
APD 9-2025, temporary adopt filed 07/16/2025, effective 07/21/2025 through 01/16/2026

Or. Admin. R. 411-017-0020 Eligibility Criteria for Crisis Support

(1) To be eligible for crisis supports, an individual must:

(a) Be eligible for or receiving Medicaid long term services and supports, including OPI-M, from Aging and People with Disabilities;

(b) Have an identified, short-term need which, if provided this funding, supports the individual to establish or maintain their service plan;

(d) Have a stable, ongoing plan in place to resolve the need for crisis services;

(e) Not have the funds to meet the need;

(f) Not have natural supports or other services available in the community or other sources of funding that would meet the identified need; and

(g) For a crisis support need that directly impacts the ability to maintain placement in a licensed care setting, the need must be able to be remediated by the items or services described in OAR 411-017-0040(h).

(2) The individual and their Case Manager must have or develop a plan that ensures service plan stability.

(3) The crisis support service must be cost effective.

(4) The individual must be provided the choice to accept or deny the item or service being offered.

(5) Home repairs may be approved only when the individual owns the home, lives with family that do not have the resources to address the crisis or the repair is not the responsibility of the landlord.

(6) Crisis supports can be used for items and services that:

(a) Are necessary to prevent or resolve the crisis;

(b) Are not reasonably accessible through natural supports or other community services;

(d) Are not the responsibility of any other party; and

(e) Are not typically covered by insurance or medical benefits.

(7) To be eligible for funding under this Rule, services must meet one or more of the following criteria:

(a) The need must be short term and immediate.

(b) The need must be met to prevent admission or readmission to a higher level of care.

(d) Other members of the household must continue to pay their portion of any security deposits, rent, housing payments, utility payments, or similar expenses.

(8) The Department has full discretion for:

(a) Determining eligibility for crisis supports;

(b) Denying requests that don't meet community standards to ensure health and safety; and

History

Statutory/Other Authority: ORS 409.050, 410.070, 410.090 & 410.210-410.300
Statutes/Other Implemented: ORS 410.010, 410.020 & 410.070
APD 2-2026, adopt filed 01/13/2026, effective 01/14/2026
APD 9-2025, temporary adopt filed 07/16/2025, effective 07/21/2025 through 01/16/2026

Or. Admin. R. 411-017-0030 Eligibility Criteria for Emergency Items

(1) To be eligible for emergency items, an individual must meet the following requirements:

(a) Be receiving Medicaid funded in-home services, including OPI-M and SPPC, from the Department;

(b) Be likely to need evacuation during fires, winter weather events, floods and other types of emergencies; and

(c) For portable power stations, have a demonstrated need for power back-up in the event there is a sudden loss of power, including, but not limited to, oxygen devices, C-pap, Bi-pap, hospital beds, lift chairs, electric wheelchairs, electric hoyers or sit-to-stands, keeping medication cold or heated up, or need for heated food.

(d) For portable air conditioners or back up heaters, have a demonstrated need that high or low heat would have a determinantal impact on the health and safety of the individual.

(2) The individual must be provided the choice to accept or deny the emergency item being offered.

(3) An individual may receive one emergency kit if eligibility criteria are met. However, an individual may receive two emergency kits if natural supports, a Homecare Worker or in-home care agency direct care worker is required to stay with the individual during an evacuation level event that requires the use of the emergency kit.

(4) No more than one portable power station is allowed per household. Portable power stations are not available to individuals who already have a functioning generator or portable power station that meets their needs.

(5) No more than one portable air conditioner and one back up heater will be made available to individuals. There must be no other legally responsible party that is required to provide air conditioning or heating in the individual’s living setting.

(6) The Department has full discretion for determining eligibility for emergency items.

History

Statutory/Other Authority: ORS 409.050, 410.070, 410.090 & 410.210-410.300
Statutes/Other Implemented: ORS 410.010, 410.020 & 410.070
APD 2-2026, adopt filed 01/13/2026, effective 01/14/2026
APD 9-2025, temporary adopt filed 07/16/2025, effective 07/21/2025 through 01/16/2026

Or. Admin. R. 411-017-0040 Types of Crisis Support Services

(1) Services described in these Rules may include:

(a) Temporary hotel stay.

(b) An item or service that would normally be the responsibility of another payer, but the timeframe to secure approval puts the individual’s health or safety at risk.

(d) Rental or purchases of durable medical equipment. Purchases will be based on the Department’s assessment of ongoing need for the durable medical equipment versus a temporary need and a determination if another funding source can pay for the item.

(e) Past due security deposits, rent, housing payment, or utilities.

(f) Repairs to an individual’s dwelling that, if unaddressed, will result in a medium or high health or safety risk for the individual, as long as they qualify under OAR 411-017-0020(4) and cannot be funded through K Ancillary Services as defined in OAR chapter 411, division 035.

(g) Other items necessary to ensure the individual’s immediate health or safety and which are in support of the individual’s in-home service plan as determined by the Department;

(h) For individuals living in licensed care settings:

(A) A one-time payment to prevent eviction due to non-payment, when pre-approved by the Department; or

(B) Replacement of necessary items lost in a fire, natural disaster or damage by another resident that are not the responsibility of the provider, the provider's insurance or the individual's rental insurance.

(2) Department funds may not be used for:

(a) A reimbursement to an individual, or the legal or designated representative or family member of the individual, for expenses related to crisis support services or items.

(b) An advance payment of funds to an individual, or the legal or designated representative or family member of the individual, to obtain crisis support services or items.

History

Statutory/Other Authority: ORS 409.050, 410.070, 410.090 & 410.210-410.300
Statutes/Other Implemented: ORS 410.010, 410.020 & 410.070
APD 2-2026, adopt filed 01/13/2026, effective 01/14/2026
APD 9-2025, temporary adopt filed 07/16/2025, effective 07/21/2025 through 01/16/2026

Or. Admin. R. 411-017-0050 Conditions for Purchase of Emergency Items

(1) Emergency items must meet the following requirements:

(a) Be of direct benefit to an individual;

(b) Be necessary as identified in the individual’s person centered support plan;

(d) Be new or professionally refurbished.

(2) Emergency items are permanently placed with the individual for which the item was approved.

(3) The Department is not responsible for replacing or fixing faulty equipment or emergency items but the Department may replace the items at their discretion.

History

Statutory/Other Authority: ORS 409.050, 410.070 & 410.090
Statutes/Other Implemented: ORS 410.010, 410.020 & 410.070
APD 2-2026, adopt filed 01/13/2026, effective 01/14/2026
APD 9-2025, temporary adopt filed 07/16/2025, effective 07/21/2025 through 01/16/2026

Or. Admin. R. 411-017-0060 Approval of Crisis Support Services

(1) The Case Manager must ensure the risk assessment in the individual’s person-centered service plan remains up-to-date.

(2) The Case Manager must complete and submit the CSP request form and provide any additional information required by the CSP.

(3) All payments and purchases must be prior authorized by the CSP.

(4) An invoice must be submitted to the CSP in order for a payment to be made for items or services.

History

Statutory/Other Authority: ORS 409.050, 410.070, 410.090 & 410.210-410.300
Statutes/Other Implemented: ORS 410.010, 410.020 & 410.070
APD 2-2026, adopt filed 01/13/2026, effective 01/14/2026
APD 9-2025, temporary adopt filed 07/16/2025, effective 07/21/2025 through 01/16/2026

Or. Admin. R. 411-017-0070 Denial of Crisis Support Program Services and Request for Emergency Items

(1) An individual will receive notification of the decision in writing. The decision notice will include the reason for the denial and the right to an administrative review.

(2) An individual may request an administrative review for any decision made within 45 business days of when the decision was made.

(3) The administrative review will be conducted by the Department and will be conducted by a different person than the individual who made the initial decision.

(4) The Department will make a decision on the administrative review within 30 days and notify the individual of the outcome in writing.

History

Statutory/Other Authority: ORS 409.050, 410.070, 410.090 & 410.210-410.300
Statutes/Other Implemented: ORS 410.010, 410.020 & 410.070
APD 2-2026, adopt filed 01/13/2026, effective 01/14/2026
APD 9-2025, temporary adopt filed 07/16/2025, effective 07/21/2025 through 01/16/2026

Or. Admin. R. 411-017-0080 End to Eligibility for Emergency Items

Emergency items are subject to availability and available funding as determined by the Department.

History

Statutory/Other Authority: ORS 409.050, 410.070 & 410.090
Statutes/Other Implemented: ORS 410.070
APD 2-2026, adopt filed 01/13/2026, effective 01/14/2026
APD 9-2025, temporary adopt filed 07/16/2025, effective 07/21/2025 through 01/16/2026

Division 18 ESSENTIAL COMMUNITY PROVIDER CERTIFICATION

Or. Admin. R. 411-018-0000 Purpose and Definitions

Purpose: These rules establish standards and procedures for a long-term care facility that will be certified by the Department as an essential community provider long-term care facility.

(1) “Adult Foster Home” defined in ORS 443.705 means any family home or facility in which residential care is provided in a home like environment for five or fewer adults who are not related to the provider by blood or marriage.

(2) “Certification” means a written statement by the Department that the facility is an essential community provider long-term care facility.

(3) “Department” means the Department of Human Services, Seniors and People with Disabilities Division.

(4) “Disqualification” means a written statement by the Department that informs the facility of the reasons for disqualification.

(5) “Essential community provider long-term care facility” means a long-term care facility in which the average residency rate is 50% or more eligible for Medicaid during the calendar year immediately preceding the calendar year in which the Department is making certification; except that in adult foster homes the average residency rate will be 60%.

(6) “Long term care facility” means a nursing facility, assisted living facility, residential care facility or an adult foster home that is licensed by the Department.

(7) “Medicaid” means Title XIX of the Social Security Act.

(8) “Medicaid eligible residency rate” means the days of facility occupancy in the calendar year for which Medicaid is responsible for payment either paid or accrued (or would have been paid by or accrued to Medicaid except that another payment source was available and used) divided by all days of facility occupancy in the calendar year for which payment has been made or a liability for payment accrued.

(9) “Medicare” means Title XVIII of the Social Security Act.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 307.808 - 307.815, 443.888 & 410.070
SPD 17-2005, f. & cert. ef. 12-12-05
SDSD 7-2000, f. 12-29-00 cert. ef. 1-1-01
SDSD 11-1999, f. 12-30-99 cert. ef. 1-1-00

Or. Admin. R. 411-018-0010 Certification Process

(1) A long-term care facility seeking certification as an essential community provider long-term care facility must make written application to the Department. The application must include:

(a) The name under which the facility is licensed;

(b) The facility's Medicaid provider number, if the facility has a Medicaid contract;

(d) The county in which the facility is located;

(e) The name and address of a contact person at the facility;

(f) Information about facility residency during the previous calendar year to include:

(A) A monthly count of resident days paid for or accrued by Medicaid;

(B) A monthly count of resident days paid for or accrued by Medicare;

(C) A monthly count of resident days that would have been paid by Medicaid except for the availability of Medicare payment;

(D) A monthly count of resident days paid privately by facility residents or their families; and

(E) A monthly count of resident days paid through any other payment source; and

(g) A statement of the average calendar year Medicaid eligible residency rate. The average Medicaid eligible residency rate is the sum of all monthly days paid by or accrued to Medicaid plus all monthly days that would have been paid by Medicaid except for the availability and use of another source of payment divided by the total of all monthly days paid through or accrued to all payment sources including Medicaid. The percent calculated will be rounded up by the third decimal place.

(2) The Department will make a suggested application form available to facilities upon request. Facilities are not required to use the suggested application form to apply for certification; however, no application for certification may be considered complete until all information listed in section (1) of this rule is received.

(3) Applications must be delivered to Seniors and People with Disabilities, Research, Planning and Rate Setting, 500 Summer Street NE-E18, Salem, OR 97301-1074.

(4) The earliest date on which the Department will accept an application for certification is January 2 of the calendar year following the year for which the Certification is sought.

(5) Application will be considered complete on the date received by the Department if all required information is included.

(6) The Department must audit and review applications submitted by facilities to ensure accuracy of the information provided and will issue Certification if the average Medicaid eligible residency rate during the preceding calendar year is:

(a) 50 percent or more in a nursing facility, assisted living facility or residential care facility; or

(b) 60 percent or more in an adult foster home.

(7) The Department must issue a notice of Certification within 15 business days following receipt of the completed application if it is determined the facility meets the required Medicaid eligible residency rate in section (6)(a) or (6)(b) of this rule.

(8) The Certification issued by the Department will include information required by the local taxing districts for submitting Certifications.

(9) The Certification must be mailed to the mailing address supplied by the facility.

(10) The Certification issued by the Department only applies to the single licensed facility for which Certification is requested.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 307.808 - 307.815, 443.888 & 410.070
SPD 17-2005, f. & cert. ef. 12-12-05
SDSD 7-2000, f. 12-29-00 cert. ef. 1-1-01
SDSD 11-1999, f. 12-30-99 cert. ef. 1-1-00

Or. Admin. R. 411-018-0020 Appeal Process

(1) The Department will issue a notice of Disqualification to a facility when it has been determined the facility does not qualify for Certification.

(2) The notice of Disqualification must be issued within 15 business days following receipt of the completed application and informs the facility of the reasons for disqualification. A facility is entitled to an informal conference or a contested case hearing pursuant to ORS 183.413–183.470, as described in sections (3) or (4) of this rule, to protest the disqualification.

(3) Informal Conference.

(a) The facility may request an informal conference by notifying the Department in writing within 30 days of receipt of the notice of Disqualification.

(b) The request for an informal conference must be postmarked within the 30-day limit and must state specifically the reasons for requesting the conference.

(d) Following the informal conference, the Department will notify the facility of its decision by mail within 15 business days.

(e) No judicial review is available following a decision from an informal conference. If the facility is not satisfied with the decision, the facility may request a contested case hearing pursuant to ORS 183.413–183.470 by notifying the Department in writing of the request for the hearing within 10 business days of the date of the decision notice from the informal conference.

(f) If a facility is not satisfied with the results from the contested case hearing, the facility may petition for judicial review pursuant to ORS 183.480–183.497.

(4) Contested Case Hearing.

(a) As an alternative to section (3) of this rule, the facility may request a contested case hearing pursuant to ORS 183.413–183.470 by notifying the Department in writing that a contested case hearing is requested, within 30 days of receipt of the notice of disqualification from the Department.

(b) The request for the contested case hearing must be postmarked within the 30-day limit and must state, specifically, the reason(s) for requesting the hearing.

(c) If a facility is not satisfied with the results from the contested case hearing, the facility may petition for judicial review pursuant to ORS 183.480–183.497.

(5) If no request for an informal conference or contested case hearing is made within the specified time period, the most recent decision from the Department automatically becomes the final order.

(6) A facility may request documentation supporting the disqualification from the Department; however, a request for documentation does not extend the time period within which an informal conference or contested case must be requested. The Department will produce these work papers within 30 days of receipt of a written request.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 307.808 - 307.815, 443.888 & 410.070
SPD 17-2005, f. & cert. ef. 12-12-05
SDSD 11-1999, f. 12-30-99 cert. ef. 1-1-00

Division 19 OREGON DEAF AND HARD OF HEARING SERVICES (ODHHS) ADVISORY COMMITTEE

Or. Admin. R. 411-019-0000 Purpose and Responsibilities

(1) The purpose of these rules is to establish responsibilities and membership for the Oregon Deaf and Hard of Hearing Services (ODHHS) advisory committee. The goal of ODHHS is to serve members of the public and state agencies by ensuring agency programs are available and accessible to individuals who are Deaf or Hard of Hearing.

(2) The advisory committee’s responsibilities shall include the following:

(a) Identifying the needs and concerns of individuals who are Deaf or Hard of Hearing.

(b) Making recommendations to the Department of Human Services (DHS) related to the full achievement of economic, social, legal, and political equity for the Deaf and Hard of Hearing community.

(c) Advising the Department of Human Services, Governor, Legislative Assembly, and other state agencies on how state services for individuals who are Deaf or Hard of Hearing might be improved or better coordinated to meet the needs of these individuals.

(d) Providing information to individuals who are Deaf or Hard of Hearing about where they may obtain assistance in rehabilitation and employment and about laws prohibiting discrimination in employment as a result of disability.

(e) Cooperating with interest groups in rehabilitation and employment for individuals who are Deaf or Hard of Hearing, and encourage public and private employers to undertake affirmative action to ensure equitable employment of individuals who are Deaf or Hard of Hearing.

(f) Promoting information and education to employers and the general public to increase awareness of and sensitivity to the needs of individuals who are Deaf or Hard of Hearing and to increase opportunities for equitable education and training that shall ensure these individuals have the opportunity to reach their full vocational potential.

History

Statutory/Other Authority: ORS 410.070 & 410.740
Statutes/Other Implemented: ORS 410.740
APD 7-2017, f. 2-21-17, cert. ef. 3-1-17

Or. Admin. R. 411-019-0010 Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 019:

(1) "Deaf" is a term that describes individuals who usually have no useful residual hearing and who generally use sign language as their primary mode of communication. This group of individuals is culturally Deaf and uses the uppercase "D" when using this term.

(2) "deaf" is a term that describes individuals who are audiologically deaf. Individuals who are deaf generally use their residual hearing with speech reading, amplification, hearing aids, cochlear implants, and other hearing assistive technology, and usually speak as a primary mode of communication. This group of individuals uses the lowercase "d" when using this term.

(3) "Deaf-blind" denotes people with a variety of causes and degrees of combined vision and hearing losses that imposes barriers to communication, education, work, and social interaction. This term does not necessarily mean total lack of hearing and vision. Deaf-blind individuals can use a variety of adaptive technology and may also use visual or tactile sign language.

(4) "Department" means the Department of Human Services.

(5) "Hard of Hearing" describes individuals with partial hearing loss. Individuals may also use the term Hard of Hearing to describe themselves if they have a severe or profound audiological level of hearing loss.

(6) "Late Deafened" describes people who acquired a severe to profound hearing loss as adults, generally well after the development of speech and language. Individuals who are late deafened generally will benefit from the use of visual display technology and cochlear implants and may also benefit from hearing aids and other hearing technology.

(7) "These Rules" mean the rules in OAR chapter 411, division 019.

History

Statutory/Other Authority: ORS 410.070 & 410.740
Statutes/Other Implemented: ORS 410.740
APD 7-2017, f. 2-21-17, cert. ef. 3-1-17

Or. Admin. R. 411-019-0020 Composition of ODHHS Advisory Committee

(1) The Director of the Department of Human Services shall appoint an advisory committee to advise the Director regarding the Oregon Deaf and Hard of Hearing Services Program. The Director shall try to achieve geographic diversity in advisory committee membership, if possible. The Director may elect to consult with the advisory committee regarding proposed committee membership.

(2) The Director shall appoint 12 individuals to the advisory committee:

(a) Four individuals who either are Deaf, deaf, or Deaf-blind.

(b) Four individuals who are Hard of Hearing.

(c) Two individuals who specialize in providing adaptive or communication services for the Deaf, deaf, Deaf-blind, or Hard of Hearing population.

(d) Two individuals who are well qualified by appropriate licensure, certification, or education and experience to practice in psychology, mental health, social services, or rehabilitation counseling services.

(3) The Director may conduct background checks prior to appointment.

History

Statutory/Other Authority: ORS 410.070 & 410.740
Statutes/Other Implemented: ORS 410.740
APD 7-2017, f. 2-21-17, cert. ef. 3-1-17

Or. Admin. R. 411-019-0030 ODHHS Executive and Ad Hoc Committees

(1) The ODHHS advisory committee shall elect an ODHHS executive committee from its membership.

(2) The executive committee shall consist of two co-chairs and one secretary.

(a) The executive committee reserves the right to expand the executive committee membership to include three at-large members to be determined by a vote of the advisory committee.

(b) The primary role of the executive committee is to assist the staff in planning and organizing advisory committee meetings and to make decisions that require critical resolution between regular meetings of the advisory committee, while keeping within the mission and values of the advisory committee.

(c) The executive committee will review applicants to the advisory committee and make appointment recommendations. Appointment recommendations shall be forwarded to the DHS Director.

(3) The co-chairs may establish ad hoc committees for particular purposes with stated objectives and limited duration.

(a) Chairs of any ad hoc committees must be members of the ODHHS advisory committee and be appointed by the co-chairs.

(b) Ad hoc committees may include members of the general public when appropriate.

History

Statutory/Other Authority: ORS 410.070 & 410.740
Statutes/Other Implemented: ORS 410.740
APD 7-2017, f. 2-21-17, cert. ef. 3-1-17

Division 20 ADULT PROTECTIVE SERVICES — GENERAL

Or. Admin. R. 411-020-0000 Purpose and Scope of Program

(1) RESPONSIBILITY. The Department of Human Services (Department), Aging and People with Disabilities program (APD) has the responsibility to provide Adult Protective Services (APS) to older adults and to adults with physical disabilities whose situation is within APD's jurisdiction to investigate.

(2) INTENT. The intent of the APS Program is to provide prevention, protection, and intervention for older adults and adults with physical disabilities who are unable to protect themselves from abuse and self-neglect.

(3) SCOPE OF SERVICES. The scope of services includes:

(a) Receiving reports of abuse or self-neglect;

(b) Providing and documenting risk assessment of alleged victims;

(d) Providing appropriate resources for victim safety; and

(e) Collection of statewide data of Adult Protective Services.

(4) AVAILABILITY. Adult Protective Services are available from the Department to any adult resident of a licensed care facility, to nursing facility residents regardless of age, and to any adult residing in the community who meets the eligibility criteria in OAR 411-020-0015.

(5) INTERVENTION MODEL.

(a) As a human services agency, the Department embraces a social model of intervention with a primary focus on offering safety and protection to the alleged victim. The over-arching ethical value in Adult Protective Services is the obligation to balance the duty to protect older adults and adults with physical disabilities with the duty to protect their right to self-determination.

(b) The Department relies upon other key sources, such as law enforcement, legal, medical, and regulatory professionals, to assist in responding to the overall problems associated with abuse and self-neglect, and encourages active participation and sharing of appropriate information by APS staff on multidisciplinary teams.

(c) The Department supports efforts to promote education and outreach services that help identify and prevent abuse and self-neglect of older adults and adults with physical disabilities.

History

Statutory/Other Authority: ORS 124.055, 124.065, 124.070, 179.040, 409.010, 410.020, 410.040, 410.070, 411.060, 411.116 & 443.450, 443.765, 443.767
Statutes/Other Implemented: ORS 124.050 - 124.095, 409.010, 410.020, 410.040, 410.070, 411.060, 411.116, 443.435, 443.450 & 443.500, 443.765, 443.767
APD 44-2018, amend filed 12/27/2018, effective 12/27/2018
APD 16-2018, temporary amend filed 06/28/2018, effective 07/01/2018 through 12/27/2018
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10
SPD 6-2005, f. 4-29-05, cert. ef. 7-1-05
SSD 5-1994, f. & cert. ef. 11-15-94
Renumbered from 461-011-0000 by Ch. 784, OL 1981 & AFS 69-1981, f. 9-30-81, cert. ef. 10-1-81
AFS 5-1980, f. & cert. ef. 1-25-80
PWC 769, f. 10-20-75, cert. ef. 10-25-75
PWC 750(Temp), f. 8-18-75, cert. ef. 8-21-75

Or. Admin. R. 411-020-0002 Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 020:

(1) "Abuse" means any of the following:

(a) PHYSICAL ABUSE.

(A) Physical abuse includes:

(i) The use of physical force that may result in bodily injury, physical pain, or impairment; or

(ii) Any physical injury to an adult caused by other than accidental means.

(B) For purposes of these rules, conduct that may be considered physical abuse includes, but is not limited to:

(i) Acts of violence, such as, striking (with or without an object), hitting, beating, punching, shoving, shaking, kicking, pinching, choking, or burning; or

(ii) The use of force-feeding or physical punishment.

(C) Physical abuse is presumed to cause physical injury, including pain, to adults in a coma or adults otherwise incapable of expressing injury or pain.

(b) NEGLECT.

(A) For the purposes of these rules, neglect means the active or passive failure to provide the basic care or services necessary to maintain the health and safety of an adult, when that failure:

(i) Results in physical harm, significant emotional harm, unreasonable discomfort, or serious loss of personal dignity to the adult; or

(ii) Creates the risk of serious harm to the adult.

(B) The expectation for care may exist because of an assumed responsibility or a legal or contractual agreement, including, but not limited to, where an individual has a fiduciary responsibility to assure the continuation of necessary care or services.

(C) An adult, who in good faith, is voluntarily under treatment solely by spiritual means in accordance with the tenets and practices of a recognized church or religious denomination shall, for this reason alone, not be considered subjected to abuse by reason of neglect as defined in these rules.

(c) ABANDONMENT. Abandonment includes desertion or willful forsaking of an adult for any period of time by an individual who has assumed responsibility for providing care, when that desertion or forsaking results in harm or places the adult at risk of serious harm.

(d) VERBAL OR EMOTIONAL ABUSE.

(A) Verbal or emotional abuse includes threatening significant physical harm, or threatening or causing significant emotional harm to an adult using:

(i) Derogatory or inappropriate names, insults, verbal assaults, profanity, or ridicule; or

(ii) Harassment, coercion, threats, intimidation, humiliation, mental cruelty, or inappropriate sexual comments.

(B) For the purposes of these rules:

(i) Conduct that may be considered verbal or emotional abuse includes, but is not limited to, the use of oral, written, or gestured communication that is directed to an adult or within their hearing distance, regardless of their ability to comprehend.

(ii) The emotional harm that may result from verbal or emotional abuse includes, but is not limited to, anguish, distress, fear, unreasonable emotional discomfort, loss of personal dignity, or loss of autonomy.

(e) FINANCIAL EXPLOITATION. Financial exploitation including:

(A) Wrongfully taking, by means including, but not limited to, deceit, trickery, subterfuge, coercion, harassment, duress, fraud, or undue influence, the assets, funds, property, or medications belonging to or intended for the use of an adult;

(B) Alarming an adult by conveying a threat to wrongfully take or appropriate money or property of the adult if the adult reasonably believes the threat conveyed maybe carried out;

(D) Failing to use income or assets of an adult for the benefit, support, and maintenance of the adult; or

(E) The taking, borrowing, or accepting of assets, funds, property, or medications from an adult residing in a facility by an employee of the facility, unless the adult and employee are related and the action described in this paragraph does not constitute a wrongful taking as described in (A).

(f) SEXUAL ABUSE. Sexual abuse including:

(A) Sexual contact with a non-consenting adult or with an adult considered incapable of consenting to a sexual act. Consent, for purposes of this definition, means a voluntary agreement or concurrence of wills. Mere failure to object does not, in and of itself, constitute an expression of consent;

(B) Verbal or physical harassment of a sexual nature, including, but not limited to severe, threatening, pervasive, or inappropriate exposure of an adult to sexually explicit material or language;

(D) Any sexual contact between an employee of a facility and an adult residing in the facility unless the two are spouses or domestic partners;

(E) Any sexual contact that is achieved through force, trickery, threat, or coercion; or

(F) An act that constitutes a crime under ORS 163.375, 163.405, 163.411, 163.415, 163.425, 163.427, 163.465, 163.467, or 163.525 except for incest due to marriage alone.

(g) INVOLUNTARY SECLUSION. Involuntary seclusion of an adult for the convenience of a caregiver or to discipline the adult.

(A) Involuntary seclusion may include:

(i) Confinement or restriction of an adult to their room or a specific area; or

(ii) Placing restrictions on an adult's ability to associate, interact, or communicate with other individuals.

(B) In a facility, emergency or short-term monitored separation from other residents may be permitted if used for a limited period of time when:

(i) Used as part of the care plan after other interventions have been attempted;

(ii) Used as a de-escalating intervention until the facility evaluates the behavior and develops care plan interventions to meet the resident’s needs; or

(iii) The resident needs to be secluded from certain areas of the facility when their presence in the specified areas poses a risk to health or safety.

(h) WRONGFUL USE OF A PHYSICAL OR CHEMICAL RESTRAINT OF AN ADULT.

(A) A wrongful use of a physical or chemical restraint includes situations where:

(i) A licensed health professional has not conducted a thorough assessment before implementing a licensed physician’s prescription for restraint;

(ii) Less restrictive alternatives have not been evaluated before the use of the restraint; or

(iii) The restraint is used for convenience or discipline.

(B) Physical restraints may be permitted if used when a resident’s actions present an imminent danger to self or others and only until immediate action is taken by medical, emergency, or police personnel.

(2) "Administrative Closure" means an abuse or self-neglect investigation was initiated and closed with no determination as to whether abuse or self-neglect occurred or not.

(3) "Adult" means an individual who is 18 years of age or older.

(4) "Aging and People with Disabilities (APD)" means the Aging and People with Disabilities program within the Department of Human Services.

(5) Alleged Perpetrator (AP)" means the licensee, employees, volunteers, or contracted personnel of the facility, or any adult reported to have committed abuse.

(6) "Alleged Victim (AV)" means the individual against whom abuse or self-neglect is reported to have been committed.

(7) "Adult Protective Services (APS)" means APD program services to respond to abuse and self-neglect of older adults and adults with physical disabilities as described in these rules, including screening, triage or consultation, on-site assessment, investigation, intervention, documentation, and APS risk management.

(8) "APS Risk Management" means the process by which Adult Protective Services staff provide short-term, active assessment and intervention with an alleged victim who is at serious risk of harm, or continues to be at serious risk of harm, after an investigation is complete.

(9) "Area Agency on Aging (AAA)" means the Department designated agency charged with the responsibility to provide a comprehensive and coordinated system of service to individuals in a planning and service area.

(10) "Authority" means the Oregon Health Authority.

(11) "Basic Care" means care essential to maintain the health and safety needs of an adult, but is not limited to, assistance with medication administration, medical needs, nutrition, supervision for safety, as well as activities of daily living including assistance with bathing, dressing, hygiene, eating, mobility, and toileting.

(12) "Community-Based Care Facility" means an assisted living facility, residential care facility, or adult foster home.

(13) "Conclusion" means a determination of whether abuse or self-neglect occurred.

(14) "Conservatorship" means a court has issued an order appointing and investing an individual with the power and duty of managing the property of another individual.

(15) "Department" means the Department of Human Services (DHS).

(16) "Evidence" means material gathered, examined, or produced during an APS investigation. Evidence includes, but is not limited to, witness statements, documentation, photographs, audio or video recordings, and relevant physical evidence.

(17) "Financial Institution" has the meaning given in ORS 192.583.

(18) "Financial Records" has the meaning given in ORS 192.583.

(19) "Guardianship" means a court has issued an order appointing an individual with the power and duty of managing the care, comfort, or maintenance of an incapacitated adult.

(20) "Health Care Provider" has the meaning given that term in ORS 192.556.

(21) "Imminent Danger" means there is reasonable cause to believe an adult's life, physical well-being, or resources are in danger if no intervention is initiated immediately.

(22) "Inconclusive" means that after a careful analysis of the evidence gathered in an investigation, a determination of whether abuse or self-neglect occurred cannot be reached by a preponderance of the evidence.

(23) "Informed Choice" means the individual has the mental capacity, adequate information, and freedom from undue influence to understand the current situation, understand the options available and their likely consequences, be able to reasonably choose from among those options, and communicate that choice.

(24) "Investigation" means the process of determining whether abuse or self-neglect occurred. The investigation results in a conclusion as to whether the alleged abuse or self-neglect is substantiated, unsubstantiated, inconclusive, or administratively closed.

(25) "Law Enforcement Agency" means:

(a) Any city or municipal police department;

(b) Any county sheriff's office;

(d) Any district attorney; or

(e) The Oregon Department of Justice.

(26) "Licensed Care Facility" means a facility licensed by, APD including assisted living facilities, residential care facilities, and adult foster homes. For these rules "licensed care facility" does not include nursing facilities.

(27) "Local Office" means the local service staff of the Department or Area Agency on Aging.

(28) "Mandatory Abuse Reporter" for the purpose of these rules, means any public or private official who is required by state abuse statutes to report alleged abuse. The public or private officials who are mandatory reporters are:

(a) Physicians, psychiatrists, naturopathic physicians, osteopathic physicians, chiropractors, podiatric physicians, physician assistants, or surgeons, including any interns or residents;

(b) Licensed practical nurses, registered nurses, nurse practitioners, nurse's aides, home health aides, or employees of an in-home health service;

(d) Employees of the Oregon Health Authority, county health departments, or community mental health programs;

(e) Employees of a nursing facility or an individual who contracts to provide services to a nursing facility;

(f) Peace officers;

(g) Members of the Clergy;

(h) Regulated social workers, licensed professional counselors, or licensed marriage and family therapists;

(i) Physical, speech, or occupational therapists, audiologists, or speech language pathologists;

(j) Senior center employees;

(k) Information and referral or outreach workers;

(l) Firefighter or emergency medical services providers;

(m) Psychologists;

(n) Licensees of an adult foster home or an employee of the licensee;

(o) Attorneys;

(p) Dentists;

(q) Optometrists;

(r) Members of the Legislative Assembly;

(s) Personal support workers;

(t) Home care workers;

(u) Referral Agents as defined in OAR 411-058-0000(12); and

(v) For nursing facilities, all of the above, plus legal counsel, guardians, or family members of the resident.

(29) "Multidisciplinary Team (MDT)" means a county-based investigative and assessment team that coordinates and collaborates for allegations of adult abuse and self-neglect. The team may consist of personnel of law enforcement, the local district attorney office, local Department or AAA offices, community mental health and developmental disability programs, plus advocates for older adults and individuals with disabilities, and individuals specially trained in abuse.

(30) "Multidisciplinary Team (MDT) Member" means an individual or a representative of an agency that is allowed by law and recognized to participate on the multidisciplinary team.

(31) "Older Adult" means any individual 65 years of age or older.

(32) "Physical Disability" means any physical condition or cognitive condition such as brain injury or dementia that significantly interferes with an adult's ability to protect themselves from abuse or self-neglect.

(33) "Preponderance of the Evidence" means the majority of the evidence collected during an investigation supports a particular conclusion.

(34) "Protected Health Information" has the meaning given in ORS 192.556.

(35) "Protective Services" means a service provided by the Department, directly or through type B AAAs, in response to the need to protect elderly persons and persons with physical disabilities from harm or neglect.

(36) "Regulated Providers" means service providers regulated through licensing, certification, registration, contracts, provider enrollment agreements, and other means over which the Department and Authority have administrative authority and responsibility.

(37) "Reporter" means the individual or entity who reports alleged abuse or self-neglect to the Department or a law enforcement agency.

(38) "Required Reporter" means the individual or entity who is required by the Department’s or the Authority’s administrative rules, contracts, or policy to report alleged abuse or self-neglect to the Department. "Required reporter" is also used when other agencies or entities internally require their own abuse reporting to the Department.

(39) "Restraint" means:

(40) "Risk Assessment" means the process by which an individual is evaluated for risk of harm and for the physical and cognitive abilities to protect their interests and personal safety. The individual's living situation, support system, and other relevant factors are evaluated to determine the impact on the individual's ability to become or remain safe.

(41) "Risk of Serious Harm" means that without intervention, the individual is likely to incur substantial injury or loss.

(42) "Self-Determination" means an adult's ability to decide their own fate or course of action without undue influence.

(43) "Self-Neglect" means the inability of an adult to understand the consequences of their actions or inaction when that inability leads to or may lead to harm or endangerment to self.

(44) "Services" as used in the definition of abuse includes, but is not limited to, the provision of food, clothing, medicine, housing, medical services, housekeeping, and transportation as well as assistance with bathing or personal hygiene, or any other service essential to the well-being of an adult.

(45) "Substantiated" means the preponderance of the evidence gathered and analyzed in an investigation indicates the allegation is true.

(46) "These Rules" mean the rules in OAR chapter 411, division 020.

(47) "Undue Influence" means the process by which an individual uses their role and power to exploit the trust, dependency, and fear of another individual and to deceptively gain control over the decision making of the second individual.

(48) "Unsubstantiated" means the preponderance of the evidence gathered and analyzed in an investigation indicates the allegation is not true.

History

Statutory/Other Authority: ORS 124.05, 124.065, 124.070, 409.010, 410.020, 410.040, 410.070, 411.060, 411.116, 443.450, 443.765 & 443.767
Statutes/Other Implemented: ORS 124.050 - 124.095, 125.005, 192.583, 409.010, 410.020, 410.040, 410.070, 411.060, 411.116 & 443.435, 443.450, 443.500, 443.765, 443.767, Oregon Laws 2013 Chapter 352
APD 44-2018, amend filed 12/27/2018, effective 12/27/2018
APD 16-2018, temporary amend filed 06/28/2018, effective 07/01/2018 through 12/27/2018
APD 8-2016, f. & cert. ef. 5-6-16
APD 24-2015(Temp), f. 12-16-15, cert. ef. 1-1-16 thru 6-28-16
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
SPD 15-2012, f. & cert. ef. 11-28-12
SPD 7-2012(Temp), f. & cert. ef. 6-1-12 thru 11-28-12
SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10
SPD 21-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10
SPD 33-2006, f. & cert. ef. 12-21-06
SPD 10-2006, f. 3-23-06, cert. ef. 4-1-06
SPD 6-2005, f. 4-29-05, cert. ef. 7-1-05
SSD 5-1995, f. 5-31-95, cert. ef. 6-1-95
SSD 5-1994, f. & cert. ef. 11-15-94

Or. Admin. R. 411-020-0010 Authority and Responsibility

The Department is granted with the statutory authority and responsibility for the delivery and administration of programs and services relating to older adults and adults with physical disabilities, including adult protective services. These rules detail the components of the Adult Protective Services process. Specific authorizing statutes include:

(1) GENERAL ADULT PROTECTIVE SERVICES.

(a) ORS 409.010, authorizing Adult Protective Services for older adults and adults with disabilities.

(b) ORS 410.020, authorizing the protection of older adults and adults with disabilities from physical and mental abuse and from fraudulent practices.

(c) ORS 410.040, defining Adult Protective Services as a service to be provided by the Department directly or through type B area agencies, in response to the need for protection from harm or neglect to older adults and adults with disabilities.

(d) ORS 410.070, authorizing the Department to serve as an advocate for older adults and adults with disabilities by conducting investigations concerning matters affecting the health, safety, and welfare of older adults and adults with disabilities, and to adopt rules for providing Adult Protective Services.

(2) ADULT FOSTER HOMES.

(a) ORS 443.767 requires the Department to promptly investigate any complaint that a resident of an adult foster home has been injured, abused, or neglected and is in imminent danger, or has died or been hospitalized, and any complaint alleging the existence of any circumstances that may result in injury, abuse, or neglect of a resident and may place the resident's health or safety in imminent danger.

(b) OAR 411-050-0665 details the steps for filing, investigating, and documenting complaints in Adult Foster Homes.

(3) RESIDENTIAL CARE AND ASSISTED LIVING FACILITIES.

(a) ORS 443.435 allows the Department access to a facility to determine whether it is maintained and operated in accordance with ORS 443.400 to 443.455 and 443.991(2) and the rules in OAR chapter 411, division 054.

(b) OAR 411-054-0105 details methods for conducting inspections and investigations in residential care and assisted living facilities.

(4) ELDER ABUSE.

(a) ORS 124.050 to 124.095 mandates reports and investigations of reportedly abused older adults.

(b) These rules detail the procedures for reporting, investigating, and documenting alleged abuse or self-neglect of older adults.

(5) ADULTS WHO RECEIVE MEDICAID SERVICES.

(a) Section 1915(c) of the Social Security Act, Home and Community-Based Services (HCBS) Waiver (see Waiver Survey, Appendix Item G-1-a) mandates the Department to take reports of and investigate critical incidents (e.g., abuse, neglect, and exploitation) that reportedly occur to Medicaid recipients, and develop strategies to reduce or prevent future incidents.

(b) ORS 124.070, 409.010, 410.020, 410.040, 410.070, and 443.767 provide the Department with authority to designate Adult Protective Services as under these rules.

History

Statutory/Other Authority: ORS 124.055, 124.065, 124.070, 409.010, 410.020, 410.040, 410.070, 411.060, 411.116, 443.450 & 443.765, 443.767
Statutes/Other Implemented: ORS 124.050 - 124.095, 179.040, 409.010, 410.020, 410.040 & 410.070, 411.060, 411.116
APD 44-2018, amend filed 12/27/2018, effective 12/27/2018
APD 16-2018, temporary amend filed 06/28/2018, effective 07/01/2018 through 12/27/2018
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10
SPD 10-2006, f. 3-23-06, cert. ef. 4-1-06
SPD 6-2005, f. 4-29-05, cert. ef. 7-1-05
SSD 5-1994, f. & cert. ef. 11-15-94
Renumbered from 461-011-0010 by Ch. 784, OL 1981 & AFS 69-1981, f. 9-30-81, cert. ef. 10-1-81
AFS 5-1980, f. & cert. ef. 1-25-80

Or. Admin. R. 411-020-0015 Eligibility Criteria

(1) Adult Protective Services as described in OAR 411-020-0040 are available for:

(a) Adults aged 65 and older;

(b) Adults aged 18 and older who have a physical disability as defined in these rules; and

(d) Older adults and adults with physical disabilities who receive services from regulated providers and are not eligible for abuse investigation by another Department or Authority program.

(2) Eligibility for Adult Protective Services is not dependent upon income or source of income.

History

Statutory/Other Authority: ORS 410.070, 411.116, 443.450, 443.765 & 443.767
Statutes/Other Implemented: ORS 410.070 & 411.116
APD 44-2018, amend filed 12/27/2018, effective 12/27/2018
APD 16-2018, temporary amend filed 06/28/2018, effective 07/01/2018 through 12/27/2018
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10
SPD 10-2006, f. 3-23-06, cert. ef. 4-1-06
SPD 6-2005, f. 4-29-05, cert. ef. 7-1-05
SSD 5-1994, f. & cert. ef. 11-15-94
Renumbered from 461-011-0015 by Ch. 784, OL 1981 & AFS 69-1981, f. 9-30-81, cert. ef. 10-1-81
AFS 5-1980, f. & cert. ef. 1-25-80

Or. Admin. R. 411-020-0020 Reporting of Abuse and Self-Neglect

(1) For the purpose of these rules, mandatory abuse reporters are those "public and private officials" listed in ORS 124.50. Mandatory reporters must immediately report instances of alleged elder abuse to the Department, local office, or a local law enforcement agency.

(a) A mandatory reporter must report if they come into contact with, and have reasonable cause to believe, that an older adult in any setting has suffered abuse or neglect.

(b) Definitions of abuse or neglect for mandatory reporting are defined in ORS 124.050 to 124.095.

(c) Anyone making a mandatory report of abuse with reasonable grounds and good faith shall have immunity from any civil or criminal liability. The same immunity applies to participating in any judicial proceeding resulting from the report.

(d) Exceptions to mandatory reporting. A psychiatrist, psychologist, attorney, or member of the clergy does not have to report privileged information covered under ORS 40.225 to 40.295. An attorney is not required to make a report of information communicated to the attorney in the course of representing a client if disclosure of the information would be detrimental to the client.

(2) Some individuals are also required under, law, Department’s administrative rules, contracts, or policy to report abuse. These required reporters must report instances of alleged abuse of older adults and persons with physical disabilities to the Department or local office. Required abuse reporting includes, but is not limited to:

(a) An individual who works, volunteers or is contracted personnel in an Assisted Living or Residential Care Facility under OAR 411-054-0028(2)(a)(b) and have reasonable cause to suspect abuse has occurred to a resident in those community-based settings.

(b) Many DHS and OHA contractors have requirements in their contracts to report abuse.

(c) Oregon law mandates that stock brokers, financial advisors, and other professionals regulated by the Department of Consumer Business Services (DCBS) shall report financial abuse to DCBS. DCBS then shall notify the Department or local office. Once notified by DCBS, the local APS office shall inform DCBS of the screening outcome.

(3) Reporting of instances involving abuse or self-neglect of older adults and adults with physical disabilities is highly encouraged for non-mandatory reporters.

(4) The identity of the individual reporting the alleged abuse shall be confidential and may be disclosed only with the consent of that individual, by judicial process, or exceptions in law, e.g., a law enforcement agency.

History

Statutory/Other Authority: ORS 124.055, 124.065, 124.070, 409.010, 410.020, 410.040, 410.070 & 411.060, 411.116, 443.450, 443.765, 443.767
Statutes/Other Implemented: ORS 124.050 - 124.095, 409.010, 410.020, 410.040, 410.070 & 411.116, 443.435, 443.450, 443.500, 443.765
APD 44-2018, amend filed 12/27/2018, effective 12/27/2018
APD 16-2018, temporary amend filed 06/28/2018, effective 07/01/2018 through 12/27/2018
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10
SPD 21-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10
SPD 33-2006, f. & cert. ef. 12-21-06
SPD 10-2006, f. 3-23-06, cert. ef. 4-1-06
SPD 6-2005, f. 4-29-05, cert. ef. 7-1-05
SSD 5-1994, f. & cert. ef. 11-15-94

Or. Admin. R. 411-020-0025 Multidisciplinary Team (MDT)

(1) Where a county district attorney or delegated designee has developed a multidisciplinary team (MDT), the local office must participate to coordinate and collaborate on allegations of abuse and self-neglect of older adults and adults with physical disabilities. Adult Protective Services, when provided by the local office in conjunction with their participation on their county MDT, shall be provided as described in these rules.

(2) All information that is obtained by the MDT members and shared in the exercise of their duties on the MDT is confidential and may not be further disclosed except as permitted by law, authorization by the adult, or by court order.

(3) Upon request, the local office must annually provide the MDT with the number of substantiated allegations of abuse of adults investigated by APS and the number of APS cases referred to law enforcement according to reporting procedures developed by the MDT.

History

Statutory/Other Authority: ORS 124.050 - 124.095, 409.010, 410.020, 410.040, 410.070, 411.060 & 411.116, 443.450, 443.765, 443.767
Statutes/Other Implemented: ORS 124.050 - 124.095, 409.010, 410.020, 410.040, 410.070, 411.060 & 411.116, Oregon Laws 2009 chapter 837, section 8, Oregon Laws 2013 Chapter 352, Section 10
APD 44-2018, amend filed 12/27/2018, effective 12/27/2018
APD 16-2018, temporary amend filed 06/28/2018, effective 07/01/2018 through 12/27/2018
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10
SPD 21-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10

Or. Admin. R. 411-020-0030 Confidentiality

(1) Oregon and federal statutes provide for the confidentiality of the identity of certain individuals and information obtained as a result of an APS intervention. Confidentiality of information is critical to protect the privacy of individuals, to encourage the reporting of abuse and self-neglect, and to facilitate obtaining information.

(2) All information involving investigations that do not involve allegations against regulated providers is confidential, except for disclosure of the conclusion under OAR 411-020-0100(7), and may be disclosed only by judicial process, as required by specific exceptions under state and federal law, or with the consent of the victim. No names may be released without the consent of the individual named except as provided in section (5) of this rule.

(3) If an investigation involves a regulated provider, the following provisions apply:

(a) Information and records regarding the report of alleged abuse and subsequent findings may be made available internally to the appropriate regulating authority upon request or by operational procedures.

(b) Redacted copies of investigations involving regulated providers may also be made available to the provider and alleged perpetrator when the investigation is the basis for regulatory action or when providing the information to the provider is necessary for safety or protective purposes.

(c) Redacted copies of investigations involving APD-licensed facilities may be made available to the general public upon request or by operational procedures.

(d) Any disclosures of APS information and reports involving regulated providers must comply with applicable State and Federal confidentiality and privacy laws.

(4) The Department shall make the APS report and underlying investigatory materials available to the protection and advocacy system designated by ORS 192.517, e.g. Disability Rights Oregon, when the alleged victim is an individual with a disability or mental illness as identified by ORS 192.517.

(5) Where the law and the Department deem appropriate, for the purpose of furthering a protective service, when it is necessary to prevent or treat abuse, or when deemed to be in the best interest of an alleged victim, the names of the alleged victim, witnesses (other than the reporter except as expressly permitted below), any investigative report, and any records compiled during an investigation, may be made available to:

(a) Any law enforcement agency, to which the name of the reporter may also be made available.

(b) An agency that licenses or certifies a facility where the alleged abuse occurred, or licenses or certifies the individual who practices there.

(c) A public agency that licenses or certifies an individual that has abused or is alleged to have abused an older adult.

(d) The Long-Term Care Ombudsman.

(e) Any governmental or private non-profit agency providing Adult Protective Services to the alleged victim when that agency meets the confidentiality standards of ORS 124.090, including any federal law enforcement agency that has jurisdiction to investigate or prosecute for abuse defined in these rules, including, but not limited to, the Federal Bureau of Investigation (FBI), the Federal Trade Commission, or the Federal Offices of Inspector General.

(f) An MDT as described in OAR 411-020-0025.

(g) A court, pursuant to court order, to which the name of the complainant may also be made available as required by the court order.

(h) An administrative law judge in an administrative proceeding when necessary to provide protective services, investigate, prevent, or treat abuse of an older adult or when in the best interest of an older adult.

(i) The Oregon Public Guardian as required by ORS chapter 125.

(j) A court or petitioning attorney pursuant to ORS 125.012 (guardians and conservators).

(6) The Department shall limit the use and disclosure of APS reports and information to that which is reasonably necessary to accomplish the intended purpose of the disclosure.

(7) Recipients of information disclosed under section (4) of this rule must maintain the confidentiality of the information as required by Oregon statute unless superseded by other state or federal law.

History

Statutory/Other Authority: ORS 124.055 124.065, 124.070, 409.010, 410.020, 410.040, 410.070, 411.060 & 411.116, 443.450, 443.765, 443.767, 45 CFR 164.512(j)
Statutes/Other Implemented: ORS 124.020,124.050 - 124.095, 125.012, 125.683, 192.355, 192.517, 409.010, 410.020, 410.040, 410.070, 410.150, 411.060, 411.116, 443.769, Oregon Laws 2013 Chapter 352 & 45 CFR 164.512(j)
APD 44-2018, amend filed 12/27/2018, effective 12/27/2018
APD 16-2018, temporary amend filed 06/28/2018, effective 07/01/2018 through 12/27/2018
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
SPD 15-2012, f. & cert. ef. 11-28-12
SPD 7-2012(Temp), f. & cert. ef. 6-1-12 thru 11-28-12
SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10
SPD 21-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10
SPD 10-2006, f. 3-23-06, cert. ef. 4-1-06
SPD 6-2005, f. 4-29-05, cert. ef. 7-1-05
SSD 5-1994, f. & cert. ef. 11-15-94

Or. Admin. R. 411-020-0040 Services Provided

(1) Local offices must follow procedural guidelines consistent with Department policies guiding APS response activities. Although the role of APS is civil rather than criminal investigation, cooperative agreements with regulatory and enforcement agencies, such as local law enforcement, district attorneys, and licensing agencies are desirable.

(2) The Department shall establish and maintain agreements and understandings with other key agencies having a role in protecting the interests and rights of individuals who are the subject of these rules, including the Oregon State Police and the Department of Justice.

(3) The Adult Protective Services function consists of a standard series of activities, including screening, triage or consultation, on-site assessment, investigation, intervention, documentation, and APS risk management.

(4) Deviations from these rules may be warranted to protect the safety of any party or as otherwise allowed by policy. The reasons for these deviations must be reviewed with a supervisor or designee and properly documented in the investigative record.

(5) Adults have the right to make informed choices (as defined in 411-020-0002) that do not conform to societal norms as long as those decisions are not harmful to others. This includes the right to refuse participation in APS assessments, investigation, or intervention. This does not include the right to prevent an investigation from occurring.

(6) The local office must retain records that document the APS functions for a period of 15 years after last activity.

History

Statutory/Other Authority: ORS 124.055, 124.065, 124.070, 409.010, 410.020, 410.040, 410.070, 411.060 & 411.116, 443.450, 443.765, 443.767
Statutes/Other Implemented: ORS 124.050 - 124.095, 409.010, 410.020, 410.040, 410.070 & 411.060, 411.116
APD 44-2018, amend filed 12/27/2018, effective 12/27/2018
APD 16-2018, temporary amend filed 06/28/2018, effective 07/01/2018 through 12/27/2018
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10
SPD 6-2005, f. 4-29-05, cert. ef. 7-1-05
SSD 5-1994, f. & cert. ef. 11-15-94, Renumbered from 411-020-0005
Renumbered from 461-011-0005 by Ch. 784, OL 1981 & AFS 69-1981, f. 9-30-81, cert. ef. 10-1-81
AFS 5-1980, f. & cert. ef. 1-25-80

Or. Admin. R. 411-020-0060 Temporary rule language in effect until 10/27/2026. Screening

(1) All calls or contacts involving the possibility of abuse or self-neglect must be directed to APS screening.

(2) Screening is the skilled interviewing process used to gather and assess information in order to determine eligibility for Adult Protective Services. This activity includes a determination of whether the reported concern meets the definition of abuse or self-neglect.

(3) All complaints regarding a person receiving services in a Nursing Facility must be referred immediately to the APD Nursing Facility Survey Unit (NFSU) for screening, triage, and Facility investigation. NFSU will refer any concerns regarding external parties (e.g. family members) back to APS for screening and potential investigation under Community APS rules.

(4) If the reported concern meets the definition of abuse or self-neglect, screening activities may include, but are not limited to:

(a) Gathering information about the alleged victim's current level of functioning.

(b) Gathering demographic information and the history of the current problem.

(d) Gathering information from collateral sources.

(5) If the reported concern does not meet the definition of abuse or self-neglect, but requires intervention, response shall include referral to other resources, including case management, licensing, APS risk management, or other services as appropriate.

(6) If the reported concern does not meet the definition of abuse or self-neglect or require intervention, but may be addressed by specialized information or assistance, a referral to APS consultation may be appropriate.

(7) If the reported abuse involves an individual who is currently:

(a) Receiving APD case management or eligibility services, the assigned APD worker must be notified.

(b) An adult foster home resident, the local licensor must be notified.

(d) Receiving services from an APD contracted provider, then the appropriate Central APD unit must be notified.

(e) A minor with Child Welfare involvement or an individual up to age 21 receiving services from a Child Caring Agency, then Child Welfare must be notified.

(8) Each local office must establish an after-hours reporting system.

History

Statutory/Other Authority: ORS 124.055, 124.065, 124.070, 409.010, 410.020, 410.040, 410.070, 411.060, 411.116, 443.450, 443.765 & 443.767
Statutes/Other Implemented: ORS 124.050 - 124.095, 409.010, 410.020, 410.040, 410.070, 411.116 & 443.767
APD 5-2026, temporary amend filed 04/22/2026, effective 05/01/2026 through 10/27/2026
APD 44-2018, amend filed 12/27/2018, effective 12/27/2018
APD 16-2018, temporary amend filed 06/28/2018, effective 07/01/2018 through 12/27/2018
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10
SPD 6-2005, f. 4-29-05, cert. ef. 7-1-05

Or. Admin. R. 411-020-0070 APS Consultation

(1) APS consultation is the process by which APS provides specialized information or assistance, enhanced referral, or technical assistance via electronic means, including telephone, fax, or e-mail, to assist in harm reduction.

(2) APS consultation, as an alternative to assessment or investigation, is only appropriate when the reported concern does not meet eligibility criteria for abuse or self-neglect.

(3) The local office must maintain a record of reports resolved by APS consultation.

History

Statutory/Other Authority: ORS 409.010, 410.020, 410.040, 410.070, 411.060, 411.116, 443.450, 443.765, 443.767
Statutes/Other Implemented: ORS 124.050 - 124.095, 409.010, 410.020, 410.040, 410.070, 411.116, 443.767
APD 44-2018, amend filed 12/27/2018, effective 12/27/2018
APD 16-2018, temporary amend filed 06/28/2018, effective 07/01/2018 through 12/27/2018
SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10
SPD 6-2005, f. 4-29-05, cert. ef. 7-1-05

Or. Admin. R. 411-020-0080 Triage

(1) Triage is the APS process of determining the nature and severity of risk to individuals and the immediacy of response required.

(2) The local office shall provide for a prompt and timely initial response to all APS referrals meeting the eligibility criteria established in these rules. The specific times for response are governed by the nature and severity of the reported abuse and the rules and laws related to the category of reported abuse.

(3) General time frames for response as determined by the Department are as follows:

(a) COMMUNITY CASES.

(A) IMMEDIATELY FOR EMERGENCY SITUATIONS: Immediately contact 911 when the evidence presented suggests an emergency situation exists, such as the following:

(i) A human life is in jeopardy.

(ii) The individual is in the process of being harmed due to criminal activity.

(iii) A medical emergency.

(iv) A fire.

(v) There is a clear and present danger of harm to self or others.

(B) BY THE END OF THE SAME WORKING DAY: Initiate an investigation by the end of the same working day when the alleged victim has been identified as being in imminent danger.

(C) BY THE END OF THE NEXT WORKING DAY: Initiate an investigation by the end of the next working day when the individual is identified as being in a hazardous situation that may lead to increased harm or risk.

(D) WITHIN FIVE WORKING DAYS: Initiate an investigation within five working days when screening determines the situation is problematic, one that is chronic or ongoing, or is a situation where an immediate response is unlikely to change the alleged victim's risk level.

(b) ASSISTED LIVING, RESIDENTIAL CARE, AND ADULT FOSTER HOME CASES.

(A) IMMEDIATELY FOR EMERGENCY SITUATIONS: Immediately contact 911 when the evidence presented suggests an emergency situation exists, such as the following:

(i) A human life is in jeopardy.

(ii) The individual is in the process of being harmed due to criminal activity.

(iii) A medical emergency.

(iv) A fire.

(v) There is a clear and present danger of harm to self or others.

(B) BY THE END OF THE SAME WORKING DAY: Initiate an investigation by the end of the same working day when the alleged victim has been identified as being in imminent danger.

History

Statutory/Other Authority: ORS 124.055, 124.065, 124.070, 409.010, 410.020, 410.040, 410.070 & 411.060, 411.116, 443.450, 443.765, 443.767
Statutes/Other Implemented: ORS 124.050 – 124.095, 409.010, 410.020, 410.040, 410.070 & 411.060, 411.116, 443.500, 443.767
APD 44-2018, amend filed 12/27/2018, effective 12/27/2018
APD 16-2018, temporary amend filed 06/28/2018, effective 07/01/2018 through 12/27/2018
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10
SPD 6-2005, f. 4-29-05, cert. ef. 7-1-05

Or. Admin. R. 411-020-0085 Law Enforcement Notification

(1) The Department or local office shall immediately notify law enforcement if any of the following conditions exist:

(a) Reasonable cause to believe a crime has been committed;

(b) Access to the allegedly abused individual is denied and legal assistance is needed in gaining access;

(d) Forensic photographic or other evidence is needed; or

(e) Those required under OAR 411-020-0123 or 411-020-0126.

(2) The Department or local office shall proceed collaboratively with law enforcement in a way that does not further endanger the alleged victim. Any law enforcement officer accompanying the investigator must be identified as such to any party being interviewed.

(3) Written notice, regardless of any verbal notice given, shall be provided to law enforcement for all instances when the Department finds there is reasonable cause to believe a crime has been committed.

(4) When the local office notifies a law enforcement agency of suspected crime committed against an alleged victim, the local office shall retain any record of the law enforcement agency’s confirmation of receipt of notification.

History

Statutory/Other Authority: ORS 124.055, 124.065, 124.070, 409.010, 410.020, 410.040, 410.060 & 410.070, 411.116, 443.450, 443.765, 443.767
Statutes/Other Implemented: ORS 124.050 – 124.095, 409.010, 410.020, 410.040, 410.060 & 410.070, 411.116, 443.500, 443.767
APD 44-2018, amend filed 12/27/2018, effective 12/27/2018
APD 16-2018, temporary amend filed 06/28/2018, effective 07/01/2018 through 12/27/2018
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
SPD 15-2012, f. & cert. ef. 11-28-12
SPD 7-2012(Temp), f. & cert. ef. 6-1-12 thru 11-28-12
SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10
SPD 21-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10

Or. Admin. R. 411-020-0090 Assessment

(1) Assessment is the process by which the APS worker determines the alleged victim's degree of risk, level of functioning, adequacy of information, and ability to protect their own interests. Assessment additionally determines the alleged victim's ability to reduce the risk of harm in their environment and to make informed choices and understand the consequences of those choices. These factors are evaluated in relation to the allegation of abuse or self-neglect.

(2) Assessment in APS cases shall be conducted in person with the alleged victim, usually in the alleged victim's home or the facility where the alleged victim lives.

(3) The assessment may include:

(a) Consultation with family, neighbors, law enforcement, mental health, hospice, in-home services, medical practitioners, domestic violence providers, and other relevant individuals, in keeping with Department confidentiality guidelines.

(b) The use of accepted screening tools as well as the worker's professional judgment to determine the alleged victim's safety and functional abilities.

(4) If there is evidence the alleged victim's cognitive abilities may be impaired, recognized assessment tools may be administered to gauge those abilities. The initial assessment results shall be used as a screening to determine the need for professional diagnostic or clinical evaluation of the alleged victim's capacity to make informed choices, and to determine an appropriate course of action if clinical evaluation is not available.

(5) Upon completion of the initial assessment, APS involvement shall be continued for investigation where there is an alleged perpetrator, or shall proceed directly to intervention where self-neglect is established.

(6) Results of the APS assessment of the alleged victim shall be recorded in the Centralized Abuse Management (CAM) system.

History

Statutory/Other Authority: ORS 410.070, 411.116, 443.450, 443.765, 443.767
Statutes/Other Implemented: ORS 410.070, 411.116, 443.767
APD 44-2018, amend filed 12/27/2018, effective 12/27/2018
APD 16-2018, temporary amend filed 06/28/2018, effective 07/01/2018 through 12/27/2018
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10
SPD 6-2005, f. 4-29-05, cert. ef. 7-1-05

Or. Admin. R. 411-020-0100 Temporary rule language in effect until 10/27/2026. Community Investigation, Documentation, and Notification

(1) Community investigations shall be objective, professional, and thorough.

(2) A community abuse investigation shall be conducted and documented when the alleged perpetrator is reported to have abused:

(a) An older adult or adult with a physical disability residing in a non-facility setting.

(b) An adult residing in an APD licensed facility setting when the alleged perpetrator is not employed by, volunteers for, or is contracted personnel with the facility.

(3) A community self-neglect investigation shall be conducted and documented when an adult eligible for Adult Protective Services is reported to be unable to understand the consequences of their actions or inaction, and that inability leads to, or may lead to, harm or endangerment to themselves. Assessment is a key element of self-neglect investigations.

(4) In completing a community investigation, the APS worker must:

(a) Identify the alleged victim, any alleged perpetrators, and any other parties reported to have information relevant to proving or disproving the allegations.

(b) Conduct interviews with the parties described in section (a) of this section to gather all relevant available evidence. All interviews must be private unless the individual being interviewed requests the presence of someone else. Any individuals listening to the interview must be advised of the confidential nature of the investigation.

(c) Interview the alleged victim and any alleged perpetrators unannounced and in-person, unless a deviation under OAR 411-020-0040(4) is required for the safety of any party, an in-person interview is unable to be obtained, or at the request of law enforcement. Key witnesses should be interviewed in person.

(d) Obtain and review all available documentary or physical evidence relevant to reaching a finding, including any information establishing the severity of the incident under investigation.

(e) The Department may photograph, or cause to have photographed, any alleged victim for the purposes of preserving evidence of the alleged victim's condition observed at the time of the investigation. The photographs shall be considered records and subject to confidentiality rules.

(f) Gather and include evidence relevant to determining the conduct of any alleged perpetrators and the severity of the risk or outcome to the alleged victim.

(g) Create additional investigatory aids, such as maps or drawings that may aid in proving or disproving the allegations.

(h) Maintain a record of interviews and evidentiary review, in notes, recordings, records, photographs, scanned documents, or other appropriate means.

(i) Determine the facts of the case based on a fair and objective review of the available relevant evidence.

(j) Conclude whether the preponderance of the evidence indicates whether abuse or self-neglect is substantiated or unsubstantiated, that the evidence is inconclusive, or that the investigation will be closed administratively without a determination.

(5) Investigations must be documented and closed in the Centralized Abuse Management (CAM) system.

(6) The local office must complete community investigations on or before 120 days from date of screening decision (unless delayed by a concurrent criminal investigation or otherwise by policy) and prepare a final report that includes, but is not limited to, the following information:

(a) The dates, locations, and description of the initial reported abuse.

(b) The date that the investigation was commenced and completed, and by whom.

(d) Relationship of the alleged victim to the reporter, witnesses, and any alleged perpetrators.

(e) A statement of the specific allegations investigated.

(f) The statements of all parties interviewed regarding the allegations.

(g) A description of the documents and records reviewed during the investigation, summarizing their content to the extent necessary to explain their relevance to the investigation and support the findings of fact.

(h) A summary of any direct observations by the investigator that are relevant to the investigation and its findings.

(i) A statement of the factual basis for any findings and a summary of the findings made as a result of the investigation, including attributions to witness statements, documents, or observations that support each finding of fact.

(j) A conclusion.

(k) A summary of protective services offered to the alleged victim, with outcomes, if known.

(l) A summary of referrals to other agencies or authorities resulting from the investigation, with outcomes, if known.

(m) Reasons for any deviations from required timelines or standard practices.

(7) When a community complaint investigation has been completed, the alleged victim and the alleged perpetrators may be informed (verbally, unless notification in writing is requested) that:

(a) There was an allegation of abuse or self-neglect and the type of abuse or self-neglect being investigated.

(b) Appropriate action is being taken.

(A) No abuse or self-neglect was found (unsubstantiated).

(B) Abuse or self-neglect was found (substantiated).

(D) The investigation was closed without a determination of whether abuse or self-neglect occurred (Administrative Closure).

(8) When the community investigation is closed, the local office must retain case records for a period of 15 years after last activity. Final community APS records are maintained and distributed by the local office, as appropriate.

(9) The Department must collect statewide data on all aspects of Adult Protective Services as specified by Department policy and procedure. As reasonably requested, the local offices shall provide data not otherwise available through centralized Department data systems.

History

Statutory/Other Authority: ORS 124.055, 124.065, 409.010, 410.020, 410.040, 410.070, 411.060, 411.116, 443.450, 443.765 & 443.767
Statutes/Other Implemented: ORS 124.050 - 124.095, 409.010, 410.020, 410.040, 410.070, 411.060, 411.116, 443.500 & 443.767
APD 5-2026, temporary amend filed 04/22/2026, effective 05/01/2026 through 10/27/2026
APD 44-2018, amend filed 12/27/2018, effective 12/27/2018
APD 16-2018, temporary amend filed 06/28/2018, effective 07/01/2018 through 12/27/2018
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10
SPD 21-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10
SPD 33-2006, f. & cert. ef. 12-21-06
SPD 6-2005, f. 4-29-05, cert. ef. 7-1-05

Or. Admin. R. 411-020-0105 Community Abuse Investigations Review and Due Process

(1) As used in this rule, “community abuse investigation” means the process of determining whether abuse or self-neglect occurred to an alleged victim:

(a) Who resides in a non-facility setting;

(b) Who resides in a non-licensed care facility;

(c) Who resides in a licensed care facility when the alleged perpetrator is not employed by, volunteers for, or is contracted with the facility; or

(d) Who receives Medicaid funded services from a regulated provider.

(2) CENTRAL APS REVIEW OF COMMUNITY ABUSE INVESTIGATIONS WITH SUBSTANTIATED CONCLUSIONS.

(a) Central APS is responsible for reviewing and approving substantiated allegations in APS Community abuse investigations, not including self-neglect. These reviews must be approved before an investigation is considered completed.

(b) Central APS is notified in the Centralized Abuse Management (CAM) system whenever a local office has completed work on an APS Community abuse investigation that has one or more substantiated allegations against an alleged perpetrator.

(c) Central APS shall review the investigation and associated documents in the Centralized Abuse Management (CAM) system, consulting with local office staff as needed, to ensure that the substantiation is based on a complete and thorough investigation and is supported by a preponderance of the available, documented evidence.

(d) Central APS may issue amendment requests to local offices to request clarification, additional investigative work or other changes to the investigation, documentation, or conclusion. In instances of disagreement with a local office, Central APS may change investigative conclusions as needed, but will not revise information entered by the local office or perform any additional investigative work.

(e) When Central APS confirms a substantiation under these rules, it shall issue a Notice of Substantiated Abuse (NOSA) to the alleged perpetrator in accordance with these rules.

(3) PROVIDING NOTICE OF AN APS SUBSTANTIATED CONCLUSION.

(a) Central APS must deliver a NOSA to the person identified as the alleged perpetrator in the substantiated conclusion in Community abuse investigations in one of the following ways:

(A) By certified mail, restricted delivery, with a return receipt requested to the last known address of the alleged perpetrator; or

(B) By hand delivery to the alleged perpetrator. If hand delivered, the notice must be addressed to the alleged perpetrator and a copy of the notice must be signed and dated by the alleged perpetrator to acknowledge receipt, signed by the person delivering the notice, and filed in the APS case file.

(b) A NOSA is not required if safety concerns have been identified, and providing the notice would substantially increase the risk of harm, or would place the adult victim’s health or safety in imminent danger. This exception may only be made with approval from the APS Program Administrator or designee based on documentation of risk.

(c) The delivery of the NOSA must be documented in the Centralized Abuse Management (CAM) system. A copy of the original NOSA delivered to the alleged perpetrator must be saved in the Centralized Abuse Management (CAM) system. The documentation must include:

(A) Who made the notification;

(B) To whom the notification was made; and

(d) If an alleged perpetrator believes they are entitled, under these rules to a NOSA, but has not received one, the alleged perpetrator may contact Central APS.

(e) The NOSA includes the following:

(A) The investigation number for the APS Community abuse investigation that resulted in the substantiated conclusion.

(B) The name of the alleged perpetrator who has been identified as responsible for the abuse as it is recorded in the case record.

(C) A statement that the APS conclusion was recorded as "substantiated" including a description of the type of abuse identified.

(D) A brief description of how the APS substantiated conclusion was determined.

(E) A statement about the right of the alleged perpetrator to submit a request for review of the substantiated conclusion.

(F) Instructions for making a request for review, including the requirement that the alleged perpetrator provide a full explanation of why they believe the substantiated conclusion is in error.

(G) A statement that the alleged perpetrator waives the right to request review if the request is not received by the Central APS within 30 calendar days the NOSA was mailed.

(4) MAKING A REQUEST FOR AN ADMINISTRATIVE REVIEW OF AN APS SUBSTANTIATED CONCLUSION.

(a) An alleged perpetrator substantiated for abuse in an APS Community abuse investigation may submit a written request for Central APS administrative review using information contained in their NOSA.

(b) The request for administrative review must be received by Central APS within 30 calendar days of the mailing or hand delivery of the NOSA and must include the following information:

(A) Date of the request for review;

(B) Investigation number;

(D) A full explanation of why the alleged perpetrator disagrees with the substantiated conclusion;

(E) Any additional relevant information and materials the alleged perpetrator wants considered during the review;

(F) The alleged perpetrator’s current address and telephone number; and

(G) The alleged perpetrator’s signature.

(5) CENTRAL APS ADMINISTRATIVE REVIEW OF SUBSTANTIATED CONCLUSIONS IN COMMUNITY ABUSE INVESTIGATIONS.

(a) When a timely request for review is received, Central APS must conduct an administrative review and issue a final order to the alleged perpetrator.

(b) The Central APS administrative review must consider the following:

(A) All relevant information and materials contained in the APS Community abuse investigation case file, including the APS Community abuse investigation report and conclusion, screening information, all relevant associated documents, and any new information provided by the alleged perpetrator;

(B) Whether there is a preponderance of evidence to conclude the alleged abuse occurred;

(D) Whether there is a preponderance of evidence to conclude the type of abuse for which the APS Community abuse investigation was substantiated is correctly identified.

(A) Retain the substantiated conclusion;

(B) Change the conclusion to “not substantiated” or “inconclusive”; or

(d) At the conclusion of the review, Central APS must make their recommendations known to the APS Program Manager or designee.

(e) The APS Program Manager or designee must:

(A) Ask questions as needed for clarification;

(B) Consider the recommendations and the basis for the recommendations; and

(i) Retain the substantiated conclusion;

(ii) Change the conclusion to “not substantiated” or “inconclusive”; or

(iii) Change the type of abuse for which the APS Community abuse investigation was substantiated.

(f) The decision and the basis for the decision following the administrative review must be documented in a final order.

(6) NOTICE OF CENTRAL APS ADMINISTRATIVE REVIEW DECISION IN APS COMMUNITY ABUSE INVESTIGATIONS.

(a) The APS Program Manager or designee must prepare a written final order following the administrative review.

(b) The final order must include the following:

(A) Whether there is a preponderance of evidence to conclude that abuse occurred;

(B) Whether there is a preponderance of evidence to conclude the alleged perpetrator was responsible for the abuse;

(C) If the APS substantiated conclusion is changed, whether it will be changed to "inconclusive" or to "not substantiated";

(D) If the conclusion is determined to be “inconclusive” or “not substantiated”, notice of the change will be documented in the Centralized Abuse Management system; and

(E) A summary of the information and reasoning upon which the decisions were based.

(c) Central APS must place the request for administrative review and a copy of the final order following review in the case file and amend the electronic file to appropriately reflect the results of the review.

(d) Central APS must send the final order by certified mail, restricted delivery, with a return receipt requested, to the alleged perpetrator.

(7) LATE ADMINISTRATIVE REVIEW REQUESTS FOR APS COMMUNITY ABUSE INVESTIGATIONS.

(a) Unless other applicable statutes or agency rules provide a different standard, Central APS may accept a late administrative review request if there is good cause for the failure to request the review in a timely manner. “Good cause” exists when an action, delay, or failure to act arises from an excusable mistake, surprise, excusable neglect, reasonable reliance on the statement of a party or agency relating to procedural requirements, from fraud, misrepresentation, or other misconduct of a party or agency participating in the proceeding.

(b) In determining whether to accept a late administrative review request, Central APS may require the request to be supported by an affidavit or other writing that explains why the request for review is late and may conduct such further inquiry as it deems appropriate.

History

Statutory/Other Authority: ORS 124.055, 124.065, 409.010, 410.020, 410.040, 410.070, 411.060, 411.116, 443.450, 443.765 & 443.767
Statutes/Other Implemented: ORS 124.050 - 124.095, 409.010, 410.020, 410.040, 410.070, 411.060, 411.116, 443.500 & 443.767
APD 68-2024, adopt filed 12/11/2024, effective 12/16/2024
APD 41-2024, temporary adopt filed 07/08/2024, effective 07/10/2024 through 01/05/2025

Or. Admin. R. 411-020-0110 Intervention

(1) Intervention is the process by which APS assists the victim to reduce or remove the threat of harm that has placed the victim at risk.

(2) Intervention may include, but is not limited to:

(a) Arranging for emergency services, such as law enforcement and emergency medical care as needed.

(b) Providing education and counseling to the individual at risk and other parties, as appropriate.

(c) Facilitating the delivery of additional available support services, including legal, medical, and other services, and helping to arrange for possible alternative living arrangements or alternate decision makers, as needed.

(d) Providing advocacy to assure the rights of the alleged victim are protected.

(3) Intervention may happen one or more times during the assessment or investigation process, or as an end result of the assessment or investigation. The initial APS intervention is designed to be a short-term crisis response. Longer term interventions may be made available through APS risk management or through non-APS case management.

(4) An individual who can make an informed choice may refuse assistance or intervention. In this case, the worker shall provide the individual with appropriate resource information and a way to re-contact APS if a threat of harm recurs or reaches a level unacceptable to the individual.

(5) If the individual lacks appropriate information to make an informed choice, the worker must provide or arrange for the provision of relevant information in a manner that is timely, accessible to the individual, and balanced, in order to support the individual's right to make an informed choice.

(6) If the individual at risk is unable to make an informed choice due to a lack of capacity, appropriate intervention, if available, may include medical assessment to determine whether capacity may be improved or restored.

(7) If the individual at risk is unable to consent to assessment or treatment, consideration may be given to involuntary intervention, including, as appropriate, guardianship, conservatorship, protective orders, or civil commitment. In all such cases, the intervention initiated must be:

(a) The least restrictive available;

(b) Respectful of the values of the individual at risk; and

(c) Sought only when it has been determined that there is no surrogate decision maker in place, or that such individual is not acting responsibly in that role.

History

Statutory/Other Authority: ORS 124.055, 124.065, 124.070, 125.012, 409.010, 410.020, 410.040, 410.070 & 411.060, 411.116, 443.450, 443.765, 443.767
Statutes/Other Implemented: ORS 124.050 - 124.095, 125.012, 409.010, 410.020, 410.040 & 410.070, 411.116, 443.767
APD 44-2018, amend filed 12/27/2018, effective 12/27/2018
APD 16-2018, temporary amend filed 06/28/2018, effective 07/01/2018 through 12/27/2018
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10
SPD 6-2005, f. 4-29-05, cert. ef. 7-1-05

Or. Admin. R. 411-020-0120 Facility Investigation, Documentation, and Notification

(1) Facility investigations shall be objective, professional, and complete.

(2) A facility investigation shall be conducted and documented when a resident of a facility licensed by APD is reported to have been abused by a licensee, staff member, contractor or volunteer of the facility.

(3) Facility investigations may also occur when a facility resident is reported to have been abused by an alleged perpetrator not employed, contracted or supervised by the facility, to determine whether the licensee or facility staff failed to protect the resident.

(4) In completing a facility investigation, the APS worker must:

(a) Identify the alleged victim, the alleged perpetrators, and any parties reported to have information relevant to proving or disproving the allegation.

(b) Conduct interviews with the parties described in section (a) above to gather all relevant available evidence. Interviews shall be in person and unannounced whenever possible. All interviews must be private unless the individual being interviewed requests the presence of someone else. Any individuals listening to the interview must be advised of the confidential nature of the investigation.

(d) Gather and include evidence relevant to determining the conduct of the alleged perpetrators and severity of the risk or outcome to the alleged victim.

(f) Create additional investigatory aids, such as maps or drawings, that may aid in proving or disproving the allegations.

(g) Maintain a record of interviews and evidentiary review, in notes, recordings, photographs, scanned documents, or other appropriate means.

(h) Determine the facts of the case based on a fair and objective review of the available relevant evidence; and

(i) Conclude whether the preponderance (majority) of the evidence indicates that abuse was substantiated or unsubstantiated, that the evidence is inconclusive, or that the investigation should be closed administratively without a determination.

(5) In conducting facility abuse investigations, the Department protocols governing activities of investigations further include:

(a) Notifying the Department’s Office of Safety, Oversight and Quality (SOQ) if a situation exists in a licensed care facility that may cause SOQ to conduct a survey or provide an immediate regulatory response. This includes reports of facility-wide issues.

(b) Providing an opportunity for the reporter, a designee of the reporter, or both, to accompany the investigator to the site of the reported violation for the sole purpose of identifying individuals or objects relevant to the investigation.

(d) Confirming that immediate protection for facility residents is in place. The worker must obtain and document a safety plan from the provider to correct any problem immediately, and communicate with SOQ as needed.

(6) Investigations must be documented and closed in the Centralized Abuse Management (CAM) system.

(7) The local office must complete the facility investigation within the timelines determined by the Department and relevant statute (unless delayed by a concurrent criminal investigation or otherwise by policy) and prepare a preliminary report that includes, but is not limited to, the following information:

(a) The dates, locations, and a description of the initial reported abuse.

(b) The date that the investigation was commenced and completed, and by whom.

(d) Relationship of the alleged victim to the reporter, witnesses, and alleged perpetrators.

(e) A statement of the specific allegations investigated.

(f) The statements of all parties interviewed regarding the allegation.

(g) A description of documents and records reviewed during the investigation, summarizing their content to the extent necessary to explain their relevance to the investigation, and support the findings of fact.

(h) A summary of any direct observations by the investigator that are relevant to the investigation and its findings.

(j) A conclusion.

(k) A summary of actions taken by the licensee or provider to ensure the safety of the victim and other residents of the facility.

(l) A summary of protective services offered to the alleged victim, with outcomes, if known.

(m) A summary of referrals to other agencies or authorities resulting from the investigation, with outcomes, if known.

(n) Reasons for any deviations from required timelines or standard practices.

(8) When the preliminary facility investigation is closed, the local office shall distribute a copy of substantiated reports to the facility for their information and safety planning. The local office must retain facility investigation records for a period of 15 years after last activity.

(9) Upon receipt of the preliminary report from the local office, SOQ will review and finalize the report. Final facility reports are maintained and distributed by APD central office. When abuse is substantiated, findings may be used to support civil or criminal sanctions against the perpetrators or the care facility.

(10) The Department must collect statewide data on all aspects of Adult Protective Services as specified by Department policy and procedure. As reasonably requested, the local offices shall provide data not otherwise available through centralized Department data systems.

History

Statutory/Other Authority: ORS 124.055, 124.065, 124.070, 409.010, 410.020, 410.040, 410.070 & 411.060, 411.116, 443.450, 443.765, 443.767
Statutes/Other Implemented: ORS 124.050 - 124.090, 409.010, 410.020, 410.040, 410.070 & 411.060, 411.116, 443.500, 443.767
APD 44-2018, amend filed 12/27/2018, effective 12/27/2018
APD 16-2018, temporary amend filed 06/28/2018, effective 07/01/2018 through 12/27/2018
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10
SPD 21-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10
SPD 33-2006, f. & cert. ef. 12-21-06
SPD 6-2005, f. 4-29-05, cert. ef. 7-1-05, Renumbered from 411-020-0050
SSD 5-1994, f. & cert. ef. 11-15-94
Renumbered from 461-011-0005 by Ch. 784, OL 1981 & AFS 69-1981, f. 9-30-81, cert. ef. 10-1-81
AFS 5-1980, f. & cert. ef. 1-25-80

Or. Admin. R. 411-020-0121 Administrative Closure

(1) Administrative closure is a mechanism by which a DHS supervisor or designee may close an assigned investigation without the investigation reaching a conclusion as to if abuse or self-neglect occurred.

(2) Administrative closure is applicable only for specific administrative purposes when it is not feasible to reach an evidentiary conclusion. It is not intended to replace "inconclusive" or "unsubstantiated" findings, which are evidence-based conclusions. As appropriate, protective services of assessment and intervention must be provided.

(3) To qualify for administrative closure, an investigation must be completed to the extent necessary to determine that one or more of the following situations exist:

(a) The basis for assigning and conducting the investigation is discovered to be invalid, because:

(A) The alleged victim does not meet eligibility criteria under these rules.

(B) Additional information is discovered that clearly indicates the report of abuse or self-neglect does not meet criteria for an abuse investigation.

(D) The reported abuse or self-neglect would clearly lead to a repeat investigation. To qualify, the situation must be the same abuse type, substantially the same allegations and involve the same alleged victim and perpetrators as a currently open or a previous investigation. A new assessment of the alleged victim must also indicate that there has been no significant change in the alleged victim’s capacity or risk level since the previous investigation.

(b) Unable to determine because:

(A) Necessary material evidence exceeds the Department’s scope of services and its expertise and authority to reasonably investigate the allegation, including, but not limited to:

(i) Complex legal matters customarily requiring an attorney.

(ii) Court findings.

(iii) Commercial business deals.

(iv) Professional standards and performance.

(v) Medical malpractice.

(vi) The Federal Government or the Oregon Legislature has authorized other entities to respond to the reported concerns, including, but not limited to:

(I) Investigative agencies (e.g. Oregon Department of Justice, Federal Bureau of Investigations, and Inspector General’s Offices);

(II) Licensing bodies (e.g. Medical Board, State Bar, and the Construction Contractors Board); and

(III) The legal system (e.g. attorneys and courts).

(B) Substantial or essential material witnesses and evidence are verified to be unavailable to such an extent that an evidence-based conclusion may not be reached.

(C) Verifiable safety concerns relating to deviations under OAR 411-020-0040(4) extensively prevent adequate gathering of necessary material evidence to determine an evidence-based conclusion.

(D) The investigation has been open more than one year and is not being acted upon or there is no pending action by the Department. The local and central offices must both determine that the investigation may not reasonably proceed to an evidenced-based conclusion.

(4) Before closing an investigation administratively, the following conditions must be met:

(a) A recent assessment of the alleged victim was completed and, as appropriate, protective services provided.

(b) Reasonable diligence was applied to compete the investigation to the extent circumstances allowed or were warranted.

(c) As appropriate, subject matter experts were consulted, including, but not limited to law enforcement, domestic violence service providers, health providers, or attorneys representing the alleged victim.

(d) If there is a reasonable cause to believe a crime has been committed, law enforcement was notified.

(e) As appropriate, referrals were made to other investigation and regulatory entities and advocacy resources.

(5) Administrative closure shall be documented in the Centralized Abuse Management (CAM) system including, but not limited to the following information:

(a) Documentation of interview statements and evidence gathered.

(b) Explanation of any deviations from these rules and the reasonable diligence taken to comply with rules.

(d) Identification of protective services provided to the alleged victim and referrals made to others in response to the situation.

(e) Identification of the supervisors who approved the administrative closure, and date of approval.

History

Statutory/Other Authority: ORS 124.055, 124.065, 124.070, 409.010, 410.020, 410.040, 410.070, 411.060, 411.116, 443.450, 443.765 & 443.767
Statutes/Other Implemented: ORS 124.050 - 124.095, 409.010, 410.020, 410.040, 410.070, 411.060, 411.116, 443.500 & 443.767
APD 44-2018, adopt filed 12/27/2018, effective 12/27/2018
APD 16-2018, temporary adopt filed 06/28/2018, effective 07/01/2018 through 12/27/2018

Or. Admin. R. 411-020-0123 Accessing Protected Health Information, including Records

Protected health information from a health care provider may be obtained during an APS investigation either from a mandatory reporter performing that reporter’s duties required by Oregon statute or as follows:

(1) DISCLOSURE BY HEALTH CARE PROVIDER. A health care provider may disclose, in accordance with 45 CFR 164.512(j), protected health information to APS to prevent or lessen a serious and imminent threat to the health or safety of a person or the public if the health care provider, in good faith, believes the disclosure is necessary to prevent or lessen the threat. APS may request protected health information during a self-neglect or abuse investigation under this provision to prevent or lessen a serious and imminent threat.

(2) COMMUNITY ABUSE INVESTIGATION. During an APS investigation into abuse in a community-based setting where the process under section (1) of this rule does not apply or is declined by the health care provider:

(a) CONSENT BY ALLEGED VICTIM. APS may obtain an alleged victim’s protected health information for an APS investigation with the alleged victim’s consent.

(b) DECLINED CONSENT. If an alleged victim can make an informed choice and declines to consent to APS obtaining protected health information, APS may not obtain the alleged victim's protected health information beyond the information a mandatory reporter is required to disclose.

(c) ALLEGED VICTIM INCAPABLE OF CONSENT. If an alleged victim is an older adult and does not have the ability to make an informed choice to consent to APS obtaining the alleged victim’s protected health information, and the alleged victim does not have a fiduciary or legal representative that consents to APS accessing the alleged victim’s protected health information, or when the fiduciary or legal representative is an alleged perpetrator and refuses to consent to APS accessing the alleged victim’s protected health information, then the following procedure must be followed in order for APS to obtain the protected health information:

(A) APS must request that the appropriate law enforcement agency submit a written request to the health care provider to allow the law enforcement agency to inspect and copy, or otherwise obtain, the protected health information.

(B) APS shall inform the law enforcement agency that the written request must state that an investigation into abuse is being conducted under ORS 124.070 (elder abuse) or ORS 441.650 (nursing facility resident abuse).

(3) HEALTH CARE PROVIDER NOTICE. In investigations where APS is seeking disclosure of protected health information by a health care provider under sections (1) or (2) of this rule, APS shall inform the health care provider, either directly or through the law enforcement agency requesting the information, that the health care provider is required, in accordance with 45 CFR 164.512(c)(2), to promptly inform the individual to whom the protected health information pertains that information has been or shall be disclosed, unless:

(a) The health care provider, in the exercise of their professional judgment, believes that informing the individual may place the individual at risk of serious harm; or

(b) The health care provider is planning to inform a personal representative of the individual and the health care provider reasonably believes the personal representative is responsible for the abuse, neglect, or other injury, and informing such person is not in the best interests of the individual as determined by the health care provider in the exercise of their professional judgment.

(4) LICENSED CARE FACILITY INVESTIGATIONS. During an APS investigation into abuse in a licensed care facility:

(a) OBTAINING RESIDENT RECORDS MAINTAINED BY A LICENSED CARE FACILITY. Licensed care facilities must provide DHS access to all resident and facility records, including protected health information, maintained by the facility as required by their respective Oregon Administrative Rules.

(b) DISCLOSURE BY HEALTH CARE PROVIDER. A health care provider, such as a hospital, a medical office, or a provider other than a licensed care facility, may disclose, in accordance with 45 CFR 164.512(d), an alleged victim’s protected health information to APS as a health oversight agency for purposes of oversight of that facility, including oversight through investigation of reports of abuse of residents in such facility. APS shall inform the health care provider of its authority as a health oversight agency and that such disclosures are permitted in accordance with 45 CFR 164.512(d).

(c) HEALTH CARE PROVIDER REFUSAL TO DISCLOSE. If a health care provider refuses to disclose protected health information to APS as a health oversight agency, APS may follow the procedure set forth in section (2)(c) of this rule if the alleged victim is an older adult.

History

Statutory/Other Authority: ORS 124.055, 124.065, 124.070, 409.010, 410.020, 410.040, 410.070 & ORS 411.060, 411.116, 443.450, 443.765, 443.767, 45 CFR 164.512(j)
Statutes/Other Implemented: ORS 124.050 – 124.095, 409.010, 410.020, 410.040, 410.070, 411.116, 443.450 & 443.500, 443.767, Oregon Laws 2012 Chapter 70, 45 CFR 164.512(j)
APD 44-2018, amend filed 12/27/2018, effective 12/27/2018
APD 16-2018, temporary amend filed 06/28/2018, effective 07/01/2018 through 12/27/2018
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
SPD 15-2012, f. & cert. ef. 11-28-12
SPD 7-2012(Temp), f. & cert. ef. 6-1-12 thru 11-28-12

Or. Admin. R. 411-020-0126 Accessing Financial Records

(1) Financial records may be obtained from a financial institution during an APS investigation into alleged abuse.

(2) DEFAULT STANDARD. APS may not request financial records from a financial institution unless one of the following exceptions applies and the corresponding procedures are followed:

(a) CUSTOMER AUTHORIZATION. APS may request and receive financial records from a financial institution when the customer authorizes such disclosure in accordance with ORS 192.593. The authorization must:

(A) Be in writing, signed, and dated by the customer.

(B) Identify with detail the records authorized to be disclosed.

(D) Contain notice to the customer that the customer may revoke such authorization at any time in writing.

(E) Inform the customer as to the reason for such request and disclosure.

(b) FINANCIAL INSTITUTION INITIATES CONTACT. Where a financial institution initiates contact with APS or a law enforcement agency regarding suspected financial exploitation, the financial institution may share financial records with APS or the law enforcement agency and is not otherwise precluded from communicating with and disclosing financial records to APS or the law enforcement agency.

(c) CUSTOMER INCAPABLE OF AUTHORIZING. If a financial institution has not initiated contact with APS or a law enforcement agency and the alleged victim does not have the ability to make an informed choice to consent to APS obtaining the alleged victim’s financial records, a fiduciary or legal representative who is an alleged perpetrator refuses to authorize disclosure, or the account is jointly held by an alleged perpetrator as well as the alleged victim and the alleged perpetrator refuses to authorize disclosure of the alleged victim’s financial records, these procedures must be followed:

(A) APS shall work with the appropriate law enforcement agency to obtain a subpoena issued by a court or on behalf of a grand jury to request financial records of the alleged victim.

(B) APS shall:

(i) Confirm to the law enforcement agency that an investigation under ORS 124.070 (elder abuse, including older adult residents in a community-based care facility) or under ORS 441.650 (abuse of a nursing facility resident) is open and the individual about whom financial records are sought is the alleged victim in the abuse investigation.

(ii) Provide or work with the law enforcement agency to obtain the name and social security number of the individual about whom financial records are sought.

(C) A financial institution, before making disclosures pursuant to a subpoena described in this section, may require reimbursement to produce records, in accordance with ORS 192.602.

History

Statutory/Other Authority: ORS 59.480 - 59.505, 124.055, 124.065, 124.070, 409.010, 410.020, 410.040, 410.070 & 411.060, 411.116, 443.450, 443.765, 443.767
Statutes/Other Implemented: ORS 124.050 – 124.095, 192.583, 192.586, 192.593, 192.597, 192.600, 192.602, 409.010, 410.020, 410.040, 410.070, 411.060, 411.116, 443.450, 443.500 & ORS 443.767, Oregon Laws 2012 Chapter 70
APD 44-2018, amend filed 12/27/2018, effective 12/27/2018
APD 16-2018, temporary amend filed 06/28/2018, effective 07/01/2018 through 12/27/2018
SPD 15-2012, f. & cert. ef. 11-28-12
SPD 7-2012(Temp), f. & cert. ef. 6-1-12 thru 11-28-12

Or. Admin. R. 411-020-0130 APS Risk Management

(1) APS risk management is the process by which APS provides short-term active assessment and intervention to an alleged victim.

(2) Referral to APS risk management is appropriate:

(a) After the abuse and self-neglect investigation is completed.

(b) When the alleged victim would benefit from protective services, but the situation does not meet criteria for an investigation and all of the following apply:

(A) Assessment indicates the alleged victim is at risk of serious harm.

(B) The alleged victim is eligible for Adult Protective Services under OAR 411-020-0015.

(D) There is no other source of case management or protective services available to the alleged victim.

(c) When otherwise directed by APD or AAA executive management to respond to reported serious harm of a vulnerable adult.

(3) APS risk management includes:

(a) The development and implementation of an individualized plan to reduce the risk of harm to the alleged victim;

(b) Regular active contact with the alleged victim to reassess the risk of harm and the effectiveness of interventions; and

(4) APS risk management continues until assessment demonstrates that:

(a) The level of harm has been reduced to an acceptable level; or

(b) APS involvement no longer benefits the alleged victim.

(5) Approval by a supervisor or designee must be required to continue an APS risk management case beyond one year.

History

Statutory/Other Authority: ORS 124.065, 124.070, 409.010, 410.020, 410.040, 410.070, 411.060 & 411.116, 443.450, 443.765, 443.767
Statutes/Other Implemented: ORS 124.050 - 124.095, 409.010, 410.020, 410.040, 410.070, 411.060 & ORS 411.116, 443.767
APD 44-2018, amend filed 12/27/2018, effective 12/27/2018
APD 16-2018, temporary amend filed 06/28/2018, effective 07/01/2018 through 12/27/2018
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10
SPD 6-2005, f. 4-29-05, cert. ef. 7-1-05

Division 25 INFORMATION AND REFERRAL SERVICES

Or. Admin. R. 411-025-0000 Information and Referral Service

Information and Referral Service is defined as a service to be provided by the Seniors and People with Disabilities Division to adults 18 years of age and older who request information and referrals regarding community, medical, and social resources which might be available to meet their need for such resources. Information and Referral Service:

(1) Shall be provided to persons who request such service or to persons who request such service in behalf of other persons.

(2) Shall be available without regard to a person’s eligibility for public assistance.

(3) Shall be available to the extent that the sharing of such information does not violate any state or federal law or rule regarding confidentiality.

(4) Shall include a follow-up with those community, medical, and social resources which provide or make available such services to meet the person’s request.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
Renumbered from 461-011-0500, AFS 69-1981, f. 9-30-81, ef. 10-1-81
PWC 769, f. 10-20-75, ef. 10-25-75
PWC 750(Temp), f. 8-18-75, ef. 8-21-75

Division 26 GUARDIANSHIPS AND CONSERVATORSHIPS

Or. Admin. R. 411-026-0000 Purpose and Scope

(1) The Department of Human Services (Department), Seniors and People with Disabilities Division (Division) has the authority and responsibility to provide protective services to older adults, age 65 or older, and adults with physical disabilities. For the purpose of providing protective services and administration of services under ORS Chapter 410, the Division may request protections from a court under ORS Chapter 125 for an individual who is functionally incapacitated or financially incapable.

(2) The Division's scope when requesting protections under ORS Chapter 125 includes:

(a) Subject to contractual limitations and budgetary constraints, the Division may pay towards the costs of the petition and the protective proceeding under ORS Chapter 125 when there are no other available resources, or when less restrictive interventions are not available, to protect an older adult or an adult with physical disabilities.

(b) For a protective proceeding, or in the case of an existing protective order issued under ORS Chapter 125, the Division may inform and provide confidential information to the court to prevent or lessen a serious and imminent risk to health and safety of an older adult or adult with physical disabilities. The Division may also provide information about the fiduciary for the purpose of the petition or to report abuse when there is substantiated abuse or a failure to protect by the fiduciary.

(3) The rules in OAR chapter 411, division 026 also establish guidelines for the nomination and payment of legal costs for conservators when necessary to preserve, recover, and locate the individual’s assets for the benefit of the individual to obtain and maintain Department benefits and services, and for estate recovery of public assistance.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 125.012 & 410.070
SPD 20-2010, f. 7-30-10, cert. ef. 8-1-10
SPD 30-2007, f. 11-27-06, cert. ef. 12-01-06
SSD 9-1996, f. & cert. ef. 10-15-96

Or. Admin. R. 411-026-0010 Definitions

For purposes of these rules, the following definitions apply:

(1) "Area Agency on Aging (AAA)" means the agency designated by the Department with responsibility to provide a comprehensive and coordinated system of service to older adults or adults with disabilities in a designated planning and service area.

(2) "Central Office" means the office of the Division that provides statewide support for the local offices.

(3) "Confidential Information" means any health, mental health, financial, substantiated abuse, and legal information that is designated as Department confidential or protected information by federal and state statutes or rule.

(4) "Conservator" means a person who has fiduciary duty and is appointed by a court to administer the financial and property resources of a protected individual under ORS Chapter 125.

(5) "Court" means any court in Oregon having probate jurisdiction or a judge thereof.

(6) "Department" means the Department of Human Services (DHS).

(7) "Disability" means any chronic physical or cognitive condition, such as acquired brain damage or dementia that significantly interferes with an individual’s ability to protect his or herself from harm, abuse, neglect, or exploitation.

(8) "Division" means the Department of Human Services, Seniors and People with Disabilities Division.

(9) "Fiduciary" means a guardian or conservator appointed under the provisions of ORS Chapter 125. A fiduciary may be:

(a) Temporary in which the powers given in the protective order last generally 30 days and may be granted immediately in an emergency;

(b) Limited in which only specific powers (not all powers) are granted in the protective order; and

(c) Full in which all or a substantial amount of powers are granted in the protective order. Full guardianship and conservatorships are generally long term.

(10) "Financially Incapable" means a condition in which an individual is unable to manage his or her financial resources effectively for reasons including but not limited to physical disability or cognitive disability, such as acquired brain injury or dementia.

(11) "Functionally Incapacitated" means a condition in which an individual's ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that the individual presently lacks the capacity to meet the essential requirements for the individual's physical health or safety. "Meeting the essential requirements for physical health and safety" means those actions necessary to provide the health care, food, shelter, clothing, personal hygiene, financial attention, and other care without which serious physical injury or illness is likely to occur.

(12) "Guardian" means a person who has fiduciary duty and is appointed by a court to make personal, health, or other decisions for a functionally incapacitated individual under ORS chapter 125.

(13) "Interested Party" means persons or entities that under ORS 125.060 shall be notified about the filing of a protective order.

(14) "Local Office" means a Division district office or Area Agency on Aging office that delivers the Division's services to their service delivery area.

(15) "Manage Financial Resources" means those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.

(16) "Party to the Proceeding" means the respondent, petitioner, guardian, conservator, and their legal counsel, or any other person allowed by the court to participate in a guardianship or conservatorship proceeding.

(17) "Visitor" means a person who is an officer, employee, or special appointee of the court, is not an interested party in the proceedings, and has been trained or has the expertise to appropriately evaluate the needs of the allegedly incapacitated individual.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 125.012 & 410.070
SPD 20-2010, f. 7-30-10, cert. ef. 8-1-10
SPD 30-2007, f. 11-27-06, cert. ef. 12-01-06
SSD 9-1996, f. & cert. ef. 10-15-96

Or. Admin. R. 411-026-0020 Eligibility for State Payment

When a protective order is the appropriate action to protect an individual, the Division may pay towards the costs of the proceeding for a protective order for an individual who:

(1) Is age 65 years or older or is age 18 or older with a physical disability;

(2) Is functionally incapacitated or financially incapable;

(3) Is unable to make informed choices because he or she lacks the ability to understand the current situation, understand the options available and their likely consequences, and reasonably choose from among those options and communicate the choice;

(4) Is in imminent and serious danger of harm to health, safety, or loss of property or resources;

(5) Has no means, family, or other person or entity able to pay for the protective proceeding, or family or other person or entity that has the ability or willingness to petition for the responsibility for the safety and welfare of the individual;

(6) Shall benefit directly from having a guardian or conservator; and

(7) All available lesser restrictive options to protect his or her health and safety are exhausted or are not feasible.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 20-2010, f. 7-30-10, cert. ef. 8-1-10
SPD 30-2007, f. 11-27-06, cert. ef. 12-01-06
SSD 9-1996, f. & cert. ef. 10-15-96

Or. Admin. R. 411-026-0030 Screening

(1) The local office shall complete a screening of the individual for whom a guardian or conservator is sought. The screening shall:

(a) Provide specific objective evidence of functional incapacitation or financial incapability;

(b) Address whether the individual's ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that he or she presently lacks the essential requirements for:

(A) His or her health or safety; or

(B) Managing his or her financial resources.

(c) If a conservatorship is not required with a guardianship, determine if the guardian or other person or entity needs to exercise powers over the individual’s resources;

(d) Demonstrate that a protective order is necessary to prevent or lessen a serious and imminent threat of harm to the individual; and

(e) Recommend the most appropriate type of protective order, as follows:

(A) Temporary order (emergency order) when there is an imminent and serious danger that needs immediate action.

(B) Limited order when the incapacitated individual needs some but not all decisions to be made by someone else.

(C) Full order when it is demonstrated that long-term and substantial decision-making is needed for the continuing care, comfort, and maintenance of the incapacitated individual.

(D) Other protective orders that may be a less restrictive option.

(2) Unless unattainable, a professional clinical evaluation to determine the individual's capacity to make decisions shall accompany the assessment.

(3) The local office staff may recommend a person to act as a fiduciary. This may be a family member, friend, public or community guardianship program, or a private case manager. Within the capacity of the Division's existing services, procedures, and resources, the local office shall make reasonable efforts to inquire if the person is suitable to act as a fiduciary.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 20-2010, f. 7-30-10, cert. ef. 8-1-10
SPD 30-2007, f. 11-27-06, cert. ef. 12-01-06
SSD 9-1996, f. & cert. ef. 10-15-96

Or. Admin. R. 411-026-0050 Assignment of Attorney

Central office shall establish a list of contracted attorneys to be used by the Department to pursue guardianships, conservatorships, and probate matters. Central office shall nominate an attorney from the list to be the petitioning attorney. The attorney names shall be placed on a geographical list and, unless circumstances require otherwise, be assigned on a rotating basis. Central office may assign a specific attorney in limited circumstances that require a specialized legal need.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 20-2010, f. 7-30-10, cert. ef. 8-1-10
SPD 30-2007, f. 11-27-06, cert. ef. 12-01-06
SSD 9-1996, f. & cert. ef. 10-15-96

Or. Admin. R. 411-026-0060 Request and Authorization for Payment

(1) The local office shall submit to the central office a request for payment for a protective proceeding. Payment may be for attorney fees for the preparation of a petition to the court and the protective proceeding including paid court fees and court visitor fees. The request shall use forms and procedures established by central office.

(2) The local office shall vigorously pursue any means for private, pro-bono, or another agency payment of the protective proceeding before requesting payment from the Division.

(3) The Division shall not authorize payment for guardianship proceedings solely for the provision of medical care or hospitalization.

(4) The local office shall make reasonable efforts to identify and provide the petitioning attorney with any information about existing fiduciaries including but not limited to an agent for power of attorney, health care representative (advanced directives), guardian, conservator, trustee, or representative payee.

(5) The local office shall make reasonable efforts to identify and provide the petitioning attorney with the names and addresses of interested parties that are required to receive notice under Oregon law.

(6) When payment for a requested guardianship or conservatorship is recommended, the central office shall authorize payment by nominating an attorney who has a contract with the Department for protective proceedings and probate matters. The local office shall then contact the attorney and provide the information necessary to petition the court. To be paid through his or her contract with the Department, the attorney must submit a detailed invoice to central office for attorney fees, court fees, and court visitor fees. Payment shall be limited to the amount set forth in the contract.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 20-2010, f. 7-30-10, cert. ef. 8-1-10
SPD 30-2007, f. 11-27-06, cert. ef. 12-01-06
SSD 9-1996, f. & cert. ef. 10-15-96

Or. Admin. R. 411-026-0070 Disclosure of Information

(1) In the absence of an individual’s authorization for disclosure, a local office may disclose the individual’s confidential information or information about the fiduciary or proposed fiduciary when the disclosure is ordered by a court or is:

(a) Reasonably necessary to prevent or lessen a serious and imminent threat to the individual’s health or safety; and

(b) The minimum amount of information to sufficiently achieve the legal requirements of the petition and the protective proceeding and to adequately report abuse to the court.

(2) The local office staff shall identify and mark any information or documents for the petitioning attorney, court visitor, or the court that are to be treated as confidential or protected. If the local office staff verbally presents confidential or protected information to the petitioning attorney, court visitor, or the court, then the staff shall request that the information be treated as confidential and protected as required under ORS 125.012 to prevent further disclosure to the general public.

(3) For the purposes of petitioning the court for a protective order, the local office shall request that the:

(a) Petitioning attorney or person or entity presenting confidential information to the court not disclose Department confidential information that is not identified and marked as confidential and protected;

(b) Disclosure of the confidential information be limited to the parties to the proceeding and their counsel or as otherwise ordered by the court;

(c) Petition is written so as to disclose only the minimal amount of confidential information that is specifically necessary to interested parties who are required to receive notice of the petition, but who are not active parties to the proceedings;

(d) Petition contains language, or there is a motion to seal confidential Department information disclosed to the court, including the petition, visitor’s report, and any Department provided documents, to prevent further disclosure of the confidential information to the public; and

(e) Petitioning attorney follows the Uniform Trial Court Rules 2.100 and 2.110 or similar county court rules for guidance on the treatment of confidential and protected Department information.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 125.012 & 410.070
SPD 20-2010, f. 7-30-10, cert. ef. 8-1-10
SPD 30-2007, f. 11-27-06, cert. ef. 12-01-06
SSD 9-1996, f. & cert. ef. 10-15-96

Or. Admin. R. 411-026-0080 Estate Administration

(1) An individual who receives public assistance through the Department, who is financially incapable, and whose assets need protection, recovery, or for whom disposition of excess property is needed to maintain eligibility for services or benefits, may be referred to the Department's Estate Administration Unit for nomination of a conservator under this rule. The local office shall use forms and procedures established by the Department's Estate Administration Unit.

(2) In determining whether or not a conservatorship should be pursued, the Department's Estate Administration Unit shall consider, including but not limited to, the following factors:

(a) Whether the individual is receiving public assistance from the Department.

(b) Whether the individual is financially incapable.

(A) The likelihood that the assets of the conservatorship estate shall be sufficient to cover expenses and be a benefit to the client; or

(B) The ability to successfully retrieve assets that may have already been conveyed to another person or entity can be successfully retrieved.

(d) The availability of an appropriate conservator or entity to manage the financial affairs of the individual.

(3) When the individual is receiving public assistance, the Department's Estate Administration Unit shall coordinate the nomination of a conservator with the local office providing that assistance.

(4) The conservator shall be paid through the assets of the individual's estate as ordered by the court and in accordance with the Department's contract provisions where a contract has been entered into with the attorney nominated in the matter. When there are no assets from which to pay the costs of establishing or pursuing the conservatorship, the Department may pay the costs as provided through an established contract with the Department.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 20-2010, f. 7-30-10, cert. ef. 8-1-10
SPD 30-2007, f. 11-27-06, cert. ef. 12-01-06
SSD 9-1996, f. & cert. ef. 10-15-96

Division 27 PAYMENT LIMITATIONS IN HOME AND COMMUNITY-BASED SERVICES

Or. Admin. R. 411-027-0005 Definitions

(1) "AAA" means "Area Agency on Aging" as defined in this rule.

(2) "Activities of Daily Living (ADL)" mean those personal, functional activities required by an individual for continued well-being, which are essential for health and safety. Activities include eating, dressing and grooming, bathing and personal hygiene, mobility, elimination, and cognition.

(3) “Adult Foster Homes (AFH)” mean any facility licensed under OAR chapter 411, divisions 049, 050, 051, 052, OAR chapter 411, division 360 or OAR chapter 309, division 040.

(4) "Aging and People with Disabilities (APD)" means the program area of Aging and People with Disabilities, within the Oregon Department of Human Services.

(5) "Area Agency on Aging (AAA)" means the Department designated agency charged with the responsibility to provide a comprehensive and coordinated system of services to older adults and adults with disabilities in a planning and service area. The term Area Agency on Aging is inclusive of both Type A and Type B Area Agencies on Aging as defined in ORS 410.040 and described in ORS 410.210-300.

(6) "Assessment" or "Reassessment" means an assessment as defined in OAR 411-015-0008.

(7) ”Assisted Living Facility” means a building or complex as defined in OAR chapter 411, division 054 rules and licensed by the Oregon Department of Human Services.

(8) "Assistive Devices" means any category of durable medical equipment, mechanical apparatus, electrical appliance, or instrument of technology, service animals, general household items, or furniture used to assist and enhance an individual's independence in performing any activity of daily living.

(9) “Behavior Support Plan” means a plan written by a department approved Behavior Support Services professional to write plans detailing how the licensed provider should respond to an individual’s behavior(s) and/or how to prevent behaviors.

(10) “Caregiver” means any person paid to provide services and supports related to Activities of Daily Living, Instrumental Activities of Daily Living and health related tasks.

(11) "CA/PS" means the "Client Assessment and Planning System" as defined in this rule.

(12) "Case Manager" means an employee of the Department or Area Agency on Aging, who assesses the service needs of an applicant, determines eligibility, and offers service choices to the eligible individual. The case manager authorizes and implements the service plan and monitors the services delivered.

(13) "Central Office" means the unit within the Department responsible for program and policy development and oversight.

(14) "Client Assessment and Planning System (CA/PS)":

(a) Is the single entry data system used for --

(A) Completing a comprehensive and holistic assessment;

(B) Surveying an individual's physical, mental, and social functioning; and

(b) The CA/PS documents the level of need and calculates the individual's service priority level in accordance with the rules in OAR chapter 411, division 015, calculates the service payment rates, and accommodates individual participation in service planning.

(15) "Consumer Choice" means an individual has been informed of alternatives to nursing facility services and has been given the choice of institutional services, Medicaid home and community-based service options, or the Independent Choices Program.

(16) "Contracted In-Home Care Agency” means an incorporated entity or equivalent, licensed in accordance with OAR chapter 333, division 536, that provides hourly contracted in-home services to individuals served by the Department or Area Agency on Aging.

(17) "Cost Effective" means being responsible and accountable with Department resources. This is accomplished by offering less costly alternatives when providing choices that adequately meet an individual's service needs. Those choices consist of the available services under the Medicaid home and community-based service options, the utilization of assistive devices, natural supports, architectural modifications, and alternative service resources (defined in OAR 411-015-0005) not paid for by the Department.

(18) "Department" means the Oregon Department of Human Services (ODHS).

(19) "Distressed Provider Relief Fund" means the program described in OAR chapter 411, division 029 designed to provide additional compensation to providers who meet the criteria.

(20) "Enhanced Wage Add-on Program" means the program described in OAR 411-027-0160 designed to provide additional compensation to providers who meet the criteria.

(21) "Exception" means a Department approved payment, rate or authorized hours based on the Department’s determination that the individual’s service needs exceed those assumed in the rate methodologies including the minimum hours of care defined in the payment tiers or specific needs contract.

(22) "Homecare Worker" means a provider, as described in OAR 411-031-0040, that is directly employed by a consumer to provide hourly services to the eligible consumer.

(a) The term homecare worker includes consumer-employed providers in the Spousal Pay and Oregon Project Independence Programs. The term homecare worker also includes consumer-employed providers that provide state plan personal care services to older adults and adults with physical disabilities. Relatives providing Medicaid in-home services to an individual living in the relative's home are considered homecare workers.

(b) The term homecare worker does not include Independent Choices Program providers or personal care attendants enrolled through the Office of Developmental Disability Services or the Addictions and Mental Health Division.

(23) "Hourly Services" mean the in-home services, including activities of daily living and instrumental activities of daily living, that are provided at regularly scheduled times.

(24) "Independent Choices Program (ICP)" means the self-directed in-home services program in which a participant is given a cash benefit to purchase goods and services identified in a service plan and prior approved by the Department or Area Agency on Aging.

(25) "Individual" means the person applying for, or eligible for, services. The term "individual" is synonymous with "client", "participant", "consumer", and "consumer-employer."

(26) "In-Home Services" mean those services that meet an individual's assessed need related to activities of daily living and instrumental activities of daily living provided in the individual’s home or family’s home.

(27) "Instrumental Activities of Daily Living (IADL)" mean those activities, other than activities of daily living, required by an individual to continue independent living. The definitions and parameters for assessing needs in IADL are identified in OAR 411-015-0007.

(28) "Natural Supports" or "Natural Support System" means resources and supports (e.g., relatives, friends, significant others, neighbors, roommates, or the community) who are willing to voluntarily provide services to an individual without the expectation of compensation. Natural supports are identified in collaboration with the individual and the potential "natural support". The natural support is required to have the skills, knowledge and ability to provide the needed services and supports.

(29) "Rate Schedule" means the rate schedule maintained by the Department in OAR 411-027-0170 and posted at https://www.oregon.gov/odhs/providers-partners/seniors-disabilities/Documents/rate-schedule.pdf.

(30) “Residential Care Facility (RCF)” means a building or complex as defined in OAR chapter 411, division 054 rules and licensed by the Oregon Department of Human Services.

(31) "These Rules" mean the rules in OAR chapter 411, division 027.

(32) “Tier” refers to the rate level assigned to an eligible individual in an Adult Foster Home or Residential Care Facility, based on their assessed need. Tiers are determined using a point system evaluating the individual’s ability to perform each component of Activities of Daily Living (ADLs), Instrumental Activities of Daily Living (IADLs) and health-related tasks as documented in the CA/PS assessment.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 12-2026, amend filed 06/18/2026, effective 06/24/2026
APD 23-2025, temporary amend filed 12/29/2025, effective 01/01/2026 through 06/29/2026
APD 2-2023, amend filed 02/08/2023, effective 02/10/2023
APD 41-2022, temporary amend filed 08/19/2022, effective 08/19/2022 through 02/14/2023
APD 5-2022, amend filed 03/01/2022, effective 03/03/2022
APD 31-2021, temporary amend filed 09/03/2021, effective 09/07/2021 through 03/05/2022
APD 41-2020, amend filed 10/09/2020, effective 10/15/2020
APD 27-2020, temporary amend filed 06/25/2020, effective 07/01/2020 through 10/30/2020
APD 18-2020, temporary amend filed 05/18/2020, effective 05/18/2020 through 10/30/2020
APD 9-2018, amend filed 03/28/2018, effective 03/29/2018
APD 20-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 03/29/2018
APD 3-2016, f. 3-4-16, cert. ef. 3-18-16
APD 18-2015(Temp), f. & cert. ef. 9-21-15 thru 3-18-16
APD 33-2014, f. & cert. ef. 9-2-14
APD 4-2014(Temp), f. & cert. ef. 3-20-14 thru 9-16-14
SPD 7-2008, f. 5-29-08, cert. ef. 6-1-08

Or. Admin. R. 411-027-0020 Payment Limitations in Home and Community-Based Services

(1) PAYMENT FOR SERVICES.

(a) Service payments under these rules are limited to services provided under Oregon's Medicaid State Plan K Option for individuals served through the Department’s Aging and People with Disabilities program area.

(b) Home and community-based services include, but are not limited to:

(A) In-home services (consumer-employed providers and contracted in-home care agencies).

(B) Residential care facility services.

(D) Adult foster home services.

(E) Specialized living services.

(F) Adult day services.

(G) Home-delivered meals.

(2) PAYMENT BASIS.

(a) Unless otherwise specified, service payment is based upon an individual's assessed need for services as documented in CA/PS.

(b) Payments for home and community-based services are not intended to replace the resources available to an individual from the individual's natural support system. The Department may authorize paid services only to the extent necessary to supplement potential or existing resources within an individual's natural supports system.

(c) An individual with excess income must contribute to the cost of services pursuant to OAR 461-160-0610 and OAR 461-160-0620.

(d) Service plans are based upon less costly means of providing adequate services consistent with consumer’s assessed need and choice.

(e) An individual's progress is monitored by Department or AAA local office staff. When a change occurs in the individual's service needs that may warrant a change in the service payment rate, staff must update the service plan.

(3) SERVICE PAYMENTS. All service payments must be prior authorized by the Department or AAA local office staff.

(a) Department and AAA case managers authorize service payments from the rate schedule based on an individual's service program and assessed need for services documented in CA/PS.

(b) Any rate that differs from the rate schedule must be pre-authorized by the Central Office.

(4) RATE SCHEDULE. Services are paid at the rate in the Rate Schedule at the time of the service. The rate schedule must be updated:

(a) When there is an increase in a rate on the schedule; or

(b) Thirty (30) days prior to when any rate is reduced.

(5) SPOUSAL SERVICES. The Department does not make direct payments to a spouse for providing community-based services except for in-home services as described in OAR chapter 411, division 030.

(6) PAYMENTS FOR ADULT DAY SERVICES.

(a) Payments to any Medicaid-contracted adult day services program, as described in OAR chapter 411, division 066, are authorized by Department or AAA local office staff and made in accordance with the rate schedule.

(b) Adult day services may be authorized as part of an overall plan of services for service-eligible individuals and may be used in combination with other community-based services if adult day services are the appropriate resource to meet an identified need.

(c) Department, or AAA local office staff, may authorize adult day services for payment as a single service or in combination with other home and community-based services. Adult day services are not authorized or paid for if another provider has been authorized payment for the same service. Payments authorized for adult day services are included in computing the total cost of services.

(d) The Department pays for a half day of adult day services when four or less hours of services are provided, and pays for a full day of adult day services when more than four, but less than 24 hours are provided.

(7) PAYMENT FOR HOME DELIVERED MEALS.

(a) Payments to any Medicaid-contracted home delivered meals provider as described in OAR chapter 411, division 040 are authorized by Department or AAA local office staff and made in accordance with the rate schedule.

(b) Medicaid home-delivered meals may be authorized as part of an overall plan of services for service-eligible individuals and may be used in combination with other in-home services if meals are the appropriate resource to meet an identified need.

(8) PAYMENTS TO ASSISTED LIVING FACILITIES. Payments to any Medicaid-contracted assisted living facility (ALF) as defined in OAR 411-054-0005 are authorized by Department or AAA local office staff and made in accordance with the rate schedule.

(a) The monthly service payment for an individual receiving services in an ALF is based on the individual's degree of impairment in each of the six activities of daily living as determined by CA/PS and the payment levels described in paragraph (c) of this subsection. The individual's initial service plan must be developed prior to admission to the ALF and must be revised if needed within 30 days. The individual's service plan must be reviewed and updated at least quarterly or more often as needed as described in OAR 411-054-0034.

(b) Activities of daily living are weighted for purposes of determining the monthly service payment as follows:

(A) Critical activities of daily living include elimination, eating, and cognition and behavior.

(B) Less critical activities of daily living include mobility, bathing, personal hygiene, dressing and grooming.

(A) Level 1 -- Service priority level 1-13 eligible individuals are qualified for Level 1 or greater.

(B) Level 1 -- Service priority level 14-17, but would require institutionalization without supports within 30 days if authorized by Central Office.

(D) Level 3 -- Individual requires assistance in four to six activities of daily living or requires assistance in elimination, eating, and cognition.

(E) Level 4 -- Individual is full assist in one or two activities of daily living or requires assistance in four to six activities of daily living plus assistance in cognition.

(F) Level 5 -- Individual is full assist in three to six activities of daily living or full assist in cognition and one or two other activities of daily living.

(d) The reimbursement rate for Department individuals receiving Medicaid services shall not be more than the rates charged by private paying individuals receiving the same type and quality of services.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 9-2018, amend filed 03/28/2018, effective 03/29/2018
APD 20-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 03/29/2018
APD 33-2014, f. & cert. ef. 9-2-14
APD 4-2014(Temp), f. & cert. ef. 3-20-14 thru 9-16-14
SPD 7-2008, f. 5-29-08, cert. ef. 6-1-08, Renumbered from 411-027-0000
SPD 5-2007, f. 4-16-07, cert. ef. 4-17-07
SPD 27-2006(Temp), f. 10-18-06, cert. ef. 10-23-06 thru 4-20-07
SPD 39-2004, f. 12-30-04, cert. ef. 1-5-05
SPD 21-2004(Temp), f. 7-31-04, cert. ef. 8-1-04 thru 1-5-05
SDSD 10-2001, f. 12-27-01, cert. ef. 1-1-02
SDSD 5-2001(Temp), f. & cert. ef. 3-8-01 thru 8-3-01
SDSD 1-2001(Temp), f. & cert. ef. 2-5-01 thru 8-3-01
SDSD 2-1999, f. 3-1-99, cert. ef. 4-1-99
SDSD 1-1999, f. & cert. ef. 3-1-99
SDSD 3-1998, f. 2-27-98, cert. ef. 3-1-98
SSD 9-1993, f. & cert. ef. 12-1-93
SSD 2-1993, f. 3-19-93, cert. ef. 4-1-93
SSD 9-1989, f. 6-30-89, cert. ef. 7-1-89
SSD 6-1988, f. & cert. ef. 7-1-88
SSD 13-1987, f. 12-31-87, cert. ef. 1-1-88
SSD 4-1987(Temp), f. & cert. ef. 7-1-87
SSD 16-1985, f. 12-31-85, cert. ef. 1-1-86
SSD 12-1985(Temp), f. & cert. ef. 9-19-85
SSD 10-1985, f. & cert. ef. 8-1-85
SSD 3-1985, f. & cert. ef. 4-1-85
SSD 9-1984(Temp), f. & cert. ef. 11-1-84

Or. Admin. R. 411-027-0025 Payment for Residential Care Facility and Adult Foster Home Services

The Department reimburses for services provided to individuals residing in a residential care facility or an adult foster home according to the following:

(1) Service Payment. The provider must agree to accept an amount determined pursuant to OAR 461-155-0270 for room and board and a service payment determined by the Department pursuant to OAR 411-027-0020 or 411-027-0050 as payment in full for all services rendered to an individual.

(2) Unless otherwise specified in this rule, a tiered rate model is paid for all eligible individuals in accordance with the rate schedule or collective bargaining agreement.

(3) Service Rates. Service rates are based on an individual's assessed need for services as documented in CA/PS. Service eligibility levels are assigned based on the degree of assistance an individual requires with activities of daily living, instrumental activities of daily living, health related tasks and other activities that must be performed by a provider.

(4) Acuity-Based Rate Model.

(a) Adult Foster Homes and Residential Care Facilities will receive payments based on an Acuity-Based Rate Model. The Acuity Based Rate Model is based on an individual’s assessed level of need in Activities of Daily Living (ADLs), Instrumental Activities of Daily Living (IADLs), cognition, behavior, and health related treatment need as determined by the CA/PS assessment. Each component of the ADL and IADL shall receive points based on the following assessed level of need:

(A) Independent equals 1 point

(B) Minimum Assist equals 2 points

(D) Substantial Assist equals 5 points

(E) Full Assist equals 6 points

(F) Additional points shall be assigned based if either of the following criteria is met:

(i) Full assist in the components of self-preservation, decision-making, or ability to make self-understood equals 10 points.

(ii) Substantial or full assist in the component of challenging behaviors equals 20 points.

(iii) An individual who meets the criteria in (ii), will only receive an additional 20 points. The points awarded in (i) and (ii) are not combined.

(iv) Complex health related treatment tasks, as documented in the individuals CA/PS, that requires caregiver assistance on a regular basis but less than once per day equals 1 point.

(v) Complex health related treatment tasks, as documented in the individuals CA/PS, at least daily and requires caregiver assistance each time equals 3 points.

(b) Individuals will be placed on payment tiers based on their total score. Tiers are assigned based on the following scores:

(A) Tier 1 equals 0 to 40 points.

(B) Tier 2 equals 41 to 55 points.

(D) Tier 4 equals 83 -106 points.

(E) Tier 5 equals 107 or more points.

(c) Funded Caregiving Hours. For Adult Foster Homes each tier funds one caregiver on duty 24 hours a day and funds additional caregiving hours per day for each individual as follows:

(A) Tier 1 equals 0 hours.

(B) Tier 2 equals 2 hours.

(D) Tier 4 equals 8 hours.

(E) Tier 5 equals 10 hours.

(d) An individual who is eligible for Extended Waiver Eligibility, as defined and authorized in OAR 411-015-0030, is only eligible for Tier 1 payments.

(5) Payment Responsibilities.

(a) An individual is entitled to retain a personal allowance plus any income disregards pursuant to OAR 461-160-0620.

(b) An individual is responsible for payment of the room and board amount pursuant to OAR 461-155-0270.

(A) An individual eligible for Medicaid under OAR chapter 410, division 200 and eligible for long term care services under OAR 411-015-0100 living in community-based care facilities may be eligible for room and board assistance if the individual’s gross income is less than the room and board amount defined in OAR 461-155-0270. The Department issues a special needs payment to the facility, on the individual’s behalf, for the difference between the individual’s income and the room and board standard.

(B) An individual eligible for Medicaid under OAR chapter 410, division 200 and receiving room and board assistance must apply for all benefits for which the individual may be eligible to continue to receive the room and board assistance. Individuals must follow all appeal options if applicable.

(c) An individual must contribute any income in excess of the personal allowance, income disregards, and room and board payments to the provider toward the service payment pursuant to OAR 461-160-0610 and OAR 461-160-0620.

(d) The Department issues payment to the provider for the difference between the service payment and the available income of the individual.

(6) The provider may not charge the individual, a relative or a representative of the individual, for any costs or items for which the Department makes payment for.

(7) The Department is not responsible for damages to the provider's home, facility or property, or obligations entered into with the individual.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 12-2026, amend filed 06/18/2026, effective 06/24/2026
APD 23-2025, temporary amend filed 12/29/2025, effective 01/01/2026 through 06/29/2026
APD 9-2018, amend filed 03/28/2018, effective 03/29/2018
APD 20-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 03/29/2018
APD 33-2014, f. & cert. ef. 9-2-14
APD 4-2014(Temp), f. & cert. ef. 3-20-14 thru 9-16-14
SPD 7-2008, f. 5-29-08, cert. ef. 6-1-08
SDSD 10-2001, f. 12-24-01, cert. ef. 1-1-02, Renumbered from 411-027-0100
SDSD 4-1998, f. 6-25-98, cert. ef. 7-1-98
SDSD 3-1998, f. 2-27-98, cert. ef. 3-1-98

Or. Admin. R. 411-027-0050 Exceptions to Payment Limitations in Home and Community-Based Services

(1) Eligibility for Exceptions.

(a) Exceptions for in-home services as defined in OAR 411-030-0020 are not subject to this rule.

(b) Exceptions will only be granted when the requirements of this rule are met and the provider submits all requested documentation, as required by this rule verifying that additional caregiving was delivered to each current Individual as funded by their respective Tiers and exceptions.

(A) Adult Foster Homes; or

(B) Residential Care Facilities, including Intensive Intervention Communities; or

(D) Residential Treatment Homes or Residential Treatment Facilities as defined and licensed in accordance with OAR 309-035-0105 (77) and (78).

(d) Exceptions are not allowed for:

(A) Individuals served under a specific needs contract(s) unless the Department has determined a specific Individual has care needs that require additional staff hours beyond what is provided by the contract;

(B) Assisted Living Facilities;

(C) Nighttime care needs that fall outside of regular or anticipated routines. Occasional night needs are not eligible for an exception.

(D) Anticipatory or just in case needs.

(e) The amount of any approved exception is based on the additional Caregiver staff hours required to meet the Individual’s assessed and verified ADL, IADL, health related tasks, or behavioral needs per OAR chapter 411, division 15 that exceed the service expectations in licensing rules. For Individuals residing in AFHs, the needs must also exceed all the hours funded by Individuals’ assigned Tier.

(f) Exceptional hours may be approved to monitor the Individual when they have a history of physically or sexually harming others and there is a documented likelihood that the Individual could harm themselves or others in the immediate future.

(g) For providers referenced in (1)(c)(B), (C), and (D) of this rule, exceptions are only allowed when the consumers residing in those settings have behavioral needs that require regular one to one intervention to address elopement or self-harming behaviors and will be approved for the number of hours needed to meet the exceptional care needs.

(h) At the sole discretion of the Department, an exception may be granted without required documentation if an individual is in an unsafe or dangerous situation. Such exception may not exceed 90 days. Providers must submit the required documentation within that time period, or the exception will end. Documentation may include, but is not limited to:

(A) Documentation of medical conditions or treatments that may drive care needs;

(B) Medical documentation that the way services are being provided is appropriate to the needs of the Individual;

(C) Documentation from medical professionals, a Long-Term Care Community Nurse or a Behavior Support Specialists that reflect the needs that meet exceptional criteria;

(D) The reasons for increased duration and frequency of care need or health related tasks;

(E) Other information explaining or related to the need for additional hours; and

(F) Diagnosed psychiatric conditions, period(s) of institutionalizations or other documented behavioral health history that demonstrates the Individual poses a current threat or the high likelihood that the Individual will pose a threat of harm to themselves, the community, other Individuals in the facility, the provider and/or caregivers.

(G) Past criminal charges with period(s) of incarcerations, that demonstrates the Individual poses a current threat or the high likelihood that the Individual will pose a threat of harm to themselves, the community, other Individuals in the facility, the provider and/or caregivers.

(i) For Adult Foster Homes, exceptions are limited to needs that exceed the level of staffing required by the Individual’s tier and requires:

(A) One-to-one assistance or supervision for a significant amount of time to manage behavioral care needs.

(B) Two or more staff to provide ADL task assistance to the Individual at the same time;

(C) Additional frequent monitoring due to a history in the last 90 days of behaviors that currently endanger the individual, other Individuals in the facility, the community and/or caregivers and there is a likelihood of harm to the Individual or other Individuals;

(D) To meet ongoing care needs of the Individual that occur during sleeping hours. Exceptions approved for night needs will not exceed 8 hours per individual for a 24-hour period and may be reduced when there are multiple individuals requiring night care and the care needs of all Individuals in the facility can be met by one awake caregiver;

(E) Additional staff to assist with ADL, IADL or health related tasks due to the Individual experiencing false memories that has resulted in inaccurate or distorted reporting of events and leading to multiple false allegations of abuse or criminal acts against others.

(j) Exceptions for more than one Individual in a facility will only be allowed if:

(A) The exception request meets the requirements in these rules.

(B) The information provided indicates the assessed needs of each individual are independently documented in the individual’s person-centered service plan.

(C) For Adult Foster Homes, the provider has supplied evidence they can and will provide the staffing for all the required staffing in the tiers for their current Individuals and approved exception hours in the home. This evidence may include but is not limited to, staffing plans and payroll records.

(k) Exceptions will not be approved when:

(A) Proposed services are not based on the Individual’s assessed service needs, except as otherwise provided in these rules;

(B) Proposed services are not medically appropriate or necessary as determined by a qualified medical professional;

(D) Proposed services include activities or instrumental activities of daily living not allowed in OAR 411-015-0006 and 411-015-0007;

(E) Proposed services are not covered in the 1915(k) State Plan, OAR 411-015-0006, or OAR 411-015-0007;

(F) Proposed tasks are not allowed in OAR 411-015-0006 and OAR 411-015-0007 unless identified in the Individual’s behavior support plan, or directed by a qualified medical professional;

(G) Proposed exception request includes building utilities, food, or, building maintenance costs;

(H) Proposed services address needs that do not require additional caregiver hours or not documented in the individual’s CA/PS;

(I) Proposed hours or services include supplementing the income for the provider, owners or investors of the facility or are not directly related to the need for additional care;

(J) Proposed services are to provide wages to caregivers beyond the established hourly wage for exceptions;

(K) Proposed services are based solely on fire evacuation needs;

(L) The exceptional need could be provided by durable medical equipment or other community resources;

(M) Staffing plans and payroll records indicate the exceptional hours are being provided concurrently to other Individuals, based on their Tier, to other approved exceptions or other required staffing;

(N) Proposed services are meant to provide companionship hours;

(O) Proposed services are to monitor the Individual unless the reason for monitoring is otherwise allowed in the rules; or

(P) The provider fails to provide sufficient payroll documentation and staffing schedules, as required by this rule, that demonstrates they have been providing staffing as required in each of the Individual’s tier and each Individual’s exception as applicable.

(2) INITIATION OF AN EXCEPTION REQUEST

(a) A request for an exception may be initiated by the provider, the Individual, or the Individual’s representative.

(b) A request for an exception may be initiated either orally or in writing by an Individual or the Individual’s representative to their case manager. An exception request initiated by an Individual or their representative can only be considered once the provider submits the required documentation requested by Department.

(A) How the Individual’s assessed needs or documented safety needs exceed the staffing levels provided by the assessed rate and minimum staffing levels required by staffing expectations in the relevant licensing administrative rules.

(B) The request must be in writing and include the Department assessment calculator that documents the amount of time it takes to complete each task the exceptional hours would support.

(C) The specific ADL(s), IADL(s), health related task or behavioral need for which the exception is being requested.(D) A written staffing plan is submitted from the adult foster home provider that demonstrates they do provide sufficient caregiver hours for the Individual’s request, any other exceptions in the adult foster home and Tier staffing for all Individuals in the home. The staffing plan must include an attestation from the provider that the staffing plan is true, accurate and the provider intends to provide the additional caregiver hours.

(d) Requests with incomplete information, incomplete documentation or information that doesn’t support the exception request will be denied and returned to the requestor as a denial.

(e) The Department may require additional information to be submitted by the provider prior to making a decision. This information may include, but not limited to:

(A) The Individual’s service plan or Care Plan;

(B) Medical Records;

(D) Payroll records that show the provider is appropriately staffing hours required by the Individuals’ assigned Tier and all existing exceptions in the facility as applicable.

(E) Home health or hospice reports if available;

(F) Long Term Care Community Nursing (LTCCN) or other nursing assessments and notes, if available; and

(G) A Behavior Support Plan completed by a Department contracted Behavior Support Specialist if the exception is based on behavioral needs.

(f) An exception request will be denied and returned to the requestor if the additional documentation is not submitted by the date specified in writing by the Department.

(3) PROCESSING EXCEPTION REQUESTS.

(a) Prior to forwarding any request for an exception to the Department’s APD Central Office, the case manager must discuss with the requestor whether there are alternate ways to meet the Individual’s needs consistent with the Individual’s right to independence and choice. This discussion must be documented in the Oregon Access Narration.

(b) After discussing alternative ways to meet the Individual’s needs, and the requestor wishes to continue with the exception request, the case manager will forward the exception request to their manager for review and approval. Once approved, the manager will forward the request to the Department’s APD Central Office for a decision.

(c) The CA/PS assessment must represent the Individual’s current condition and functioning unless an urgent situation exists as referenced in these rules.

(d) If the CA/PS assessment does not reflect the needs described in an exception request, a new assessment will be required before the rate can be renewed unless an urgent situation exists as referenced in these rules. When there is an urgent situation, a new CA/PS must be completed and demonstrate the Individual’s needs by the date required by the Department’s Central Office.

(4) The following required Documentation must be maintained by the provider and available to the Department at any time:

(a) For all approved exception requests providers must maintain the following documentation:

(A) Staffing schedules showing the dates and times each caregiver worked in the facility.

(B) For exceptions based on behaviors, the following must also be maintained:

(i) The frequency of behavioral interventions performed by caregivers, if applicable to the approved exception.

(ii) Narrative notes and care plans that demonstrate Behavioral Support Plans are implemented

(C) Payroll records, including pay stubs which show income tax withholdings, payroll tax withholdings, hours worked, pay periods, and hourly rate of pay.

(b) When the Department has concerns about the accuracy of the records submitted, when there are reports the provider has not staffed appropriately and/or when the provider has a history of not staffing exception(s), the Department may require additional documentation to ensure the exception is appropriate for the Individual or to determine if the staffing required by the exception has been provided. This documentation can include, but is not limited to:

(A) Verifiable records showing taxes were withheld and reported to the appropriate government agency.

(B) Verifiable documentation payroll taxes were paid to the appropriate government agency.

(c) Required documentation must be available to the Department at all times and provided immediately upon request unless the Department has given a different timeline.

(5) EXCEPTION DECISIONS.

(a) Only the Department’s APD Central Office can approve exceptions and has final decision authority and discretion over the approval or denial of an exception.

(b) An exception may be approved temporarily with documentation requirements and/or actions the provider must implement to mitigate the need for an exception. Any required documentation or other requirements will be communicated to the provider in writing.

(A) There is no demonstrated need for the exception;

(B) The provider fails to submit sufficient documentation to show that all exceptions within the adult foster home can be appropriately staffed.

(d) Exceptions will be approved until the Individual’s current CA/PS assessment is due for renewal, or for a shorter period when:

(A) The Individual is discharging from a hospital;

(B) The exception was approved due to an urgent situation as specified in these rules;

(C) Medical records or verification from the Individual’s medical or behavioral health professional indicate that the need for additional caregiving hours may be temporary;

(D) When the exception is for behavioral or cognitive needs and Individual doesn’t have a behavior support plan;

(E) The provider has a history of not appropriately staffing exceptions, an Intensive Individual Rate or specific need contracts, including instances of licensing violations related to insufficient or unqualified staff;

(F) The Department determines there is reason to believe the Individual may not require the exception on a long-term basis.

(G) The Department has reports of licensing complaints or adult protective service allegations.

(H) The request for an exception renewal was not received timely.

(e) Renewals of exception requests must be requested prior to the expiration date and must include:

(A) Payroll records, staffing schedules, as specified in this rule that demonstrate the additional caregiving hours as funded by the exception were provided;

(B) Documentation as specified in OAR 411-027-0050 (2) (a) – (g);

(f) Exceptions may only be renewed when:

(A) The Individual’s CA/PS assessment continues to show the need for the exception;

(B) The provider has demonstrated they have provided the additional caregiver hours as required by all Individuals’ Tiers and funded by all exceptions in the facility.

(g) Exceptions may be terminated, denied or partially approved when:

(A) The documentation does not support the requested number of exceptional hours. This includes instances where the requestor did not submit sufficient evidence to allow APD Central Office to make a decision or did not complete the required forms within the timeframe set by the Department;

(B) The staffing plan does not demonstrate sufficient proposed staffing for the requested exception and other existing exceptions and Tiers in the facility.

(C) When the Individual’s CA/PS assessment does not reflect the need for additional caregiving hours unless an urgent situation exists as referenced in these rules.

(D) As applicable, when the Individuals Behavior Support Plan doesn’t reflect the behavioral needs or interventions as documented in the exception request.

(E) The Individual’s medical documentation doesn’t support the number of exceptional hours requested, when alternatives could be tried or when the verification doesn’t address all of the requirements by OAR 411-027-0050 (2) (c) (D) (i) –(vi).

(F) When the Provider is not able to supply documentation as required by the Department or taken actions that could mitigate the need for an exception.

(G) When Provider has a history of not appropriately staffing exceptions, an Intensive Individual Rate or specific need contracts, on multiple occasions. This includes instances of licensing violations related to insufficient or unqualified staff.

(h) If the exception request is partially approved, terminated or denied as described in this subsection, a written decision will be provided to the provider indicating the reasons for the action.

(i) When exception orientation training has been temporarily waived due to lack of availability or an urgent situation, as specified in these rules, the exception may be terminated if the provider does not complete the training by the date required by the department.

(j) If the Individual or the Individual’s legal representative, as applicable, initiated the request, a notice of planned action will be sent to the requestor which includes contested hearing rights under ORS chapter 183 when an exception request is denied, reduced, partially approved or terminated. Hearing requests must be submitted within 30 days.

(k) If the provider initiated the request, the Department will provide a written notice that includes the following elements:

(A) The date;

(B) The name of the provider;

(D) Reason(s) for the Department’s decision.

(l) The provider may request an administrative review within 14 days of receiving notice of denial, termination, or partial approval by sending a written notice to the Individual’s case manager.

(m) A provider, Individual, or Individual’s legal representative may submit a request to increase an exception. The request must include additional information demonstrating the need for the exception and a new CA/PS assessment has been conducted by the case manager that documents the need for the change to an exception. Requests for an increase will be treated as a new exception request.

(n) Exceptions expire at the end of the Individual’s service plan authorization or at an earlier date as determined by the Department.

(o) Adult Foster Home providers will be given at least 10 business days written notice prior to the expiration or termination of an exception. Providers that do not receive this notice will continue to be paid the exception until a 10-day written notice is issued.

(p) The requestor seeking a renewal must submit the renewal request on the required forms and payroll documentation showing additional caregivers were provided as funded by the exception, prior to the exception expiration date.

(q) Failure to comply with these timelines will result in an exception expiring. If an exception expires, a new request must be completed and providers will not be paid for the period between when the exception expired and when a new exception, if approved, begins.

(r) The Department may deny an exception request, regardless of who has initiated it, when in the last three years the provider has a history of not appropriately providing sufficient staffing to meet an exception or not providing requested documentation to the Department on multiple occasions to support an exception.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 12-2026, amend filed 06/18/2026, effective 06/24/2026
APD 23-2025, temporary amend filed 12/29/2025, effective 01/01/2026 through 06/29/2026
APD 9-2018, amend filed 03/28/2018, effective 03/29/2018
APD 20-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 03/29/2018
APD 33-2014, f. & cert. ef. 9-2-14
SPD 7-2008, f. 5-29-08, cert. ef. 6-1-08
SDSD 10-2001, f. 12-27-01, cert. ef. 1-1-02
SDSD 4-1998, f. 6-25-98, cert. ef. 7-1-98
SDSD 3-1998, f. 2-27-98, cert. ef. 3-1-98

Or. Admin. R. 411-027-0075 Special Payment Contracts

(1) The Department may authorize three different types of special payment contract arrangements.

(a) Supplemented Program Contract. A supplemented program contract pays a rate in excess of the rate schedule to providers in return for additional services delivered to target populations.

(b) Consistent Revenue Contract. A consistent revenue contract allows a payment rate based on average facility case mix. The contracted rate is in the range allowed by the rate schedule and is based on individual needs.

(c) Specific Needs Setting Contract. A specific needs setting contract pays a rate in excess of the rate schedule to providers who care for a group of individuals all of whose service needs exceed the service needs encompassed in the base payment and all add-ons.

(2) SUPPLEMENTED PROGRAM CONTRACTS.

(a) The Department may authorize a service payment rate not included in the rate schedule for Residential Care Facilities, Assisted Living Facilities and Adult Foster Homes providing additional services to a targeted population, pursuant to a written contract with the Department. To qualify, the facility must demonstrate to the Department that:

(A) There is a documented need for additional services to the target population.

(B) The administrative and care staff have sufficient program knowledge and skills to achieve program goals and provide the additional services.

(D) There is a comprehensive ongoing staff training program targeted to the population's needs.

(E) The facility has made any modifications necessary to provide the additional services.

(F) The Medicaid individuals served in the facility demonstrate increasing need for assistance with activities of daily living and cognitive abilities due to Alzheimer's Disease or other dementia.

(i) "Alzheimer's Disease" means a chronic, progressive disease of unknown cause that attacks brain cells or tissues.

(ii) "Dementia" means a clinical syndrome characterized by a decline in mental function of long duration in an alert individual. Symptoms of dementia include memory loss and the loss or diminution of other cognitive abilities such as learning ability, judgment, comprehension, attention and orientation to time and place and to oneself.

(G) The facility has provided the additional service for at least six months prior to the date on which the supplemented program contract takes effect. Additionally, the Department may approve supplemented program contracts to be effective prior to the date on which the facility has provided the additional service for six months based on:

(i) The Department experience of provider ability to provide the additional service;

(ii) The recommendation of the Department and AAA local office staff; or

(iii) Unmet community need for the additional services to be offered under the contract.

(H) The facility may identify, at the time of application for the supplemented program contract, the additional costs the facility incurs to deliver the additional services. The facility shall include, at a minimum, the additional staffing and training costs it incurs as a result of delivery of the additional services.

(b) The Department must evaluate the information submitted by the facility, and may authorize a contracted payment amount.

(c) A contract may be renewed at the appropriate payment rate on an annual basis for a facility that continues to meet the criteria stated in section (1)(a) of this rule.

(A) At the time of the request for renewal, or at any other time the Department requests, the facility shall provide the Department with information on actual costs incurred in delivery of the additional services. Information provided by the facility shall be in the format prescribed by the Department and shall, at a minimum, include the costs of staffing the additional services and of training for direct care staff.

(B) The Department must evaluate the information submitted by the facility, and may re-authorize a contracted payment amount.

(d) The supplemented program contract rate may be increased only if the Legislative Assembly authorizes the Department to do so and appropriates the funds needed to pay the increase.

(3) CONSISTENT REVENUE CONTRACTS. The Department may authorize a service payment rate not included in the rate schedule for Residential Care Facilities, Assisted Living Facilities and Adult Foster Homes that request a consistent revenue rate pursuant to a written contract with the Department.

(a) In a consistent revenue contract, the Department establishes a uniform service payment rate for all individuals. The uniform service payment rate is equivalent to the average service payment rate the Department pays under the rate schedule. In no case shall the consistent revenue contract payment exceed the average amount the Department pays to the facility under the rate schedule.

(b) A provider must request a consistent revenue contract in writing. The request must include the suggested payment amount and justify the calculation of that amount by attaching copies of the most recent three full calendar months Provider Individual Summary Form.

(A) If a request for a consistent revenue contract and the required justification are received by the Department on or before the 15th of the month, the consistent revenue contract payment amount is effective for payment for services rendered on or after the first day of the month immediately following receipt of the request.

(B) If a request for a consistent revenue contract and the required justification are received by the Department after the 15th of the month, the consistent revenue contract payment amount is effective for payment for services rendered on or after the first day of the second month following receipt of the request.

(c) A consistent revenue contract may be terminated by the facility by providing 30 days written notice to the Department. If a consistent revenue contract is terminated, service payments for individuals are made in accordance with the rate schedule.

(d) The Department may terminate a consistent revenue contract by providing 30 days written notice to the facility. If a consistent revenue contract is terminated, service payments for individuals are made in accordance with the rate schedule.

(e) Payment rates under consistent revenue contracts may be adjusted due to changes in facility case mix.

(A) The Department must review facility case mix annually at contract renewal. The determination of average facility case mix is based on the average service payment level to which the Department has assigned individuals over the three calendar months that precede the determination.

(B) Notwithstanding section (3)(e)(A) of this rule, in the first year during which a facility is paid under a consistent revenue contract, the facility may request that the consistent revenue contract payment be recalculated after six months. The request must include the recommended payment amount and justification of that amount.

(f) Service payment rate amounts paid under a consistent revenue contract are increased as a result of legislatively approved increases at the same time and in the same way as are other facilities of the same licensure.

(4) SPECIFIC NEEDS SETTING CONTRACTS.

(a) Specific needs settings are found in Adult Foster Homes, Residential Care Facilities and Assisted Living Facilities. These settings provide community-based care services for individuals whose needs are not met by the rate schedule.

(b) Determination of facility eligibility for a specific needs setting contract is at the discretion of the Department. In making its determination, the Department shall consider:

(A) The needs of the individuals being provided care;

(B) The availability of other community long-term care options to meet individual needs; and

(C) The proportion of facility individuals demonstrating the specific needs setting care need and other factors as the Department may determine.

(c) The provider shall submit information to the Department in the form and at the time requested in order to determine the Medicaid rate to be paid.

(d) The total rate for specific needs setting contracts shall be approved by the Department. The approved rate is a single rate paid for all Title XIX individuals with the specific needs setting care need that live in the eligible facility.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 33-2014, f. & cert. ef. 9-2-14
SPD 7-2008, f. 5-29-08, cert. ef. 6-1-08
SDSD 10-2001, f. 12-27-01, cert. ef. 1-1-02

Or. Admin. R. 411-027-0125 Distressed Provider Relief Fund

The Department may authorize a payment to a Medicaid Assisted Living Facility, Residential Care Facility or Memory Care (Endorsed Units Only) who meet the criteria described in OAR chapter 411, division 029. The Department will prioritize payments based on available funding and maintains sole authority to determine which providers will receive funding.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 2-2023, adopt filed 02/08/2023, effective 02/10/2023
APD 41-2022, temporary adopt filed 08/19/2022, effective 08/19/2022 through 02/14/2023

Or. Admin. R. 411-027-0150 Repayment of Premium Deposits for Workers' Compensation

Those providers on whose behalf the Department made a Workers' Compensation premium deposit in accordance with OAR 411-027-0010 (suspended 2-8-91 and repealed 5-1-91) shall repay the deposit amount to the Department at such time that the need for the deposit no longer exists. The Department shall consider the need for the deposit no longer exists when certain conditions occur. Such conditions include, but are not limited to:

(1) The provider sells, transfers, or otherwise goes out of business;

(2) The provider enters into bankruptcy;

(3) The provider's Workers' Compensation insurer no longer requires the deposit; or

(4) The Department owes monies to a nursing facility at the time of each annual settlement. Such monies shall be applied against the premium deposit amount until such time the total deposit is recovered.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 33-2014, f. & cert. ef. 9-2-14
SPD 7-2008, f. 5-29-08, cert. ef. 6-1-08
SDSD 10-2001, f. 12-27-01, cert. ef. 1-1-02, Renumbered from 411-027-0015
SSD 9-1991, f. & cert. ef. 5-1-91
SSD 5-1991(Temp), f. & cert. ef. 2-8-91

Or. Admin. R. 411-027-0160 Enhanced Wage Add-on Program

(1) For the purposes of this rule, Home and Community Based Services (HCBS) providers refer to Assisted Living Facilities, Residential Care Facilities, Memory Care (Endorsed Units Only) and In-Home Agencies. Effective January 1, 2023, this rule includes Adult Day Services providing full day services.

(2) ESTABLISHMENT. The Department establishes the Enhanced Wage Add-on Program (Program). The Program is designed to support Home and Community Based Services (HCBS) providers with retention of caregivers by paying a starting wage of $15 per hour for all caregivers, with an increase to $15.50 per hour by the second year of the 2021-2023 biennium (July 1, 2022).

(3) The Department will provide additional compensation to HCBS providers who meet the criteria contained in paragraph (4). Such compensation shall be an add-on of 10% of the Medicaid rate, as authorized in OAR 411-027-0170, during the effective dates of the Program. A HCBS provider may be eligible to apply between October 1, 2021 and June 30, 2023.

(4) CRITERIA. Criteria must be met in order for a HCBS provider to be eligible for the Enhanced Wage Add-on Program. The HCBS provider shall submit documentation supporting that it provides a starting wage of $15 per hour or more for all caregivers, escalating up to $15.50 per hour or more by the second year of the 2021-2023 biennium (July 1, 2022). Sufficient documentation shall be submitted to the Department with the required form referenced in paragraph (6) and shall include at least one of the following:

(a) A copy of a collective bargaining agreement or addendums with such provisions;

(b) Amended policies that includes the wages for direct caregivers during the period of the Program;

(d) Payroll records demonstrating rates of pay for caregivers equal to or higher than $15.50 per hour; or

(e) Written communication to staff with wage criteria that includes reference to the Legislature establishing a wage add-on to Medicaid rates for the purpose of supporting caregiver wages in partnership with the Oregon Department of Human Services, the Oregon Health Care Association, SEIU Local 503, and other senior care advocates.

(5) PAYMENT. The Department will provide the Enhanced Wage Add-on equal to 10% of the Medicaid rate, as authorized in OAR 411-027-0170, between October 1, 2021 and June 30, 2023, for providers who meet the criteria contained in paragraph (4). The documentation of the criteria being met shall be submitted with the form by the 15th of the month for which the provider is requesting to be approved. The wage add-on rate will not be effective until the Department provides written approval to the provider.

(6) FORM. HCBS providers shall submit a claim for the Enhanced Wage Add-on Program on the form created by the Department. The documentation of the criteria being met shall be submitted with the form by the 15th of the month for which the provider is requesting to be approved.

(7) APPLICABILITY. The Department will only provide the Enhanced Wage Add-on rate for services provided during the period of October 1, 2021 to June 30, 2023, in which the provider was in compliance with the criteria contained in paragraph (4).

(8) TIMELINESS. Forms for the Enhanced Wage Add-on rate may be submitted during the effective dates of the Program. The documentation of the criteria being met shall be submitted with the form by the 15th of the month for which the provider is requesting to be approved.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 9-2023, amend filed 06/28/2023, effective 06/29/2023
APD 1-2023, temporary amend filed 01/27/2023, effective 01/27/2023 through 07/25/2023
APD 5-2022, adopt filed 03/01/2022, effective 03/03/2022
APD 31-2021, temporary adopt filed 09/03/2021, effective 09/07/2021 through 03/05/2022

Or. Admin. R. 411-027-0165 Wage Transparency

(1) This rule is for the following providers: Assisted Living Facilities, Residential Care Facilities, Memory Care (Endorsed Units Only), Adult Foster Homes and In-Home Agencies that hold Medicaid contracts or enrolled as a Medicaid provider with the State of Oregon and serve a material number of Medicaid individuals. For this rule, a material number is defined as a provider’s Medicaid census of at least 20 percent at each reporting timeline.

(2) Establishment. Per the 2025 Legislative Session, the Department is directed to collect data from the Medicaid providers referenced in Section (1) of this rule. The specific information to be collected is the average hourly base pay of direct caregivers as of June 30, 2025, and August 30, 2026.

(3) Timeliness. This is a Legislative requirement. As a requirement of all Medicaid Provider Enrollment Agreements (PEA) with the Department, all providers referenced in Section (1) of this rule must submit their responses in a format created by the Department or the Department may take action limiting the provider’s ability to serve Medicaid eligible individuals. Data for the average hourly base pay of direct caregivers as of June 30, 2025, must be submitted no later than November 30, 2025. Data for the average hourly base pay of direct caregivers as of August 30, 2026, must be submitted no later than November 30, 2026.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 3-2026, adopt filed 03/23/2026, effective 03/25/2026
APD 13-2025, temporary adopt filed 09/29/2025, effective 10/01/2025 through 03/29/2026

Or. Admin. R. 411-027-0170 Rate Schedule for Home and Community-Based Services

(1) Rates below are in effect starting January 1, 2026.

(2) Monthly Rates:

(a) Residential Care Facilities:

(A) Tier 1 - $2,863.00.

(B) Tier 2 - $3,421.00.

(D) Tier 4 - $4,537.00.

(E) Tier 5 - $5,172.00

(F) Hourly Exception Rate - $20.18 per hour.

(b) Adult Foster Homes: Rates shall be paid in accordance with the terms of collective bargaining agreements negotiated between the Service Employees International Union and the State of Oregon.

(A) Level 1 - $1,980.00.

(B) Level 2 - $2,454.00.

(D) Level 4 - $3,866.00.

(E) Level 5 - $4,649.00.

(d) Memory Care Facilities (Endorsed Units Only) - $6,346.00 per month.

(e) Contracted In-Home Care Agencies Rate - $39.40 per hour.

(f) Home Delivered Meals - $12.25 per meal.

(g) Adult Day Services - $115.24

(3) Effective July 1, 2026, to June 30, 2027, the monthly rates are as follows:

(a) Residential Care Facilities:

(A) Tier 1 - $3,482.00.

(B) Tier 2 - $4,160.00.

(D) Tier 4 - $5,517.00.

(E) Tier 5 - $6,290.00

(F) Hourly Exception Rate - $21.50 per hour.

(b) Adult Foster Homes: Rates shall be paid in accordance with the terms of collective bargaining agreements negotiated between the Service Employees International Union and the State of Oregon.

(A) Level 1 - $2,040.00.

(B) Level 2 - $2,528.00.

(D) Level 4 - $3,982.00.

(E) Level 5 - $4,789.00.

(d) Memory Care Facilities (Endorsed Units Only) - $6,480.00 per month.

(e) Contracted In-Home Care Agencies Rate - $40.40 per hour.

(f) Home Delivered Meals - $12.25 per meal.

(g) Adult Day Services - $122.16.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 12-2026, amend filed 06/18/2026, effective 06/24/2026
APD 23-2025, temporary amend filed 12/29/2025, effective 01/01/2026 through 06/29/2026
APD 18-2025, amend filed 12/16/2025, effective 12/19/2025
APD 6-2025, temporary amend filed 06/26/2025, effective 07/01/2025 through 12/27/2025
APD 21-2023, amend filed 12/12/2023, effective 12/20/2023
APD 11-2023, temporary amend filed 06/29/2023, effective 07/01/2023 through 12/27/2023
APD 43-2022, amend filed 08/19/2022, effective 08/29/2022
APD 12-2022, temporary amend filed 03/10/2022, effective 03/28/2022 through 09/02/2022
APD 8-2022, temporary amend filed 03/02/2022, effective 03/07/2022 through 09/02/2022
APD 54-2021, amend filed 12/09/2021, effective 12/13/2021
APD 28-2021, temporary amend filed 07/19/2021, effective 07/21/2021 through 01/16/2022
APD 41-2020, amend filed 10/09/2020, effective 10/15/2020
APD 27-2020, temporary amend filed 06/25/2020, effective 07/01/2020 through 10/30/2020
APD 18-2020, temporary amend filed 05/18/2020, effective 05/18/2020 through 10/30/2020
APD 16-2020, temporary amend filed 05/04/2020, effective 05/04/2020 through 10/30/2020
APD 9-2018, amend filed 03/28/2018, effective 03/29/2018
APD 20-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 03/29/2018
APD 41-2016, f. 12-2-16, cert. ef. 12-28-16
APD 13-2016(Temp), f. 6-27-16, cert. ef. 7-1-16 thru 12-27-16
APD 3-2016, f. 3-4-16, cert. ef. 3-18-16
APD 18-2015(Temp), f. & cert. ef. 9-21-15 thru 3-18-16

Division 28 CASE MANAGEMENT SERVICES FOR OLDER ADULTS AND ADULTS WITH DISABILITIES

Or. Admin. R. 411-028-0000 Purpose

(1) The rules in OAR chapter 411, division 028 ensure case management services support the independence, empowerment, dignity, and human potential of older adult individuals and adult individuals with disabilities with the purpose of helping the individuals reside in their own home or in a community-based setting.

(2) Case management services are a component of an individual's comprehensive, person-centered plan for services.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 46-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 15-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

Or. Admin. R. 411-028-0010 Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 028:

(1) "Adult" means any person at least 18 years of age.

(2) "Adult Protective Services" mean the services provided in response to the need for protection from abuse described in OAR chapter 411, division 020, OAR chapter 407, division 045, and chapter 943, division 045.

(3) "Case Management" means the functions described in OAR 411-028-0020 performed by a case manager or higher level management staff.

(4) "Case Manager" means a Department employee or an employee of the Department's designee that meets the minimum qualifications in OAR 411-028-0040 who is responsible for service eligibility, assessment of need, offering service choices to eligible individuals, service planning, service authorization and implementation, and evaluation of the effectiveness of Medicaid home and community-based services.

(5) "Collateral Contact" means contact by a case manager with others who may provide information regarding an individual's health, safety, functional needs, social needs, or effectiveness of the individual's plan for services. Collateral contact may include family members, service providers, medical providers, neighbors, pharmacy staff, friends, or other professionals involved in the service coordination of an individual receiving Medicaid home and community-based services.

(6) "Department" means the Department of Human Services.

(7) "Designee" means an organization that the Department contracts with or has an interagency agreement with for the purposes of providing case management services.

(8) "Disability" means a physical, cognitive, or emotional impairment which, for an individual, constitutes or results in a functional limitation in one or more of the activities of daily living defined in OAR 411-015-0006.

(9) "Individual" means an older adult or an adult with a disability applying for or determined eligible for Medicaid home and community-based services.

(10) "Medicaid Home and Community-Based Services" mean the services for older adults and adults with disabilities approved for Oregon by the Centers for Medicare and Medicaid Services.

(11) "Older Adult" means any person at least 65 years of age.

(12) "OSIPM" means Oregon Supplemental Income Program-Medical as defined in OAR 461-101-0010. OSIPM is Oregon Medicaid insurance coverage for individuals who meet eligibility criteria as described in OAR chapter 461.

(13) "Representative" is a person either appointed by an individual to participate in service planning on the individual's behalf or a person with longstanding involvement in assuring the individual's health, safety, and welfare.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 35-2014, f. & cert. ef. 10-1-14
APD 9-2014(Temp), f. 4-17-14, cert. ef. 4-21-14 thru 10-18-14
SPD 46-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 15-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

Or. Admin. R. 411-028-0020 Scope of Case Management Services

(1) DIRECT CASE MANAGEMENT SERVICES. Direct case management services are provided by a case manager or higher level staff, who communicates directly with an individual or the individual's representative. Direct case management services may occur by phone call, face-to-face contact, or email. Direct case management services do not include contact with collateral contacts unless the collateral contact is the individual's authorized representative. Direct case management services include:

(a) An assessment as described in OAR 411-015-0008.

(b) Service Plan development and review as described in OAR 411-015-0008.

(d) Risk assessment and monitoring:

(A) Identifying and documenting risks;

(B) Working with an individual to eliminate or reduce risks;

(D) Monitoring risks over time; and

(E) Making adjustments to an individual's Service Plan as needed.

(e) Diversion activities. This means assisting an individual with finding alternatives to nursing facility admission.

(f) Other program coordination. This means helping an individual navigate or coordinate with other social, health, and assistance programs.

(g) Crisis response and intervention. This means assisting an individual with problem resolution.

(h) Service provision issues. This means assisting an individual with problem solving to resolve issues that occur with providers, services, or hours that don't meet the individual's needs.

(2) INDIRECT CASE MANAGEMENT SERVICES. Indirect case management services are services provided by a case manager or higher level staff, in which direct contact with an individual is not occurring. Indirect case management services include:

(a) Monitoring Service Plan implementation. Reviewing implementation of an individual's Service Plan by reviewing and comparing authorized and billed services to ensure that adequate services are being provided.

(b) Service options choice counseling. This means assisting an individual's caregiver, family member, or other support person with understanding all available Medicaid home and community-based service options.

(c) Risk monitoring. Working with a collateral contact to review an individual's risks, eliminate or reduce risks, and develop and implement a Risk Mitigation Plan. Adjustments to an individual's Service Plan based on risk monitoring activities are classified as direct case management.

(d) Diversion activities. This means finding alternatives to nursing facility admission. Diversion activities do not include transition activities to help an individual move from a nursing facility.

(e) Adult protective services referral including collateral contact.

(f) Other program coordination. This means helping collateral contacts navigate or coordinate with other social, health, and assistance programs.

(g) Service provision issues. This means assisting with problem solving issues that occur with providers, services, or hours that do not meet an individual's needs.

(h) Other case management activities not included in any criteria in this section of the rule.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 35-2014, f. & cert. ef. 10-1-14
APD 9-2014(Temp), f. 4-17-14, cert. ef. 4-21-14 thru 10-18-14
SPD 46-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 15-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

Or. Admin. R. 411-028-0030 Eligibility for Case Management Services

To be eligible for case management services a person must:

(1) Be 18 years of age or older;

(2) Be eligible for OSIP-M; and

(3) Meet the functional impairment level within the service priority levels currently served by the Department as outlined in OAR 411-015-0010 and 411-015-0015.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
Reverted to SPD 46-2013, f. 12-13-13, cert. ef. 12-15-13
APD 9-2014(Temp), f. 4-17-14, cert. ef. 4-21-14 thru 10-18-14
SPD 46-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 15-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

Or. Admin. R. 411-028-0040 Qualified Case Manager

Staff working for the Department or the Department's designee must meet the following requirements to provide case management services:

(1) A bachelor’s degree in a behavioral science, social science, or a closely related field; or

(2) A bachelor’s degree in any field and one year of human services related experience that may include providing assistance to people and groups with issues such as economical disadvantages, employment barriers and shortages, abuse and neglect, substance abuse, aging, disabilities, prevention, health, cultural competencies, or inadequate housing; or

(3) An associate’s degree in a behavioral science, social science, or a closely related field and two years of human services related experience that may include providing assistance to people and groups with issues such as economical disadvantages, employment barriers and shortages, abuse and neglect, substance abuse, aging, disabilities, prevention, health, cultural competencies, or inadequate housing; or

(4) Three years of human services related experience that may include providing assistance to people and groups with issues such as economical disadvantages, employment barriers and shortages, abuse and neglect, substance abuse, aging, disabilities, prevention, health, cultural competencies, or inadequate housing.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 46-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 15-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

Or. Admin. R. 411-028-0050 Frequency of Case Management Services

A case manager who meets the requirements in OAR 411-028-0040 must provide the following case management services to an eligible individual receiving Medicaid home and community-based services:

(1) A direct case management service as described in OAR 411-028-0020 must be provided to an eligible individual no less than once in each calendar quarter.

(2) An indirect case management service must be provided in every calendar month a direct case management service was not provided.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 46-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 15-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

Division 29 COMMUNITY-BASED CARE DISTRESSED PROVIDER RELIEF FUND

Or. Admin. R. 411-029-0000 Purpose

The purpose of this division is to establish requirements for the application, approval, distribution, and oversight of the Community-Based Care (CBC) Distressed Provider Relief Fund (Fund). This Fund provides a financial assistance grant to CBCs who are experiencing financial hardships and contemplating closure.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 51-2022, adopt filed 11/04/2022, effective 11/07/2022
APD 42-2022, temporary adopt filed 08/19/2022, effective 08/19/2022 through 11/10/2022
APD 21-2022, temporary adopt filed 05/09/2022, effective 05/15/2022 through 11/10/2022

Or. Admin. R. 411-029-0005 Definitions

(1) “Community-Based Care (CBC)” means:

(a) An Assisted Living Facility licensed under rules contained in Oregon Administrative Rule chapter 411, division 054; or

(b) A Residential Care Facility licensed under rules contained in Oregon Administrative Rule chapter 411, division 054; or

(c) A Memory Care Facility (Endorsed Units only) licensed under rules contained in Oregon Administrative Rule chapter 411, division 057.

(2) "Department" means the Oregon Department of Human Services (ODHS).

(3) “Essential Facility” means a facility that serves:

(a) Predominantly rural or frontier communities as designated by the Oregon Office of Rural Health; or

(b) Serves low-income communities; or

(4) “Financial Hardship” means a facility needs substantially all current and anticipated income and liquid assets to meet current and anticipated ordinary and necessary facility expenses. This means the facility is experiencing or facing insolvency or significant cash flow problems and may be at risk of closure in the next six months.

(5) “Medicaid Occupancy” means the number of Medicaid individuals divided by the number of total individuals residing in the facility.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 51-2022, adopt filed 11/04/2022, effective 11/07/2022
APD 42-2022, temporary adopt filed 08/19/2022, effective 08/19/2022 through 11/10/2022
APD 21-2022, temporary adopt filed 05/09/2022, effective 05/15/2022 through 11/10/2022

Or. Admin. R. 411-029-0010 Community-Based Care Distressed Provider Relief Fund

(1) ESTABLISHMENT. The Oregon Department of Human Services (Department) establishes the CBC Distressed Provider Relief Fund. The Fund will prioritize financial assistance grants to CBC facilities who meet the criteria described in OAR 411-029-0020.

(2) TIMELINESS. Initial applications for the CBC Distressed Provider Relief Fund must be submitted to the Department during the open application submission timeframe as announced by the Department. The Department may announce subsequent application periods through policy guidance or provider alert if funding remains after the initial application.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 51-2022, adopt filed 11/04/2022, effective 11/07/2022
APD 42-2022, temporary adopt filed 08/19/2022, effective 08/19/2022 through 11/10/2022
APD 21-2022, temporary adopt filed 05/09/2022, effective 05/15/2022 through 11/10/2022

Or. Admin. R. 411-029-0020 Criteria

The Department will accept completed applications from CBCs that are able to confirm a Financial Hardship and whom have a valid Medicaid provider number. Prioritization will be given to facilities as described in OAR 411-029-0025.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 51-2022, adopt filed 11/04/2022, effective 11/07/2022
APD 42-2022, temporary adopt filed 08/19/2022, effective 08/19/2022 through 11/10/2022
APD 21-2022, temporary adopt filed 05/09/2022, effective 05/15/2022 through 11/10/2022

Or. Admin. R. 411-029-0025 Prioritization of Applications

The Department will prioritize funding based on following criteria:

(1) Facilities who meet the definition of Essential Facility;

(2) Facilities with high Medicaid Occupancy on a date specified by the Department;

(3) Facilities who are actively in the process of closing or are at a significant risk of closing their facility due to a Financial Hardship;

(4) Facilities that can demonstrate the potential for viability with a cash assistance grant; and

(5) Facilities with demonstrated regulatory record of ensuring patient safety.

(6) The Department retains the right to approve or deny any application within available funding based on the Department’s determination of the most at risk facilities.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 51-2022, adopt filed 11/04/2022, effective 11/07/2022
APD 42-2022, temporary adopt filed 08/19/2022, effective 08/19/2022 through 11/10/2022
APD 21-2022, temporary adopt filed 05/09/2022, effective 05/15/2022 through 11/10/2022

Or. Admin. R. 411-029-0030 Facility Statement of Need

Sufficient information and financial records shall be submitted to the Department, in addition to the application form referenced in OAR 411-029-0040, and shall include each of the following:

(1) A written Facility Statement of Need that includes each of the following:

(a) Written statement of how a potential closure of the facility would create a lack of access to care, particularly for low income and Medicaid beneficiaries in the area;

(b) Written statement of steps taken to address current financial hardships, such as accessing reserve funds, being approved for the Enhanced Wage Add-on Program (OAR 411-027-0160), employed strategies to increase facility census, and recruiting and retaining permanent staff;

(d) Written statement of an amount that the facility is requesting to assist the facility out of financial hardship. This amount may not reflect the approved amount by the Department.

(2) A copy of the following records from the facility and the parent corporation, if applicable:

(a) Federal income tax return for the previous two years;

(b) A current Working Trial Balance;

(d) A current Cash Flow Statement.

(3) Any other information or records that the Department may request to support a Facility’s Statement of Need.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 51-2022, adopt filed 11/04/2022, effective 11/07/2022
APD 42-2022, temporary adopt filed 08/19/2022, effective 08/19/2022 through 11/10/2022
APD 21-2022, temporary adopt filed 05/09/2022, effective 05/15/2022 through 11/10/2022

Or. Admin. R. 411-029-0040 Application

(1) Interested Community-Based Care Facilities must submit a completed application form designated by the Department, in addition to the information and records supporting the Facility’s Statement of Need, described in OAR 411-029-0030.

(2) These documents can be combined in the application form or submitted as separate documents, at the time of submission.

(3) Complete applications will be accepted by the due date set by the Department.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 51-2022, adopt filed 11/04/2022, effective 11/07/2022
APD 42-2022, temporary adopt filed 08/19/2022, effective 08/19/2022 through 11/10/2022
APD 21-2022, temporary adopt filed 05/09/2022, effective 05/15/2022 through 11/10/2022

Or. Admin. R. 411-029-0050 Approval and Payment

(1) The Department will notify all facilities, in writing, whether approved or not approved.

(2) Once approved, the Department will process the payment within ten (10) business days of written approval.

(3) The Department will only authorize funds to the extent of the appropriation authorized by the Oregon legislature.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 51-2022, adopt filed 11/04/2022, effective 11/07/2022
APD 42-2022, temporary adopt filed 08/19/2022, effective 08/19/2022 through 11/10/2022
APD 21-2022, temporary adopt filed 05/09/2022, effective 05/15/2022 through 11/10/2022

Or. Admin. R. 411-029-0060 Oversight

All payments authorized for this Program are subject to audit at the discretion of the Department.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 51-2022, adopt filed 11/04/2022, effective 11/07/2022
APD 42-2022, temporary adopt filed 08/19/2022, effective 08/19/2022 through 11/10/2022
APD 21-2022, temporary adopt filed 05/09/2022, effective 05/15/2022 through 11/10/2022

Division 30 IN-HOME SERVICES

Or. Admin. R. 411-030-0002 Purpose and Scope

(1) The rules in OAR chapter 411, division 30 ensure that in-home services maximize independence, empowerment, dignity, and human potential through the provision of flexible, efficient, and suitable services. In-home services fill the role of complementing and supplementing an individual's own personal abilities to continue to live in his or her own home or the home of a relative.

(2) Medicaid in-home services are provided through the Consumer-Employed Provider Program, Spousal Pay Program, Independent Choices Program, and other approved service providers.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 43-2013, f. 10-31-13, cert. ef. 11-1-13
SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13
SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09
SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04
SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93

Or. Admin. R. 411-030-0020 Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 030:

(1) “Activities of Daily Living (ADL)” mean those personal, functional activities required by an individual for continued well-being, which are essential for health and safety. Activities include eating, dressing, and grooming, bathing and personal hygiene, mobility, elimination, and cognition as defined in OAR 411-015-0006.

(2) “Adequately” means sufficient quantity to meet the minimum need as determined by the department.

(3) “Aging and People with Disabilities (APD)" refers to the program within the Oregon Department of Human Services (ODHS) primarily responsible for serving seniors and people with disabilities as defined in OAR chapter 411, division 015.

(4) "Architectural Modifications" means any service leading to the alteration of the structure of a dwelling to meet a specific service need of an eligible individual.

(5) "Area Agency on Aging (AAA)" means the Department designated agency charged with the responsibility to provide a comprehensive and coordinated system of services to individuals in a planning and service area. The term Area Agency on Aging is inclusive of both Type A and Type B Area Agencies on Aging as defined in ORS 410.040 and described in ORS 410.210 to 410.300.

(6) "Assessment" or "Reassessment" means an assessment as defined in OAR 411-015-0008.

(7) "Assistive Devices" means any category of durable medical equipment, mechanical apparatus, electrical appliance, or instrument of technology used to assist and enhance an individual's independence in performing any activity of daily living. Assistive devices include the use of service animals, general household items, or furniture to assist the individual.

(8) "Benefit Plan" means the specific authorization for in-home services authorized under the Consumer Employer Program, Independent Choices Program (ICP), or spousal pay services that is part of the Client Assessment and Planning System and includes set start and end dates for in-home individuals. The Benefit Plan authorization is developed with the individual.

(9) "Business Days" means Monday through Friday and excludes Saturdays, Sundays, and state or federal holidays.

(10) "Case Manager (CM)" means an employee of the Department or Area Agency on Aging who assesses the service needs of an individual applying for services, determines eligibility, and offers service choices to the eligible individual. The case manager authorizes and implements an individual's service plan and monitors the services delivered as described in OAR chapter 411, division 028. For the purposes of this rule, CM may also include Diversion/Transition Coordinators.

(11) "Central Office (CO)" means the unit within the Department responsible for program and policy development and oversight.

(12) "Client Assessment and Planning System (CA/PS)":

(a) Is a single data system used for:

(A) Completing a comprehensive and holistic assessment;

(B) Surveying an individual's physical, mental, and social functioning; and

(b) The CA/PS documents the level of need and calculates an individual's service priority level in accordance with the rules in OAR chapter 411, division 015, calculates the allowed service hours, and accommodates individual participation in service planning.

(13) "Consumer-Employed Provider Program" refers to the program described in OAR chapter 411, division 031 wherein a provider is directly employed by an individual or their representative to provide hourly in-home services.

(14) "Consumer-Employer" means an individual eligible for in-home services receiving services through the Consumer-Employer Provider Program.

(15) "Contingency Fund" means a monetary amount that continues month to month, if approved by a case manager, that is set aside in the Independent Choices Program service budget to purchase identified items that substitute for personal assistance.

(16) "Contracted In-Home Care Agency" means an incorporated entity or equivalent, licensed in accordance with OAR chapter 333, division 536 that provides hourly contracted in-home services to individuals receiving services through the Department or Area Agency on Aging.

(17) "Cost Effective" means being responsible and accountable with Department resources. This is accomplished by offering less costly alternatives when providing choices that adequately meet an individual’s service needs. Those choices consist of all available services under the Medicaid home and community-based service options, the utilization of assistive devices, natural supports, architectural modifications, and alternative service resources (defined in OAR 411-015-0005). Less costly alternatives may include resources not paid for by the Department.

(18) "Debilitating Medical Condition" means the individual’s condition is severe, persistent, and interferes with the individual's ability to function and participate in most activities of daily living.

(19) "Department" means the Oregon Department of Human Services (ODHS), APD.

(20) "Discretionary Fund" means a monetary amount set aside in the Independent Choices Program service budget to purchase items not otherwise delineated in the monthly service budget or agreed to be savings for items not traditionally covered under Medicaid home and community-based services. Discretionary funds are expended as described in OAR 411-030-0100.

(21) "Disenrollment" means either voluntary or involuntary termination of a participant from the Independent Choices Program.

(22) "Employee Provider" means a worker who provides services to, and is a paid provider for, a participant in the Independent Choices Program.

(23) “Electronic Visit Verification” means a service which requires hourly providers to clock-in at the beginning of their shift and clock-out at the end of their shift, so all hours worked are captured electronically and paid accordingly.

(24) "Employment Relationship" means the relationship of employee and employer involving an employee provider and a participant.

(25) "Exception" means a variance to APD service limits, granted or denied at DHS’ discretion, based on an individual’s documented service needs warranting a deviation from the typical services needed by the service population. This definition of exception applies to the following areas of exception which are granted or denied at the Department’s full discretion:

(a) Maximum hours exceptions as described in OAR 411-027-0050 and OAR 411-030-0071;

(b) Shift services hours over 16 hours per day as described in OAR 411-027-0050 and OAR 411-030-0068;

(26) "FICA" is the acronym for the Social Security payroll taxes collected under authority of the Federal Insurance Contributions Act.

(27) "Financial Accountability" refers to guidance and oversight which act as fiscal safeguards to identify budget problems on a timely basis and allow corrective action to be taken to protect the health and welfare of individuals.

(28) "FUTA" is the acronym for Federal Unemployment Tax Assessment which is a United States payroll (or employment) tax imposed by the federal government on both employees and employers.

(29) "Homecare Worker (HCW)" means a provider, as described in OAR 411-031-0040, directly employed by an individual to provide hourly in-home services to the eligible individual.

(a) The term homecare worker includes:

(A) A consumer-employed provider in the Spousal Pay and Oregon Project Independence Programs;

(B) A consumer-employed provider that provides state plan personal care services to individuals; and

(b) The term homecare worker does not include an Independent Choices Program provider, or a personal support worker enrolled through Developmental Disability Services or the Oregon Health Authority.

(30) "Hourly Services" mean the in-home services, including activities of daily living and instrumental activities of daily living, that are provided at regularly scheduled times.

(31) "Household" means a group of individuals that live together within the same dwelling. For homeless individuals, the household consists of the individuals who consider themselves living together.

(32) "ICP Participation Agreement" means the form provided by the Department the individual signs indicating that they understand their roles and responsibilities in the ICP program.

(33) "Independent Choices Program (ICP)" means a self-directed in-home services program in which a participant receives a cash benefit to purchase goods and services identified in the participant's service plan and prior approved by the Department or Area Agency on Aging.

(34) "Individual" means a person age 65 or older, or an adult with a physical disability, applying for or eligible for services per OAR 411-015-0100.

(35) "Individualized Back-Up Plan" means a plan incorporated into an Independent Choices Program service plan to address critical contingencies or incidents that pose a risk or harm to a participant's health and welfare.

(36) "In-Home Services" mean those services that meet an individual's assessed need related to activities of daily living and instrumental activities of daily living when the individual resides in a living arrangement that meets the criteria described in OAR 411-030-0033.

(37) "Instrumental Activities of Daily Living (IADL)" mean those activities, other than activities of daily living, required by an individual to continue independent living. The definitions and parameters for assessing needs in IADL are identified in OAR 411-015-0007.

(38) "Liability" refers to the dollar amount an individual with excess income contributes to the cost of service pursuant to OAR 461-160-0610 and OAR 461-160-0620.

(39) "Medicaid OHP Plus Benefit Package" means only the Medicaid benefit packages provided under OAR 410-120-1210(4)(a) and (b). This excludes individuals receiving Title XXI benefits.

(40) “Misuse of ICP Funds” means using ICP funds for any purpose other than to pay for services to meet Activities of Daily Living (ADL), Instrumental Activities of Daily Living (IADL), approved discretionary fund expenditures or contingency fund expenditures.

(41) "Natural Supports" or "Natural Support System" means resources and supports (e.g., relatives, friends, neighbors, significant others, roommates, or the community) who are willing to voluntarily provide services to an individual without the expectation of compensation. Natural supports are identified in collaboration with the individual and the potential "natural support". The natural support is required to have the skills, knowledge, and ability to provide the needed services and supports.

(42) "Oregon Project Independence (OPI)" means the program of in-home services described in OAR chapter 411, division 032.

(43) "OSIPM" means Oregon Supplemental Income Program-Medical as defined in OAR 461-101-0010. OSIPM is Oregon Medicaid insurance coverage for individuals who meet eligibility criteria as described in OAR chapter 461.

(44) "Participant" means an individual eligible for and enrolled in the Independent Choices Program.

(45) "Person-Centered Service Plan (Service Plan)" means, for Medicaid eligible individuals, the written details of the supports, desired outcomes, activities, and resources required for an individual to achieve and maintain personal goals, health, and safety. The plan is written by the case manager with input and approval from the individual.

(46) "Provider" means the person who renders the services.

(47) "Rate Schedule" means the rate schedule in OAR 411-027-0170 and maintained by the Department at http://www.dhs.state.or.us/spd/tools/program/osip/rateschedule.pdf.

(48) "Relative" means a person, excluding an individual's spouse, who is related to the individual by blood, marriage, or adoption.

(49) "Representative" is a person either appointed by an individual to participate in service planning or to assist in managing the duties of a consumer-employer on the individual's behalf or an individual's natural support with longstanding involvement in assuring the individual's health, safety, and welfare. There are additional responsibilities for an ICP representative as described in OAR 411-030-0100. An ICP representative may not be a paid employee provider regardless of relationship to a participant.

(50) "Service Budget" means a participant’s plan for the distribution of authorized funds that are under the control and direction of the participant within the Independent Choices Program. A service budget is a required component of the participant's service plan.

(51) "Service Need" means the assistance an individual requires from another person for those functions or activities identified in OAR 411-015-0006 and 411-015-0007.

(52) "Service Period" means specific two consecutive workweeks, defined by the Department, for a total of 14 calendar days.

(53) "Shift Services" are hourly services provided by awake homecare workers, Independent Choices Program employee providers, or a contracted in-home care agency provider to an individual who is authorized to receive 16 hours of services during a 24-hour work period.

(54) "Spouse" means a person that is legally married to an individual as defined in OAR 461-001-0000.

(55) "SUTA" is the acronym for State Unemployment Tax Assessment. State unemployment taxes are paid by employers to finance the unemployment benefit system that exists in each state.

(56) "Tasks" means distinct parts of an activity of daily living.

(57) "These Rules" mean the rules in OAR chapter 411, division 030.

(58) "Workweek" is defined as 12:00 a.m. on Sunday through 11:59 p.m. on Saturday.

History

Statutory/Other Authority: ORS 409.050, 410.070 & 410.090
Statutes/Other Implemented: ORS 410.010, 410.020 & 410.070
APD 10-2023, amend filed 06/29/2023, effective 07/01/2023
APD 32-2020, amend filed 07/23/2020, effective 08/01/2020
APD 3-2020, temporary amend filed 02/21/2020, effective 02/21/2020 through 08/18/2020
APD 40-2018, amend filed 11/15/2018, effective 11/18/2018
APD 11-2018, temporary amend filed 05/23/2018, effective 05/23/2018 through 11/18/2018
APD 3-2018, amend filed 01/27/2018, effective 01/28/2018
APD 21-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 01/27/2018
APD 18-2017(Temp), f. & cert. ef. 8-1-17 thru 1-27-18
SSD 5-1983, f. 6-7-83, ef. 7-1-83; SSD 3-1985, f. & ef. 4-1-85; SSD 5-1987, f. & ef. 7-1-87; SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93; SSD 6-1994, f. & cert. ef. 11-15-94; SPD 14-2003, f. & cert. ef. 7-31-03; SPD 15-2003 f. & cert. ef. 9-30-03; SPD 18-2003(Temp), f. & cert. ef. 12-11-03 thru 6-7-04; SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04; SPD 18-2005(Temp), f. 12-20-05, cert. ef. 12-21-05 thru 6-1-06; SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 3-2007(Temp), f. 4-11-07, cert. ef. 5-1-07 thru 10-28-07; SPD 17-2007, f. 10-26-07, cert. ef. 10-28-07; SPD 4-2008(Temp), f. & cert. ef. 4-1-08 thru 9-24-08; SPD 13-2008, f. & cert. ef. 9-24-08; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13; SPD 16-2013(Temp), f. & cert. ef. 7-1-13 thru 11-19-13; SPD 43-2013, f. 10-31-13, cert. ef. 11-1-13; APD 9-2014(Temp), f. 4-17-14, cert. ef. 4-21-14 thru 10-18-14; APD 35-2014, f. & cert. ef. 10-1-14; APD 19-2015(Temp), f. & cert. ef. 9-21-15 thru 3-18-16; APD 5-2016, f. 3-15-16, cert. ef. 3-18-16

Or. Admin. R. 411-030-0033 In-Home Service Living Arrangements

(1) The following terms are used in this rule:

(a) "Informal arrangement" means a paid or unpaid arrangement for shelter or utility costs that does not include the elements of a property manager's rental agreement.

(b) "Property manager's rental agreement" means a payment arrangement for shelter or utility costs with a property owner, property manager, or landlord that includes all of the following elements:

(A) The name and contact information for the property manager, landlord, or leaser.

(B) The period or term of the agreement and method for terminating the agreement.

(D) The rental fee and any other charges (such as security deposits).

(E) The frequency of payments (such as monthly).

(F) What costs are covered by the amount of rent charged (such as shelter, utilities, or other expenses).

(G) The duties and responsibilities of the property manager and the tenant, such as:

(i) The person responsible for maintenance;

(ii) If the property is furnished or unfurnished; and

(iii) Advance notice requirements prior to an increase in rent.

(c) "Provider-owned dwelling" means a dwelling that is owned by a provider or the provider's spouse, when the provider is proposing to be paid for providing Medicaid home and community-based services, and the provider or the provider’s spouse is not related to an individual by blood, marriage, or adoption. Provider-owned dwellings include, but are not limited to:

(A) Houses, apartments, and condominiums.

(B) A portion of a house such as basement or a garage even when remodeled to be used as a separate dwelling.

(D) Duplexes, unless the structure displays a separate address from the other residential unit and was originally built as a duplex.

(d) "Provider-rented dwelling" means a dwelling that is rented or leased by a provider or the provider's spouse, when the provider is proposing to be paid for providing Medicaid home and community-based services, and the provider or the provider’s spouse is not related to an individual by blood, marriage, or adoption.

(2) An individual is eligible for Medicaid in-home services if the individual resides in a --

(a) Dwelling the individual owns or rents;

(b) Provider-owned dwelling and the individual's name is on the property deed, mortgage, or title;

(d) Dwelling, either through an informal arrangement or property manager’s rental agreement, owned or rented by a relative as defined in OAR 411-030-0020.

(3) An individual is not eligible for Medicaid in-home services if the individual resides in a provider-owned or rented dwelling through an informal or formal arrangement or is residing in a provider owned, controlled or operated residential setting.

History

Statutory/Other Authority: ORS 409.050, 410.070 & 410.090
Statutes/Other Implemented: ORS 410.010, 410.020 & 410.070
APD 32-2020, amend filed 07/23/2020, effective 08/01/2020
APD 3-2020, temporary amend filed 02/21/2020, effective 02/21/2020 through 08/18/2020
APD 44-2016, f. 12-20-16, cert. ef. 12-28-16
SPD 43-2013, f. 10-31-13, cert. ef. 11-1-13
SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13
SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09
SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06
SPD 18-2005(Temp), f. 12-20-05, cert. ef. 12-21-05 thru 6-1-06
SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04
SPD 18-2003(Temp), f. & cert. ef. 12-11-03 thru 6-7-04
SPD 15-2003, f. & cert. ef. 9-30-03
SPD 14-2003, f. & cert. ef. 7-31-03
SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93

Or. Admin. R. 411-030-0040 Eligibility Criteria

(1) In-home services are provided to individuals who meet the established priorities for service as described in OAR chapter 411, division 015 who have been assessed to be in need of in-home services. Payments for in-home services are not intended to replace the resources available to an individual from the individual's natural supports.

(2) An individual receiving Medicaid in-home services must:

(a) Meet the established priorities for service as described in OAR chapter 411, division 015.

(b) Meet all the eligibility requirements in OAR 411-015-0010 through 411-015-0100

(3) An individual receiving services through the Independent Choices Program must:

(a) Meet the established priorities for service as described in OAR chapter 411, division 015.

(b) Be a current recipient of OSIPM (Oregon Supplemental Income Program Medical).

(d) Be 18 years of age or older.

(4) CONSUMER-EMPLOYER RESPONSIBILITIES.

(a) To be eligible for in-home services provided by a homecare worker, an individual must be able to, or designate a representative to:

(A) Locate, screen, and hire a qualified homecare worker;

(B) Supervise and train the homecare worker;

(D) Track the hours worked and verify the authorized hours completed by the homecare worker;

(E) Recognize, discuss, and attempt to correct any performance deficiencies with the homecare worker;

(F) Discharge an unsatisfactory homecare worker; and

(G) Follow all employer responsibilities required by law to ensure the workplace is safe from harassment.

(b) The Department may require individuals who have failed to meet the responsibilities in subsection (a) of this section to designate a representative to exercise these responsibilities. A representative of an individual may not be a homecare worker providing homecare worker services to the individual.

(A) Individuals who have failed to meet the responsibilities in subsection (a) of this section and who does not have a representative are ineligible for in-home services provided by a homecare worker.

(B) Individuals must also be offered other available community-based service options to meet the individual’s service needs, including contracted in-home care agency services, nursing facility services, or other community-based service options.

(c) An individual determined ineligible for in-home services provided by a homecare worker and who does not have a representative may request in-home services provided by a homecare worker at the individual's next re-assessment, but no sooner than 12 months from the date the individual was determined ineligible.

(A) To reestablish eligibility for in-home services provided by a homecare worker, an individual must attend training and acquire, or otherwise demonstrate, the ability to meet the employer responsibilities in subsection (a) of this section. Improvements in health and cognitive functioning, for example, may be factors in demonstrating the individual's ability to meet the employer responsibilities in subsection (a) of this section.

(B) If the Department determines an individual may not meet the individual’s employer responsibilities, the Department may require the individual appoint an acceptable representative.

(d) The Department retains the right to approve the representative selected by an individual. Approval may be based on, but is not limited to, the representative’s criminal history, protective services history, or credible allegations of fraud or collusion in fraudulent activities involving a public assistance program.

(e) If an individual’s designated representative is unable to meet the employer responsibilities of subsection (a) of this section, or the Department does not approve the representative, the individual must designate a different representative or select other available services.

(f) An individual with a history of credible allegations of fraud or collusion in fraud with respect to in-home services is not eligible for in-home services provided by a homecare worker or by a personal support worker under the Independent Choices Program.

(5) REPRESENTATIVE.

(a) The Department may require that an individual obtain a representative to act as the consumer-employer or for service planning purposes.

(c) An individual with a guardian must have a representative to act as the consumer-employer and for service planning purposes. A guardian may designate themselves as the representative.

(d) A representative may not be a paid caregiver for the individual they are representing.

(6) Additional eligibility criteria for Medicaid in-home services exist for individuals eligible for:

(a) The Consumer-Employed Provider Program as described in OAR chapter 411, division 031;

(b) The Independent Choices Program as described in OAR 411-030-0100 of these rules; and

(7) Individuals living in any of the following settings are not eligible for in-home services:

(a) A licensed community-based care facility, including an adult foster home;

(b) A nursing facility;

(d) A hospital; or

(e) Any other institution or facility that provide assistance with ADLs or other services.

(8) Individuals with excess income must contribute to the cost of service pursuant to OAR 461-160-0610 and OAR 461-160-0620.

History

Statutory/Other Authority: ORS 409.050, 410.070 & 410.090
Statutes/Other Implemented: ORS 410.010, 410.020 & 410.070
APD 32-2020, amend filed 07/23/2020, effective 08/01/2020
APD 40-2018, amend filed 11/15/2018, effective 11/18/2018
APD 11-2018, temporary amend filed 05/23/2018, effective 05/23/2018 through 11/18/2018
APD 3-2018, amend filed 01/27/2018, effective 01/28/2018
APD 21-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 01/27/2018
APD 9-2015, f. 3-30-15, cert. ef. 4-3-15
APD 49-2014(Temp), f. 12-30-14, cert. ef. 1-1-15 thru 6-29-15
APD 35-2014, f. & cert. ef. 10-1-14
APD 9-2014(Temp), f. 4-17-14, cert. ef. 4-21-14 thru 10-18-14
SPD 43-2013, f. 10-31-13, cert. ef. 11-1-13
SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13
SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09
SPD 13-2008, f. & cert. ef. 9-24-08
SPD 4-2008(Temp), f. & cert. ef. 4-1-08 thru 9-24-08
SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06
SPD 1-2006(Temp), f. & cert. ef. 1-13-06 thru 6-1-06
SPD 18-2005(Temp), f. 12-20-05, cert. ef. 12-21-05 thru 6-1-06
SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04
SPD 18-2003(Temp), f. & cert. ef. 12-11-03 thru 6-7-04
SPD 15-2003, f. & cert. ef. 9-30-03
SPD 14-2003, f. & cert. ef. 7-31-03
SPD 2-2003(Temp), f. 1-31-03, cert. ef. 2-1-03 thru 7-30-03
SSD 4-1993, f. 4-30-93, cert. ef. 6-12-93, Renumbered from 411-030-0001
SSD 3-1985, f. & cert. ef. 4-1-85

Or. Admin. R. 411-030-0050 Case Management

(1) ASSESSMENT. The assessment process identifies an individual's ability to perform ADLs, IADLs, and determines an individual's ability to address health and safety concerns.

(a) The case manager must conduct an assessment in accordance with the standards of practices established by the Department in OAR 411-015-0008.

(b) The assessment must be conducted by a case manager or other qualified Department or AAA representative with a standardized assessment tool approved by the Department in the home of the eligible individual, no less than annually.

(2) PERSON-CENTERED SERVICE PLAN.

(a) An individual receiving services, or the individual’s representative, and the individual's case manager, must consider in-home service options as well as assistive devices, architectural modifications, and other community-based resources to meet the service needs identified in the assessment process.

(A) The individual or the individual's representative is responsible for choosing and assisting in developing less costly service alternatives, including the Consumer-Employed Provider Program and contracted in-home care agency services.

(B) The case manager is responsible for --

(i) Determining eligibility for specific services;

(ii) Presenting service options, resources, and alternatives to the individual to assist the individual in making informed choices and decisions;

(iii) Identifying risks;

(iv) Assisting the individual with developing backup plans;

(v) Identifying the individual’s goals and preferences;

(vi) Assessing the cost effectiveness of the individual's service plan; and

(vii) Developing and coordinating a person-centered service plan.

(b) The Department takes necessary safeguards to protect an individual's health, safety, and welfare in implementing an individual's service plan in accordance with 42 CFR 441.302 and 42 CFR 441.570. When an individual with the ability to make an informed decision selects a service choice that jeopardizes health and safety, the Department or AAA staff shall offer or recommend options to the individual in order to minimize those risks. For the purpose of this rule, an "informed decision" means the individual understands the benefits, risks, and consequences of the service choice selected. Options that minimize risks may include offering or recommending:

(A) Natural supports to help with safety or health emergencies;

(B) An emergency response system;

(D) Resources for emergency disaster planning;

(E) A referral for long term care community nursing services;

(F) Resources for provider and consumer training;

(G) Assistive devices; or

(H) Architectural modifications.

(c) The Department or AAA may not authorize a service provider, service setting, or a combination of services selected by an eligible individual or the individual's representative when --

(A) The service setting has dangerous conditions that jeopardize the health or safety of the individual and necessary safeguards cannot be taken to improve the setting;

(B) Services cannot be provided safely or adequately by the service provider based on --

(i) The extent of the individual's service needs; or

(ii) The choices or preferences of the eligible individual or the individual's representative;

(C) Dangerous conditions in the service setting jeopardize the health or safety of the service provider that is authorized and paid for by the Department, and necessary safeguards cannot be taken to minimize the dangers; or

(D) The individual does not have the ability to make an informed decision, does not have a designated representative to make decisions on his or her behalf, and the Department or AAA cannot take necessary safeguards to protect the safety, health, and welfare of the individual.

(d) The case manager must present the individual or the individual's representative with information on service alternatives and provide assistance to assess other choices when the service provider or service setting selected by the individual or the individual's representative is not authorized.

(3) PAYMENT.

(a) The service plan payment is considered full payment for Medicaid home and community-based services rendered. Under no circumstances is the service provider to demand or receive additional payment for these services from the consumer or any other source.

(b) Additional payment to homecare workers or ICP employee providers for the same services covered by Medicaid in-home services or the Spousal Pay Program is prohibited.

(d) For service plans in which a consumer lives in the relative homecare workers home, subsection (a) of this section does not apply to rent and living expenses.

History

Statutory/Other Authority: ORS 409.050, 410.070 & 410.090
Statutes/Other Implemented: ORS 410.010, 410.020 & 410.070
APD 32-2020, amend filed 07/23/2020, effective 08/01/2020
APD 3-2020, temporary amend filed 02/21/2020, effective 02/21/2020 through 08/18/2020
APD 3-2018, amend filed 01/27/2018, effective 01/28/2018
APD 21-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 01/27/2018
SPD 43-2013, f. 10-31-13, cert. ef. 11-1-13
SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13
SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09
SPD 13-2008, f. & cert. ef. 9-24-08
SPD 4-2008(Temp), f. & cert. ef. 4-1-08 thru 9-24-08
SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06
SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04
SPD 15-2003, f. & cert. ef. 9-30-03
SPD 14-2003, f. & cert. ef. 7-31-03
SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93, Renumbered from 411-030-0022
SSD 1-1992, f. & cert. ef. 2-21-92
SSD 16-1990, f. & cert. ef. 8-20-90
SSD 7-1990(Temp), f. & cert. ef. 3-1-90
SSD 18-1989, f. 12-29-89, cert. ef. 1-1-90
SSD 11-1989(Temp), f. & cert. ef. 9-1-89
SSD 9-1989, f. 6-30-89, cert. ef. 7-1-89
SSD 6-1988, f. & cert. ef. 7-1-88
SSD 1-1988, f. & cert. ef. 3-1-88
SSD 4-1987(Temp), f. & cert. ef. 7-1-87
SSD 16-1985, f. 12-31-85, cert. ef. 1-1-86
SSD 12-1985(Temp), f. & cert. ef. 9-19-85
SSD 3-1985, f. & cert. ef. 4-1-85
SSD 5-1983, f. 6-7-83, cert. ef. 7-1-83

Or. Admin. R. 411-030-0055 Community Transportation

(1) Community transportation (non-medical) may be prior-authorized for reasons related to an eligible individual's safety or health, in accordance with the individual's service plan. Community transportation is offered through contracted transportation providers or by homecare workers.

(2) Community transportation may be authorized to assist an eligible individual in getting to and from the individual's place of employment when the individual is approved for the Employed Persons with Disabilities Program (OSIPM-EPD).

(3) Natural supports, volunteer transportation, and other transportation services available to an eligible individual are considered a prior resource and may not be replaced with transportation paid for by the Department.

(4) Health Systems Division is a resource for medical transportation to a physician, hospital, clinic, or other medical service provider. Medical transportation costs are not reimbursed through community transportation.

(5) Community transportation is not provided by the Department to obtain medical or non-medical items that may be delivered by a supplier or sent by mail order without extra cost to the eligible individual.

(6) Community transportation must be prior authorized by an individual's case manager and documented in the individual's service plan. The Department does not pay any provider under any circumstances for more than the total number of hours, miles, or rides prior authorized by the Department or AAA and as documented in the individual's service plan.

(a) Contracted transportation providers are reimbursed according to the terms of their contract with the Department. Community transportation services provided through contracted transportation providers must be prior-authorized by a case manager based on an estimate of a total count of one-way rides per month.

(b) Homecare workers who use their own personal vehicle for community transportation are reimbursed according to the terms defined in their Collective Bargaining Agreement between the Home Care Commission and Service Employees International Union, Local 503, OPEU. Any mileage reimbursement authorized to a homecare worker must be based on an estimate of the maximum miles required to drive to and from the destination authorized in an individual's service plan. Community transportation hours are authorized in accordance with OAR 411-030-0070.

(c) The Department or AAA does not authorize reimbursement for travel to or from the residence of a homecare worker. The Department or AAA only authorizes community transportation and mileage from the home of an eligible individual to the destination authorized in the individual's service plan and back to the individual's home.

(7) The Department is not responsible for any vehicle damage or personal injury sustained or other liability incurred while using a personal motor vehicle for community transportation.

History

Statutory/Other Authority: ORS 409.050, 410.070 & 410.090
Statutes/Other Implemented: ORS 410.010, 410.020 & 410.070
APD 32-2020, amend filed 07/23/2020, effective 08/01/2020
APD 3-2020, temporary amend filed 02/21/2020, effective 02/21/2020 through 08/18/2020
APD 3-2018, amend filed 01/27/2018, effective 01/28/2018
APD 21-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 01/27/2018
SPD 43-2013, f. 10-31-13, cert. ef. 11-1-13
SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13
SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09
SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06
SPD 18-2005(Temp), f. 12-20-05, cert. ef. 12-21-05 thru 6-1-06

Or. Admin. R. 411-030-0068 Shift Services

(1) An individual is only eligible for shift services if the assessment and submission and review of a time/task log documenting three consecutive days of care provided determines the individual meets the criteria described in section (2) of this rule.

(2) Individuals must meet subsections (a) and either (b) or (c) of this section of the rule.

(a) The provision of assistance with at least one ADL or IADL task must be required sometime during each hour the individual is awake in order to ensure the safety and well-being of the individual. To meet this subsection, the individual, their representative, if applicable, or the case manager must submit a time/task log detailing the performance of the ADL and IADL tasks as defined in OAR chapter 411, division 015 for three (3) consecutive 24-hour periods. The log shall include the name of the task, the action performed and the duration of the task. The log must be complete and acceptable to the Department to qualify.

(b) The individual is assessed as full assist in mobility or elimination as defined in OAR 411-015-0006, and has at least one of the following conditions:

(A) A debilitating medical condition that includes, but is not limited to, any of the following:

(i) Cachexia;

(ii) Severe neuropathy;

(iii) Coma;

(iv) Persistent or reoccurring stage 3 or 4 wounds;

(v) Late stage cancer;

(vi) Frequent and unpredictable seizures; or

(vii) Debilitating muscle spasms.

(B) A spinal cord injury or similar disability with permanent impairment.

(3) Shift services hours may be reduced from the maximum of 16 hours a day for any of the following reasons:

(a) Reduced frequency or duration of an ADL need.

(b) Durable medical equipment, assistive technology or home modification reduces need for assistance.

(d) Services and supports provided by natural supports.

(e) Services and supports provided or funded by another agency.

(f) IADL hours due to small living space.

(4) DHS Central Office shall make the final determination of eligibility for shift services and the number of hours authorized for the individual by using the criteria in sections 2 and 3 of this rule.

(5) Exceptions to the 16 hour limit may, at the sole discretion of the Department, be approved if the criteria in 411-030-0071 are met.

(6) An individual may be eligible for a differential rate in accordance with the terms of the ratified collective bargaining agreement described in OAR 411-031-0020, if requested through the Case Manager and if the following applies:

(a) The individual is diagnosed with quadriplegia or a condition that is substantially similar;

(b) The individual is dependent on a ventilator;

(d) The individual requires 24-hour awake care, of which, at least 16 hours must be paid shift care; and

(e) The plan is approved by Central Office.

(7) An individual may be eligible for an exceptional rate in accordance with the terms of the ratified collective bargaining agreement and the training requirements described in OAR 411-031-0040(8)(h), if the following applies:

(a) The individual requires extensive behavioral support and is assessed as a Substantial Assist or Full Assist in the component of Challenging Behaviors as described in OAR 411-015-0006(3)(d);

(b) The individual is eligible for and receives at least 16 hours of paid care per day; and

History

Statutory/Other Authority: ORS 409.050, 410.070 & 410.090
Statutes/Other Implemented: ORS 410.010, 410.020 & 410.070
APD 6-2024, amend filed 02/22/2024, effective 02/23/2024
APD 14-2023, temporary amend filed 08/22/2023, effective 09/01/2023 through 02/27/2024
APD 32-2020, amend filed 07/23/2020, effective 08/01/2020
APD 3-2020, temporary amend filed 02/21/2020, effective 02/21/2020 through 08/18/2020
APD 3-2018, amend filed 01/27/2018, effective 01/28/2018
APD 21-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 01/27/2018
APD 18-2017(Temp), f. & cert. ef. 8-1-17 thru 1-27-18
APD 44-2016, f. 12-20-16, cert. ef. 12-28-16
APD 12-2016(Temp), f. 6-27-16, cert. ef. 7-1-16 thru 12-27-16
APD 5-2016, f. 3-15-16, cert. ef. 3-18-16
APD 19-2015(Temp), f. & cert. ef. 9-21-15 thru 3-18-16

Or. Admin. R. 411-030-0070 Maximum Hours of Service

(1) LEVELS OF ASSISTANCE FOR DETERMINING SERVICE PLAN HOURS.

(a) "Minimal Assistance" means an individual is able to perform the majority of an activity but requires some assistance from another person.

(b) "Substantial Assistance" means an individual is able to perform only a small portion of the tasks that comprise an activity without assistance from another person.

(c) "Full Assistance" means an individual needs assistance from another person through all tasks of an activity every time the activity is attempted.

(2) MAXIMUM SERVICE PERIOD HOURS FOR ADL.

(a) The planning process uses the following maximum hours limitations for each service period for ADL tasks. Maximum hours in each assistance level are not guaranteed. Hours authorized must be based on the service needs of an individual as determined by the Case Manager during the person-centered service planning process.

(b) For in-home benefit plans created after May 21, 2018, the following maximums apply:

(A) Eating:

(i) Minimal assistance, three hours.

(ii) Substantial assistance, nine hours.

(iii) Full assistance, fourteen hours.

(B) Dressing and Grooming:

(i) Minimal assistance, two hours.

(ii) Substantial assistance, seven hours.

(iii) Full assistance, nine hours.

(i) Minimal assistance, five hours.

(ii) Substantial assistance, seven hours.

(iii) Full assistance, twelve hours.

(D) Mobility:

(i) Minimal assistance, five hours.

(ii) Substantial assistance, seven hours.

(iii) Full assistance, twelve hours.

(E) Elimination (Toileting, Bowel, and Bladder):

(i) Minimal assistance, five hours.

(ii) Substantial assistance, nine hours.

(iii) Full assistance, fourteen hours.

(F) Cognition:

(i) Minimal assistance, three hours.

(ii) Substantial assistance, six hours.

(iii) Full assistance, twelve hours.

(c) Service plan hours for ADL may only be authorized for an individual if the individual requires assistance (minimal, substantial, or full assist) from another person in the tasks associated with the activity of daily living as determined by a service assessment applying the parameters in OAR 411-015-0006.

(d) The Case Manager may authorize fewer hours than the maximum number of hours in any or all ADL tasks based on their assessment of the individual’s unmet need. The Case Manager must document the reason for authorizing fewer hours than the maximum number of hours allowed. The case manager may authorize fewer hours than the maximum for any of the following defined reasons:

(A) Reduced frequency or duration of an ADL need.

(B) Durable medical equipment or home modification reduces need for assistance.

(D) Natural supports.

(E) Provided or funded by another agency.

(e) For households with two or more eligible individuals, each individual's ADL service needs must be considered separately.

(f) Hours authorized for ADL are paid at the rates in accordance with the rate schedule. The Independent Choices Program cash benefit is based on the hours authorized for ADLs paid at the rates in accordance with the rate schedule. Participants of the Independent Choices Program may determine their own employee provider pay rates but must follow all applicable wage and hour rules and regulations.

(3) MAXIMUM SERVICE PERIOD HOURS FOR IADL.

(a) The planning process uses the following limitations for time allotments for IADL tasks. Maximum hours in each assistance level are not guaranteed. Hours authorized must be based on the unmet service needs of an individual as determined by the case manager during the person-centered service planning process.

(A) Medication Management:

(i) Minimal assistance, one hour.

(ii) Substantial assistance, two hours.

(iii) Full assistance, five hours.

(B) Transportation:

(i) Minimal assistance, one hour.

(ii) Substantial assistance, one hour.

(iii) Full assistance, two hours.

(i) Minimal assistance:

(I) Breakfast, one hour.

(II) Lunch, one hour.

(III) Supper, two hours.

(ii) Substantial assistance:

(I) Breakfast, two hours.

(II) Lunch, two hours.

(III) Supper, three hours.

(iii) Full assistance:

(I) Breakfast, five hours.

(II) Lunch, five hours.

(III) Supper, six hours.

(D) Shopping:

(i) Minimal assistance, one hour.

(ii) Substantial assistance, two hours.

(iii) Full assistance, three hours.

(E) Housekeeping and Laundry:

(i) Minimal assistance, two hours.

(ii) Substantial assistance, five hours.

(iii) Full assistance, nine hours.

(b) Hours authorized for IADL are paid at the rates in accordance with the rate schedule. The Independent Choices Program cash benefit is based on the hours authorized for IADLs paid at the rates in accordance with the rate schedule. Participants of the Independent Choices Program may determine their own employee provider pay rates but must follow all applicable wage and hour rules and regulations.

(c) When two or more individuals eligible for IADL task hours live in the same household, the assessed need in medication management and transportation must be authorized separately. Payment is made for the individual with the highest of the allotments in meal preparation, shopping, and housekeeping and laundry and a total of two additional IADL hours per service period for each additional individual to allow for the specific IADL needs of the other individuals.

(d) Service plan hours for IADL tasks may only be authorized for an individual if the individual requires assistance (minimal, substantial, or full assist) from another person in that IADL task as determined by a service assessment applying the parameters in OAR 411-015-0007. Hours authorized must incorporate the frequency and the duration of the tasks within each instrumental activity of daily living. For housekeeping, the size of the home may be used to reduce the hours. For meal preparation, hours must be reduced if an individual is receiving Medicaid home delivered meals.

(e) The Case Manager may authorize fewer hours than the maximum number hours in any or all IADLs based on their assessment of the individual's unmet need. The Case Manager must document the reason for authorizing fewer hours than the maximum hours. The Case Manager may reduce hours for any of the following reasons:

(A) Reduced frequency or duration of an IADL need.

(B) Durable medical equipment or home modification reduces need for assistance.

(D) Natural supports.

(E) Provided by or funded by another agency.

(F) Small living space.

(4) When one or more eligible individuals are living in the same household and receiving in-home services, the total number of hours authorized for ADLs and IADLs may not exceed 24 hours within any 24-hour period in the same household unless an exception is granted as described in OAR 411-030-0071.

(5) A single homecare worker is limited to 16 hours of awake care during a 24-hour work period.

(6) For the creation of a new service plan (resulting from an assessment) beginning September 1, 2016, all homecare workers are limited to 40 hours per week unless:

(a) The homecare worker’s average paid workweek hours in the months of March, April, and May 2016 equaled or exceeded 40 hours per workweek. These homecare workers are limited to no more than 50 hours per week.

(b) The individual has received a “Weekly Cap” exception.

(7) In an emergency or unanticipated situation where the homecare worker must provide critical care to ensure the health or safety of the individual and the Department is unavailable to provide prior-authorization, the following shall be permitted if the homecare worker or individual notifies the Department within two business days of the date the additional hours were first:

(a) Worked to meet an ADL need totaling more than the hours established by section (5)(b) and (c) of this rule.

(b) Worked to meet an ADL need that exceed the total amount authorized by the Department on the service plan authorization.

(c) Totaling more than the hours established by section (5)(a) of this rule if an unanticipated need arises that requires the homecare worker to remain awake to provide necessary ADL care.

(8) A provider may not receive payment from the Department for more than the total amount authorized by the Department on the service plan authorization form under any circumstances. All service payments must be prior-authorized by a case manager. This section shall be waived if the criteria in (6) are met.

(9) Case managers must assess and utilize as appropriate, natural supports, cost-effective assistive devices, durable medical equipment, housing accommodations, and alternative service resources (as defined in OAR 411-015-0005) that may reduce the need for paid assistance.

(10) The Department may authorize paid in-home services only to the extent necessary to supplement potential or existing resources within an individual's natural supports system.

(11) Payment by the Department for Medicaid home and community-based services are only made for the tasks described in this rule as ADL or IADL tasks. Services must be authorized to meet the needs of an eligible individual and may not be provided to benefit an entire household.

(12) An individual who meets the Extended Waiver Eligibility criteria outlined in OAR 411-015-0030 is eligible to receive a maximum total of 10 hours per service period to accomplish ADLs and IADLs.

History

Statutory/Other Authority: ORS 409.050, 410.070 & 410.090
Statutes/Other Implemented: ORS 410.010, 410.020 & 410.070
APD 32-2020, amend filed 07/23/2020, effective 08/01/2020
APD 3-2020, temporary amend filed 02/21/2020, effective 02/21/2020 through 08/18/2020
APD 40-2018, amend filed 11/15/2018, effective 11/18/2018
APD 11-2018, temporary amend filed 05/23/2018, effective 05/23/2018 through 11/18/2018
APD 3-2018, amend filed 01/27/2018, effective 01/28/2018
APD 21-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 01/27/2018
APD 18-2017(Temp), f. & cert. ef. 8-1-17 thru 1-27-18
APD 44-2016, f. 12-20-16, cert. ef. 12-28-16
APD 12-2016(Temp), f. 6-27-16, cert. ef. 7-1-16 thru 12-27-16
APD 19-2015(Temp), f. & cert. ef. 9-21-15 thru 3-18-16
APD 11-2014, f. & cert. ef. 5-1-14
SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 6-2012, f. 5-31-12, cert. ef. 6-1-12
SPD 24-2011(Temp), f. 11-15-11, cert. ef. 1-1-12 thru 6-29-12
SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09
SPD 13-2008, f. & cert. ef. 9-24-08
SPD 4-2008(Temp), f. & cert. ef. 4-1-08 thru 9-24-08
SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06
SPD 18-2005(Temp), f. 12-20-05, cert. ef. 12-21-05 thru 6-1-06
SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04
SPD 15-2003, f. & cert. ef. 9-30-03
SPD 14-2003, f. & cert. ef. 7-31-03
SDSD 3-2000, f. 4-11-00, cert. ef. 4-12-00
SDSD 8-1999(Temp), f. & cert. ef. 10-15-99 thru 4-11-00
SSD 6-1994, f. & cert. ef. 11-15-94
SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93

Or. Admin. R. 411-030-0071 Exceptions to Maximum Hours of Service

(1) Eligibility for In-Home Exceptions to Maximum Hours of Service.

(a) If the Department determines the individual’s assessed service needs will not be adequately met within the maximum number of hours for a specific ADL or specific IADL as set forth in OAR 411-030-0070, and the Department determines the individual meets all of the requirements in these rules and in OAR 411-027-0050, then the individual shall receive an exception to the maximum hours per ADL and IADL.

(b) If the Department determines the individual’s assessed service needs will not be adequately met within the maximum number of hours to address cognitive impairments, and the individual meets the requirements in this rule, the individual shall receive an exception to the maximum hours in cognition and other affected ADLs as described in OAR 411-015-0006.

(A) Based solely on a desire for services outside of assessed service needs.

(B) Not medically appropriate.

(D) For services not covered in the 1915(k) State Plan, OAR 411-015-0006, or OAR 411-015-0007.

(E) For tasks not identified in OAR 411-015-0006 and OAR 411-015-0007.

(F) Based solely on choice of the individual.

(2) Responsibility for Applying for an In-home Exception.

(a) An individual, or their representative, may make an initial exception request either orally or in writing if the individual believes their service plan is not meeting, or will not meet, their service needs.

(b) If the individual, or their representative, requests an exception or expresses concerns that their service needs are not being met, the case manager must help the individual apply for an exception, including completing required forms and gathering Department-required documentation.

(c) If the individual’s case manager assesses, or is notified by others with knowledge of the individual’s service needs, that the individual’s needs exceed the maximum hours, the case manager must work with the individual to determine the appropriate number of hours and submit an exception application;

(d) If the number of hours the case manager approves or recommends is fewer than the number requested by the individual or their representative, the individual’s requested exception shall be reviewed as presented by the individual, and a decision will be made on that request per the process defined in section (3) of this rule.

(e) In-home care providers may not submit requests for exceptions. They may notify the case manager of concerns and the case manager shall discuss the concerns with the individual or their representative and ask if the individual wants to apply for an exception.

(3) Exception Application Process.

(a) An individual may apply for an exception, described in section (2) of this rule, by:

(A) Completing an exception application form, available from the case manager, and providing any information that supports the request for additional hours; or

(B) Requesting that their case manager complete the SDS 514i on their behalf; or

(b) Prior to processing an application for an exception, the case manager must discuss alternate ways, resources, and service options, if any, to meet the individual’s needs consistent with the individual’s right to independence, choice, and responsibility to assist in developing the least costly plan as described in OAR 411-030-0050(2)(a).

(c) After discussing alternative ways to meet the individual’s needs described in subsection (b) of this rule, if the individual continues to desire an exception, then the exception application shall be processed.

(d) The Exception Application Form, regardless of who completes the form, must be signed by the individual or their representative in order for the application to be reviewed unless criteria described in OAR 411-030-0071(5)(f) is met.

(e) The CA/PS assessment must have been completed within three months before the exception request, and it must represent the individual’s current condition and functioning. If the individual's application for an exception is not within the timeframe noted in this subsection, a new assessment must be completed to document current needs. DHS Central Office may waive this requirement when criteria described in OAR 411-030-0071(5)(f) is met.

(f) If the wait for a new assessment threatens the health, safety, or welfare of the individual, as determined by the Department, the Department shall waive the three-month requirement in subsection (e) of this rule.

(g) The Exception Application Form must clearly describe:

(A) The frequency of the task that is needed, based on the number of times per day or week that assistance is needed.

(B) The duration of the task, based on the average amount of time a task takes to complete each time the task is performed or attempted and an explanation of why, if applicable, the tasks require more time than the maximum allowed hours described in OAR 411-030-0070.

(D) The number of providers needed for each task and an explanation of why, if applicable, the tasks require more than one provider.

(E) The reasons why the current hours do not meet the need, and an explanation of why any less costly options discussed will not meet the need.

(F) Any other information that explains the need for the exception.

(h) The Exception Application Form shall include an attestation that all the information is accurate and truthful.

(i) The individual, or their representative, is responsible for ensuring that sufficient documentation is provided. A case manager shall assist the individual in collecting the requested documentation. If the requested documentation is not provided to the Department, DHS may issue an exception denial.

(4) Required Documentation.

(a) All Exception applications must include the Exception Application Form, SDS 514i. The form must be complete, signed by the individual, or their representative unless criteria described in OAR 411-030-0071(5)(f) is met, and accurate.

(b) To support the application, the Department may require the individual, or their representative, to provide further documentation during the Exception decision making process. This documentation, in addition to the Exception Application Form, may include, but is not limited to:

(A) An Exception Calculator, which will be provided by the Department, upon request;

(B) A caregiver time/task log detailing the performance of the ADL and IADL tasks as defined in OAR chapter 411, division 015 for three (3) consecutive 24-hour periods. The log shall include the name of the ADL/IADL task, the action performed and the duration that it took the provider to perform the task. The log must be complete and be acceptable to the Department to qualify; and

(5) Exception Decision Making Authority.

(a) Local office management shall make final decisions on the exception application if the exception application does not exceed the total maximum hours, defined in OAR 411-030-0070:

(A) The ADL limit is 73 hours per service period; or

(B) The IADL limit is 35 hours per service period.

(b) DHS Central Office shall make final decisions on exceptions exceeding the maximum hour limits defined in (5)(a)(A) and (B) of this section.

(c) If the exception application meets the criteria defined in (5)(a) of this section, the local office manager must review the exception application, related documents, and the CA/PS assessment comments for accuracy, completeness, and justification of the request and either approve, partially approve, or deny the request in writing no more than 14 calendar days from the date of the exception request. The individual, or their representative, may appeal any unfavorable decision.

(d) If the exception application exceeds the authority defined in (5)(a) of this section, the local office management must submit the exception application to DHS Central Office within three business days of receipt of the application.

(e) Unless (5)(f) or 5(g) of this rule applies, DHS Central Office has no more than 30 calendar days from the date the exception application and any supporting documentation has been received to complete its review and make a determination.

(f) In emergency situations that threaten the health, welfare or safety of the individual, DHS Central Office will make a decision within two business days of receipt of the application. DHS Central Office may elect to make a decision without all of the required documentation; however, any approvals will only be made for no longer than the end of next service period.

(g) If DHS Central Office determines that it needs additional information, DHS Central Office will notify the case manager or local office manager in writing within three business days of receipt of the application. The case manager, or local office manager must notify the individual, or their representative, within two business days that additional information is needed.

(h) The individual, or their representative, or case manager must provide the requested information to DHS Central Office within 14 calendar days of the Department’s request. The request for additional information will specify the due date and explain how to submit the required information.

(A) DHS Central Office has 14 calendar days from the date of receipt of the additional information to make a determination.

(B) If the individual fails to timely provide the requested information, DHS Central Office will complete the review based on the documentation in its possession. DHS Central Office has 14 calendar days from the date of the individual’s deadline for additional information to complete the review.

(C) If the individual, or their representative, responds to the request for additional information after the exception application has been denied due to a failure to provide additional information, the individual’s response will be considered a new request for an exception, with a new effective date.

(D) If the individual submits the required documentation after the 14-day timeframe, the individual may request an extension for good cause and request that the DHS Central Office issue a revised decision.

(E) The individual may request a good cause extension prior to the expiration of 14-day timeframe by requesting it via their case manager.

(F) Good cause exists when an action, delay, or failure to act arises from an excusable mistake or from factors beyond an individual’s reasonable control.

(i) For each Exception Application:

(A) If the Department determines that the documentation supports the requested additional hours over the maximum for the specific ADLs or IADLs, the exception will be granted.

(B) If the Department determines that the documentation supports additional hours but not as many hours as requested or for the timeframe requested, the exception will be granted for only those additional hours supported by the documentation.

(C) If DHS Central Office determines that the documentation does not support any additional hours over the maximum, the exception application will be denied.

(D) If DHS Central Office denies any portion of an Exception Application, as described in (h)(B) and (h)(C) of this subsection, the individual, or their representative, may request a hearing.

(6) Exception Application Reviews and Decision Making.

(a) All exception applications must be for hours of services and supports provided by APD. This means that the need must meet the definitions in each ADL or IADL and match the tasks and assistance types described in OAR 411-015-0006 and OAR 411-015-0007.

(b) Exception approvals are effective no earlier than the date the Exception Application is requested by the individual and received by the case manager and the home care provider has been authorized to work. If these do not occur on the same date, the later date is the effective date.

(A) Assessment Comments to ensure that the assessed need meets OAR definitions;

(B) Treatments that may drive care needs;

(D) Medical documentation that the way services are being provided is appropriate to the needs of the individual;

(E) Medical documentation, including those from the Long-Term Care Community Nurse or Behavior Support Specialists, that shows that the current level of services is not meeting the individual’s needs;

(F) The reasons for increased duration and frequency; and

(G) Other information explaining or related to the need for additional hours.

(d) To determine the appropriate number of exception hours, the Department shall review:

(A) Frequency of the care needs that require additional time in the relevant ADLs and IADLs.

(B) Duration of the care needs that require additional time in the relevant ADLs and IADLs.

(D) The number of individuals necessary to perform an assessed task.

(E) The complexity of the individual’s care needs.

(F) Whether denying the exception would put the individual at risk of placement out of home if the individual prefers to live in their own home.

(G) Whether denying the exception would result in substantial unmet needs of the individual that may jeopardize the individual’s health and safety.

(e) The Department may reduce the requested hours if the individual’s needs and choices are already met by:

(A) The availability of natural supports as defined in OAR 411-030-0020(40);

(B) Durable Medical Equipment or assistive devices or technology;

(D) Home and Environmental Modifications;

(E) Home Delivered Meals;

(F) Other supports that replace the need for human assistance as determined on a case-by-case basis consistent with individual choice;

(f) The Department may reduce the requested hours if:

(A) Requested hours do not meet ADL and IADL definitions in 411-015-0006 and 411-015-0007; or

(B) The way tasks are being provided are not medically appropriate as determined by:

(i) Information from the individual’s medical professionals;

(ii) APD’s Long Term Care Community Nurses or other nurses familiar with the care of the individual; or

(iii) Documentation provided from recent hospitalizations or nursing facility stays.

(7) Notification.

(a) The Department shall notify the individual about the outcome of the exception request in the notice of hours authorization decision, or an amended notice, if appropriate.

(b) Notification shall include:

(A) The name of the person who applied for exceptional service hours.

(B) The date the request was approved or denied.

(D) A reference to the attached 514 Exception Application Form.

(E) A summary of the reasons why the exceptional hours requested were approved or denied.

(F) The duration of the exception.

(G) Information on hearing rights and how to request a hearing.

(8) Duration. An exception is valid for the period defined in the notice, not to exceed the individual’s service plan end date.

(9) Reassessments.

(a) If an individual has an existing exception, the exception application must be resubmitted after the reassessment and will be reviewed prior to the exception end date. If the individual requests the same or fewer exception hours, a decision to renew the exception may be made without the consumer’s signature as defined in section (3)(d) of this rule The case manager may supply the required documentation as outlined in section (4) of this rule.

(b) Exceptions will be reviewed at reassessments, change of situations, or change of conditions.

History

Statutory/Other Authority: ORS 409.050 & ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 32-2020, amend filed 07/23/2020, effective 08/01/2020
APD 3-2020, temporary amend filed 02/21/2020, effective 02/21/2020 through 08/18/2020
APD 40-2018, adopt filed 11/15/2018, effective 11/18/2018
APD 11-2018, temporary adopt filed 05/23/2018, effective 05/23/2018 through 11/18/2018

Or. Admin. R. 411-030-0072 Exceptions to the Homecare Worker Cap

(1) An individual receiving in-home service hours may be eligible for an exception to the hourly cap on homecare worker weekly hours as defined in OAR 411-030-0070(5)(b) and (c), if:

(a) There are specific service needs that are not able to be met by other resources, homecare workers or providers; and

(b) The individual or their representative is appropriately managing their Consumer Employer Responsibilities as described in OAR 411-030-040(4)(a-f).

(2) An individual, their representative, or Case Manager may request an exception to the homecare worker cap orally or in writing if the individual believes their situation meets the criteria in (1) and (5).

(3) Exception to Homecare Worker Cap Application Process.

(a) Before processing an exception application for the homecare worker cap, the case manager must follow OAR 411-030-0050(2)(a)(B) and discuss with the individual or their representative alternative ways, if any, to meet the individual’s needs. This includes discussing:

(A) The individual’s responsibility to assist in developing less costly service alternatives described in OAR 411-030-0050(2)(a)(A); and

(B) Management of the Consumer Employer Responsibilities described in OAR 411-030-0040(4)(a-f).

(b) After the discussion in (a) of this section occurs and is documented by the case manager, an individual may apply for an exception to the homecare worker cap by completing an Exception Application Form, available from the case manager, and by providing any documentation required by the Department that supports the requested need for the weekly cap exception.

(A) Be signed by the individual, or their representative.

(B) Clearly describe the reason the homecare worker cap is not appropriate to meet the individual’s service needs.

(4) Exceptions to the homecare worker cap must be prior approved by DHS Central Office before payment will be made except when circumstances meet criteria in OAR 411-030-0070(7).

(5) DHS Central Office may grant an exception to the homecare worker cap if the individual or their representative continues to demonstrate the ability to engage in and manage their consumer employer responsibilities related to recruiting, hiring, and training workers, and at least one of the following are met:

(a) In the individual’s geographic area there is an insufficient number of homecare workers to meet the individual’s service plan, and, despite efforts to find or identify providers, no other resources are available, including in-home agencies, to meet the need;

(b) A homecare worker has quit or has been terminated. The exception is valid for the specified time period in the notice of cap exception approval, or until a replacement homecare worker can be hired, whichever comes first;

(d) A homecare worker does not show up when scheduled due to weather, illness, or any reason and needs are time-sensitive and would risk harm to the individual if a delay in services occurs. The circumstance meets criteria in OAR 411-030-0070(7).

(e) There is an emergent or urgent need of the individual such that postponing care until another worker could arrive or going without care would more likely than not result in the need for medical intervention; or

(f) The individual has specific ADL or IADL needs requiring care from a trained existing provider until additional providers are found and trained.

(6) The Department may approve exceptions up to 90 calendar days at a time.

(7) The Department shall notify the individual about the outcome of the request for an exception to homecare worker cap within 30 calendar days of the request.

(8) Notification shall include:

(a) For approval:

(A) The name of the particular homecare worker(s) approved;

(B) The approval begin and end dates; and

(b) For a denial:

(A) The reason the request was denied or partially denied; and

(B) Information on hearing rights and how to request a hearing.

(9) An approved exception to the homecare worker cap is valid for the period defined in the notice, not to exceed 90 calendar days.

(10) When the conditions for initial approval of a homecare worker cap are likely to continue beyond the approval period, in order to get re-approved without an interruption, a new request must be submitted on the SDS 514i form by the individual 15 calendar days prior to the approval period end date and include documentation describing actions taken and any progress made in reducing the need to exceed the homecare worker weekly hours cap.

(11) An exception to the homecare worker cap that has been granted is valid for only the specific consumer-employer and the homecare worker identified in the approval notice.

(12) The Department may deny or partially deny a request to exceed the Homecare Worker Cap if:

(a) The request does not meet the criteria in section (1) and one or more criteria in (5)(a)-(f) of this rule;

(b) The homecare worker in question is working for more than one individual;

(c) The individual or their representative fails to manage the Consumer-Employer Responsibilities described in OAR 411-030-0040(4)(a)-(f), as determined by the department;

(d) There is a conflict of interest created by the homecare worker also acting as a representative for an individual (OAR 411-031-0040(1));

(e) There exists another way to safely meet the individual’s needs;

(f) The request is based solely on consumer preference;

(g) Exceeding the cap is recurring to the extent that the need for additional workers becomes predictable as determined by the department; or

(h) When there are additional qualified providers available to select and the consumer has chosen not to select them.

(13) No exceptions to homecare worker’s cap may exceed an average of 16 hours a day per pay period. This limit applies per homecare worker.

(14) The individual is responsible for reducing or minimizing the need to exceed the cap by using other resources.

History

Statutory/Other Authority: ORS 409.050 & ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 32-2020, amend filed 07/23/2020, effective 08/01/2020
APD 3-2020, temporary amend filed 02/21/2020, effective 02/21/2020 through 08/18/2020
APD 40-2018, adopt filed 11/15/2018, effective 11/18/2018
APD 11-2018, temporary adopt filed 05/23/2018, effective 05/23/2018 through 11/18/2018

Or. Admin. R. 411-030-0080 Spousal Pay Program

(1) The Spousal Pay Program is one of the hourly service options under in-home services for those who qualify.

(2) ELIGIBILITY. An individual may be eligible for the Spousal Pay Program when all of the following conditions are met:

(a) The individual has met all eligibility requirements for in-home services as described in OAR 411-030-0040.

(b) The individual requires full assistance in at least four of the six ADLs described in OAR 411-015-0006 as determined by the assessment described in OAR chapter 411, division 015.

(A) Cachexia;

(B) Severe neuropathy;

(D) Persistent or reoccurring stage three or four wounds;

(E) Late stage cancer;

(F) Frequent and unpredictable seizures;

(G) Debilitating muscle spasms; or

(H) A spinal cord injury or similar disability with permanent impairment.

(d) The individual would otherwise require nursing facility services without Medicaid in-home services.

(e)The individual’s service needs exceed in both extent and duration the usual and customary services rendered by one spouse to another.

(f) The spouse demonstrates the capability and health to provide the services and actually provides the principal services, including the majority of service plan hours, for which payment has been authorized.

(g) The spouse meets all requirements for enrollment as a homecare worker in the Consumer-Employed Provider Program as described in OAR 411-031-0040.

(h) The spouse is not designated as a representative as described in OAR 411-030-0040.

(i) The Department has reviewed the request and approved program eligibility at enrollment and annually upon re-assessment.

(3) PAYMENTS.

(a) All payments must be prior authorized by the Department or the Department's designee.

(b) The hours authorized to the spousal pay provider in an individual's service plan must consist of one-half of the assessed hours for IADLs and all of the hours for specific ADLs based on the service needs of the individual.

(c) Except as described otherwise in subsection (d) of this section, spousal pay providers are paid at hourly homecare worker rates for ADLs and IADLs as defined in the rate schedule.

(d) Homecare workers who marry their consumer-employer are not paid under the spousal pay program. Service plans are based on the needs of the consumer. Hours assigned must reflect the service needs with no reduction in hours. The consumer does not need to meet the spousal pay eligibility criteria as described in section (3) of this rule. Hours authorized in CA/PS will be completed in the same manner as other in-home service plans, which include hourly or Independent Choices Program.

(e) Spousal pay providers may not claim payment from the Department for hours that the spousal pay provider did not work.

(f) A spousal pay HCW may not act as the consumer-employer.

(4) Spousal pay providers are subject to the provisions in OAR chapter 411, division 031 governing homecare workers enrolled in the Consumer-Employed Provider Program.

(5) Individuals receiving Spousal Pay Program services who have excess income must contribute to the cost of services pursuant to OAR 461-160-0610 and OAR 461-160-0620.

History

Statutory/Other Authority: ORS 409.050, 410.070 & 410.090
Statutes/Other Implemented: ORS 410.010, 410.020, 410.070, 411.802 & 411.803
APD 3-2018, amend filed 01/27/2018, effective 01/28/2018
APD 21-2017, temporary adopt filed 09/29/2017, effective 10/01/2017 through 01/27/2018
APD 18-2017(Temp), f. & cert. ef. 8-1-17 thru 1-27-18
APD 5-2016, f. 3-15-16, cert. ef. 3-18-16
APD 19-2015(Temp), f. & cert. ef. 9-21-15 thru 3-18-16
SPD 43-2013, f. 10-31-13, cert. ef. 11-1-13
SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13
SPD 4-2013, f. 3-25-13, cert. ef. 3-26-13
SPD 13-2012(Temp), f. & cert. ef. 9-26-12 thru 3-25-13
SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09
SPD 17-2007, f. 10-26-07, cert. ef. 10-28-07
SPD 3-2007(Temp), f. 4-11-07, cert. ef. 5-1-07 thru 10-28-07
SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06
SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04
SPD 15-2003, f. & cert. ef. 9-30-03
SPD 14-2003, f. & cert. ef. 7-31-03
SPD 2-2003(Temp), f. 1-31-03, cert. ef. 2-1-03 thru 7-30-03
SDSD 2-2000, f. 3-27-00, cert. ef. 4-1-00
SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93, Renumbered from 411-030-0027
SSD 3-1985, f. & cert. ef. 4-1-85
SSD 4-1984, f. 4-27-84, cert. ef. 5-1-84

Or. Admin. R. 411-030-0100 Independent Choices Program

(1) The Independent Choices Program (ICP) is an In-Home Services Program that empowers participants to self-direct their own service plans and purchase goods and services that enhance independence, dignity, choice, and well-being.

(2) The Department may not change the ICP Participation Agreement without posting the changes for public notice on the Department's website.

(3) INITIAL ELIGIBILITY REQUIREMENTS.

(a) To be eligible for the ICP an individual must:

(A) Meet all requirements for in-home services as described in these rules.

(B) Develop a service plan and budget to meet the needs identified in his or her CA/PS assessment.

(C) Sign the ICP Participation Agreement. Eligibility for the ICP cash benefit may not be backdated prior to the date that the signed ICP Participation Agreement is received in the local office.

(D) Have or be able to establish a checking account.

(E) Provide evidence of a stable living situation for the past three months.

(F) Demonstrate the ability to manage money as evidenced by timely and current utility and housing payments for the past three months or previous history before hospitalization, community-based care, or nursing facility stays.

(G) Demonstrate the ability to manage and honor the employee provider responsibilities as outlined in the ICP Participation Agreement.

(H) Complete enrollment with a Department contracted Fiscal Intermediary to provide the required Electronic Visit Verification (EVV) services when available and required by the department.

(I) Not have a history of misuse of the ICP cash benefit.

(b) If a participant is unable to direct and purchase their own in-home services, the participant must have a representative to act on the participant's behalf. The "representative" is the person assigned by the participant to act as the participant's decision maker in matters pertaining to the ICP service plan and service budget. A representative must:

(A) Complete a background check pursuant to OAR chapter 407, division 007 and receive a final fitness determination of approval; and

(B) Sign and adhere to the "ICP Representative Agreement" on behalf of the participant.

(c) If a participant is unable to manage the ICP cash payment accounting, tax, or payroll responsibilities and does not have a representative, the participant must arrange and purchase the ongoing services of a fiscal intermediary, such as an accountant, bookkeeper, or equivalent financial services.

(A) A participant, or the participant's representative who has met the eligibility criteria in subsection (b) of this section, may also choose to use a fiscal intermediary.

(B) The participant is responsible for any fees or payment to the fiscal intermediary and may allocate the fees or payment from discretionary or other non-ICP funds.

(4) DISENROLLMENT CRITERIA. Participants may be disenrolled from the ICP voluntarily or involuntarily. Participants who are disenrolled from the ICP may not reapply for six months. After the six-month disenrollment period, an individual may re-enroll and must meet all ICP eligibility requirements.

(a) VOLUNTARY DISENROLLMENT. Participants or representatives must provide notice to the Department of intent to discontinue participation in the ICP. The participant or the representative must meet with the Department to reconcile remaining ICP cash payment either within 30 calendar days of the date of disenrollment or before the termination date, whichever is sooner.

(b) INVOLUNTARY DISENROLLMENT. The participant may be involuntarily disenrolled from the ICP when the participant, representative, or employee provider does not adequately meet the participant's service needs or carry out any of the following ICP responsibilities:

(A) Non-payment of employee’s wages, as stated in the service budget.

(B) Failure to maintain the participant's health and well-being by obtaining personal care as evidenced by:

(i) Decline in functional status due to the failure to meet the participant’s needs; or

(ii) Substantiated complaints of self-neglect, neglect, or other abuse on the part of the employee provider or representative.

(D) Failure to comply with the legal or financial obligations as an employer.

(E) Failure to maintain a separate ICP checking account or commingling ICP cash benefit with other assets.

(F) Inability to manage the cash benefit as evidenced by two or more incidents of overdrafts of the participant's ICP checking account during the last cash benefit review period.

(G) Failure to maintain an individualized back-up plan (as part of the participant's service plan) resulting in a negative consequence.

(H) Failure to sign or follow the ICP Participation Agreement.

(I) Failure to designate a representative within 30 calendar days if a participant needs a representative, as determined by the Department, and does not have one.

(J) Failure to abide by all state and federal labor laws.

(K) Failure to meet requirement for EVV federal compliance.

(L) Failure to complete enrollment with the State contracted EVV provider.

(M) Failure to provide any required forms necessary to establish and maintain eligibility for ICP.

(N) The participant is required to request or demand that an ICP provider return any of the funds to the recipient when the services paid for were not delivered.

(O) Misuse of the ICP cash funds.

(5) INTERRUPTION OF SERVICES. The ICP cash benefit is terminated when a participant is absent from the home for longer than 30 calendar days due to illness or medical treatment. The cash benefit may resume upon the participant's return to the home, providing ICP eligibility criteria is met.

(6) SELECTION OF EMPLOYEE PROVIDERS.

(a) The participant or representative carries full responsibility for locating, screening, interviewing, hiring, training, paying, and terminating employee providers. The participant or representative must comply with Immigration and Customs Enforcement laws and policies.

(b) The participant or representative must assure the employee provider's ability to perform or assist with ADL and IADL service needs.

(c) Employee providers must complete a background check pursuant to OAR chapter 407, division 007. If a record of a potentially disqualifying crime is revealed, the participant or representative may employ the provider at the participant's or representative's discretion.

(d) A representative may not be an employee provider regardless of relationship to the participant.

(e) A participant's relative may be employed as an employee provider.

(7) CASH BENEFIT.

(a) The cash benefit is determined based on the participant's CA/PS assessment of need, service plan, level of assistance standards in OAR 411-030-0070, and natural supports.

(b) The cash benefit is calculated by adding the ADL task hours and the IADL task hours that the participant is eligible for as determined in the CA/PS assessment, at the rates according to the Department's rate schedule.

(c) The following services, which are approved by the case manager and paid for by the Department, are excluded from the ICP cash benefit:

(A) Long-term care community nursing.

(B) Contracted community transportation.

(D) Emergency response systems.

(d) The cash benefit includes the employer’s portion of required FICA, FUTA, and SUTA.

(e) The cash benefit is directly deposited into a participant's ICP designated checking account.

(f) The cash benefit may not be used to purchase services from an Adult Day Service provider or licensed care setting.

(g) The participant must establish an hourly rate of pay no less than the federal or state minimum wage, whichever is greater. This must be indicated on the required ICP Employee-Provider Information form for each employee-provider and may only pay the provider the agreed upon hourly rate of pay. The ICP cash benefit may not be used to pay an employee-provider a cash bonus.

(h) The participant must submit the required ICP Employee-Provider Information form each time an employee-provider:

(A) Is hired.

(B) Is fired.

(D) Is given an increase or a decrease in their agreed upon hourly rate of pay.

(E) Stops working for the participant for any reason not listed.

(8) SERVICE BUDGET.

(a) The service budget must identify the cash benefit, the discretionary and contingency funds if applicable, the reimbursement to an employee provider, and all other expenditures. The service budget may not exceed the total cash benefit including the sum of all costs listed on the ICP Budget Worksheet. The service budget must be initially approved by the Department or AAA case manager.

(b) The participant may amend the service budget as long as the amendments relate to meeting the participant's service needs and are within ICP program guidelines.

(c) A budget review to assure financial accountability and review service budget amendments must be completed at least every six months.

(9) CONTINGENCY FUND.

(a) The participant may establish a contingency fund in the service budget to purchase identified items that are not otherwise covered by Medicare, other Medicaid programs, other medical coverage, or the Supplemental Nutrition Assistance Program (SNAP) that substitute for personal assistance and allow for greater independence.

(b) The contingency fund must be approved by the case manager, identified in the service budget, and related to service plan needs.

(10) DISCRETIONARY FUND.

(a) The participant may establish a monthly discretionary fund in the service budget to purchase items that directly relate to the health, safety, and independence of the participant and are not otherwise covered under Medicaid home and community-based services or delineated in the monthly service budget.

(b) The maximum amount of discretionary funds may be up to 10 percent of the participant's cash benefit not including employee taxes.

(c) The discretionary fund must be approved by the case manager, identified in the service budget, and related to service plan needs.

(d) Discretionary funds must be used by the end of the month.

(11) ISSUING BENEFITS.

(a) The service plan and service budget must be prior approved by the case manager before the first ICP cash benefit is paid.

(b) A cash benefit is considered issued and received by the participant when the direct deposit is made to the participant's ICP bank account, or a benefit check is received by the participant.

(c) The cash benefit is exempt from resource calculations for other Department programs only while in the ICP bank account and not commingled with other personal funds.

(d) The cash benefit is not subject to assignment, transfer, garnishment, or levy as long as the cash benefit is identified as a program benefit and is separate from other money in the participant's possession.

(12) CASE MANAGER RESPONSIBILITIES.

(a) The case manager is responsible to review and authorize service plans and service budgets that meet the ICP program criteria.

(b) If a participant is disenrolled, the case manager must review eligibility for other Medicaid long term care and community-based service options and offer other alternatives if the participant is eligible.

(c) At least every six months, a Department or AAA case manager must complete a service budget review to assure financial accountability and review service budget amendments.

(d) The case manager must assist ICP participants in enrolling with a Department contracted Fiscal Intermediary to provide the required Electronic Visit Verification (EVV) services.

(e) The Department must offer additional information, counseling, training (if available), or assistance from an ICP Representative, and have documentation that these steps have been taken, declined, or ineffective before imposing section (4)(b) of this rule.

(13) HEARING RIGHTS. ICP participants have contested case hearing rights as described in OAR chapter 461, division 025.

History

Statutory/Other Authority: ORS 410.090
Statutes/Other Implemented: ORS 410.070
APD 10-2023, amend filed 06/29/2023, effective 07/01/2023
APD 32-2020, amend filed 07/23/2020, effective 08/01/2020
APD 3-2018, amend filed 01/27/2018, effective 01/28/2018
APD 21-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 01/27/2018
APD 5-2016, f. 3-15-16, cert. ef. 3-18-16
APD 19-2015(Temp), f. & cert. ef. 9-21-15 thru 3-18-16
SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09
SPD 13-2008, f. & cert. ef. 9-24-08
SPD 4-2008(Temp), f. & cert. ef. 4-1-08 thru 9-24-08

Division 31 HOMECARE WORKERS ENROLLED IN THE CONSUMER-EMPLOYED PROVIDER PROGRAM

Or. Admin. R. 411-031-0020 Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 031:

(1) "Abuse" means abuse as defined by OAR 411-020-0002 and OAR 419-100-0010.

(2) "Active" means a homecare worker who has:

(a) A valid and current provider number issued by APD;

(b) Worked and been paid with public funds in any of the past 12 months as a homecare worker;

(d) Met the orientation and training requirements of the homecare worker program as set forth in chapter 418, Division 020.

(3) "Activities of Daily Living (ADL)" means those personal, functional activities required by an individual for continued well-being, which are essential for the individual's health and safety. ADLs consist of bathing, cognition, dressing, eating, elimination, grooming, mobility, and personal hygiene as defined in OAR 411-015-0006.

(4) "Adult" means any person at least 18 years of age.

(5) "Adult Protective Services (APS)" means the APD program that responds to abuse and self-neglect of older adults and adults with physical disabilities as described in OAR chapter 411, division 020, including screening, triage or consultation, on-site assessment, investigation, intervention, documentation, and APS risk management.

(6) “Aging and People with Disabilities (APD)" means the program within the department primarily responsible for serving older adults and people with disabilities as defined in OAR chapter 411, division 015 and division 030.

(7) “APD central office” means the unit within the Department responsible for program and policy development and oversight. (OAR 411-027-0005(9)).

(8) "Area Agency on Aging (AAA)" means the Department designated agency charged with the responsibility to provide a comprehensive and coordinated system of services to older adults and adults with disabilities in a planning and service area. The terms AAA and Area Agency on Aging are inclusive of both Type A and Type B Area Agencies on Aging as defined in ORS 410.040 and described in ORS 410.210 to 410.300.

(9) "Base Pay Rate" means the hourly wage to be paid to homecare workers, without any differentials, established in the Collective Bargaining Agreement.

(10) "Case Manager (CM)" means an employee of the Department or Area Agency on Aging who assesses the service needs of an individual applying for services, determines eligibility, and offers service choices to the eligible individual. The case manager authorizes and implements an individual's service plan and monitors the services delivered as described in OAR chapter 411, division 028. CM may also include Diversion/Transition Coordinators.

(11) “Centers for Medicare and Medicaid Services (CMS)” means the agency within the U.S. Department of Health and Human Services (HHS) that administers Medicare, Medicaid, the Children's Health Insurance Program (CHIP), and the state and federal health insurance marketplaces.

(12) "Collective Bargaining Agreement" means the ratified Collective Bargaining Agreement between the Home Care Commission and the Service Employees International Union, Local 503. The Collective Bargaining Agreement is maintained on the Department's website: (https://www.oregon.gov/odhs/providers-partners/homecare-workforce/Pages/default.aspx). Printed copies may be obtained by writing to the Oregon Department of Human Services, Office of Aging and People with Disabilities, Attn: Rules Coordinator, 500 Summer Street NE, E-2, Salem, Oregon 97301.

(13) "Community Transportation" means non-medical transportation a homecare worker provides to a consumer-employer:

(a) Using the homecare worker’s personal vehicle; and

(b) Provided in accordance with the consumer-employer’s authorized service plan.

(14) "Consumer-Employed Provider Program" means the program wherein a qualified Homecare Worker is directly employed by a consumer to provide in-home services. In some aspects of the employer and employee relationship, the Department acts as an agent for the consumer-employer. These functions are clearly described in OAR 411-031-0040.

(15) "Consumer-Employer" means an individual eligible for in-home services receiving services through the Consumer-Employer Provider Program or Oregon Project Independence.

(16) "Consumer-Employer’s Representative" means an individual assigned by a consumer, or designated by a consumer's legal representative, to act as the consumer-employer as defined in chapter 411, division 30.

(17) "Continuing Education" means training approved by the Oregon Home Care Commission consistent with the requirements outlined in chapter 418, division 20 rules. Continuing education is separate from orientation or core training pursuant to chapter 418, division 20 rules.

(18) "Core Training" means the mandated training, or series of trainings, required for homecare workers pursuant to chapter 418, division 20 rules.

(19) "Credential" means a time-limited approval by DHS for an individual to provide services as a homecare worker, which includes a start date, designated by a service delivery office, no earlier than the individual's most recent background check and signed provider enrollment agreement, and an end date no later than 24 months from the homecare worker's most recent background check. This may also be referred to as an approved to work credential.

(20) "Department" means the Oregon Department of Human Services (ODHS), Aging and People with Disabilities.

(21) “Electronic Visit Verification (EVV)” means an interface that records the homecare worker’s start time, end time, and geolocation for a service delivered by a homecare worker in real time.

(22) "Enhanced Homecare Worker" means a homecare worker who is certified by the Oregon Home Care Commission to provide services and supports for consumers who require assistance with certain medically driven services and supports as assessed by the case manager.

(23) "Enrolled" means an individual has met the requirements in OAR 418-020-0020(1)(a) through (f) to become a Medicaid approved homecare worker and has been issued a Medicaid provider number.

(24) "Enrollment Agreement" means the program-specific document an individual must complete to be approved to provide services as a homecare worker.

(25) "Established Work Schedule" means the work schedule established by the consumer-employer to best meet the consumer-employer’s assessed needs and agreed to by the homecare worker employed by the consumer-employer. A homecare worker adheres to the established work schedule by arriving to work on time, requesting absence from work in a timely manner, and notifying the consumer-employer of unscheduled absences in a timely manner.

(26) "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.

(27) “Exceptional Homecare Worker” means a homecare worker who is certified by the Oregon Home Care Commission to provide services and supports for consumers who have been assessed as needing awake staff at least 16 hours a day and who have exceptional behavioral needs.

(28) "Exerts Undue Influence" means a homecare worker assumes or attempts to assume control of a consumer-employer’s decision-making, finances, home, property, medication, social interaction, or ability to communicate. Exertion of undue influence may exist whether or not a consumer-employer willfully allows the homecare worker to assume such control.

(29) "Fiscal Improprieties" means a homecare worker committed financial misconduct involving a consumer's money, property, or benefits.

(a) Fiscal improprieties include, but are not limited to:

(A) Financial exploitation, as defined in OAR 411-020-0002(1)(e);

(B) Borrowing money, property, or belongings from a consumer;

(D) Accepting or receiving items or services purchased for the homecare worker by a consumer-employer;

(E) Requesting or demanding payment from the consumer-employer for any reason;

(F) Forging a consumer-employers signature;

(G) Falsifying requests for payment which includes but is not limited to:

(i) Submitting incorrect start and end times of work; or

(ii) Submitting payment for days that were not worked.

(H) Claiming payment for hours not worked which includes but is not limited to:

(i) Claiming payment for specific start and stop times of work that were not actually worked; or

(ii) Claiming payment for a total number of hours that is more than the hours actually worked.

(I) Claiming to deliver services to a consumer-employer during a time also claimed for travel;

(J) On two or more occasions, working or claiming to work hours not prior authorized on a consumer-employer's service plan or working or claiming to work hours over the maximum authorized weekly number of hours allowed for the homecare worker;

(K) Claiming hours worked for a consumer-employer while taking time off or when another homecare worker is paid for providing services;

(L) Requesting or demanding payment for services from either the Department or the consumer-employer for more than the amount paid following the submission and processing of a properly completed claim;

(M) One or more intentional acts of dishonesty for purposes of unearned financial gain; and

(N) Creating an overpayment whether intentionally or unintentionally and not paying it back within 6 months.

(b) Fiscal improprieties do not include the exchange of money, gifts, or property between a homecare worker and a consumer-employer with whom the homecare worker is related unless an allegation of financial exploitation, as defined in OAR 411-020-0002 or OAR 419-100-0010, has been substantiated based on an adult protective services investigation.

(30) “Healthier Oregon” means an OHP Plus equivalent benefit (410-120-1210(4)(h)) for individuals described in 461-135-1080.

(31) "Homecare Worker" means a provider, as described in OAR 411-031-0040, that is directly employed by a consumer to provide services to the consumer.

(a) The term homecare worker includes:

(A) A consumer-employed provider of a Medicaid in-home services recipient including those eligible for the Spousal Pay services;

(B) A consumer-employed provider of an Oregon Project Independence Program service recipient;

(D) A consumer-employed provider that provides state plan personal care services.

(b) The term homecare worker does not include an Independent Choices Program provider or a personal support worker enrolled through Developmental Disabilities Services or the OHA Health Systems Division, Behavioral Health.

(32) "Individual" means an adult applying for or eligible for services per OAR 411-015-0100.

(33) "In-Home Services" means those services that meet an individual’s assessed need related to activities of daily living and instrumental activities of daily living when the individual resides in a living arrangement that meets the criteria described in OAR 411-030-0033.

(34) "Instrumental Activities of Daily Living (IADL)" means those activities, other than activities of daily living, required by an individual to continue independent living. The definitions and parameters for assessing needs in IADL are identified in OAR 411-015-0007.

(35) "Local Office" means the local service staff of the Department or Area Agency on Aging (Type A and B).

(36) "Maintain a Drug-Free Workplace" means the Homecare Worker has a duty to:

(a) Be free of the influence of alcohol, inhalants, prescription drugs, or other drugs, including over-the-counter medications, while responsible for the care of a consumer-employer, while in the consumer's home or care setting, or while transporting the consumer; or

(b) Not manufacture, possess, sell, offer to sell, trade, or use illegal drugs while providing authorized services to a consumer-employer or while in the consumer-employers home or care setting.

(37) “Maintain Consumer-Employer Confidentiality” means the homecare worker’s responsibility to not disclose personally identifiable information about a consumer- employer unless otherwise authorized by law.

(38) "Mandatory Abuse Reporter" for the purpose of these rules, means any public or private official who is required by state abuse statutes to report alleged abuse. This includes per ORS 419B.005(s) Personal Support Worker and (t) Homecare Workers.

(39) “Medicaid” means the program that provides health care coverage and long-term services to low-income individuals. The program is jointly funded by the federal government and states and administered by the State. For purpose of these rules, Medicaid means the state and federal program that provides the funding for long-term services and supports for qualified individuals including those through the Consumer-Employer program.

(40) "Medically-Driven Services and Supports" means medical or behavioral treatments, assessed by a case manager, and included in a consumer-employers’ service plan, which a consumer-employer requires in addition to assessed ADL and IADL services.

(41) "Natural Supports" or "Natural Support System" means resources and supports (e.g., relatives, friends, neighbors, significant others, roommates, or the community) who are willing to voluntarily provide services to an individual without the expectation of compensation. Natural supports are identified in collaboration with the individual and the potential natural support. The natural support is required to have the skills, knowledge, and ability to provide the needed services and supports.

(42) "Non-Motorized Transportation" means traveling on foot, riding a bicycle, or other means of moving between two locations that do not rely on an external energy source.

(43) "Office of Administrative Hearings" means the Office described in ORS 183.605 - 183.690 established within the Employment Department to conduct contested case proceedings, and other such duties, on behalf of designated state agencies.

(44) “Office of Inspector General (OIG)” means the office within the United States Department of Health and Human Services (HHS) that is charged with identifying and combating waste, fraud, and abuse.

(45) “Oregon Home Care Commission (OHCC)” means the commission that was established and operated pursuant to Article XV, Section 11, of the Oregon Constitution, and ORS 410.595 - 410.625.

(46) "Oregon Project Independence" means the program of in-home services described in OAR chapter 411, division 032.

(47) "Person-Centered Service Plan (Service Plan)" means the written details of the supports, desired outcomes, activities, and resources required for an individual to achieve and maintain personal goals, health, and safety. The plan is written by the case manager with input and approval from the individual.

(48) "Personal Support Worker" means the worker defined in OAR 411-375-0010.

(49) "Preponderance of the Evidence" means that the factfinder is persuaded that the proponent of the fact has demonstrated that the fact asserted is more likely true than not.

(50) "Provider" means the person who renders the services.

(51) "Provide Services as Required" means a homecare worker provides services to a consumer-employer as described in the consumer-employers service plan.

(52) "Provider Enrollment" means the application and agreement between the Department and a qualified Medicaid provider to deliver services to a Medicaid eligible individual for compensation. The Provider Enrollment agreement must be renewed at the same time the provider’s credentials are renewed.

(53) "Provider Number" means an identifying number issued to each homecare worker who is enrolled as a provider through the Department.

(54) "Relative" means a person who is related to the individual by blood, marriage, or adoption.

(55) "Restricted Homecare Worker" means the Department or Area Agency on Aging has placed restrictions on a homecare worker's provider enrollment as described in OAR 411-031-0040.

(56) “Service Delivery Office” means the Department or Area Agency on Aging that coordinates the consumer’s service plan.

(57) "Service Need" means the assistance an individual requires from another person for those tasks, functions or activities identified in OAR 411-015-0006 and 411-015-0007.

(58) "Service Period" means two specific consecutive workweeks, defined by the Department, for a total of 14 calendar days.

(59) "Shift Services" means those services provided by awake homecare workers, Independent Choices Program employee providers, or contracted in-home care agency provider to an individual who is authorized to receive 16 hours of services during a 24-hour work period.

(60) "Skills, Knowledge, and Ability to Adequately or Safely Perform the Required Work" means a homecare worker possesses and demonstrates the physical, mental, organizational, and emotional skills or abilities necessary to perform services which safely and adequately meet the needs of consumers as well as the homecare worker provider enrollment standards.

(61) "Spouse" means an individual who is legally married to the individual.

(62) “Substantiated for Committing Abuse” means a homecare worker was found to have committed abuse as defined in OAR chapter 411, division 020; OAR chapter 419, division 100; and ORS 419B.005.

(63) "Tasks" means distinct parts of an activity of daily living as defined in OAR chapter 411, division 015.

(64) "Termination" means a homecare worker’s Department issued provider number and enrollment has been terminated in accordance with OAR 411-031-0050.

(65) "These Rules" mean the rules in OAR chapter 411, division 031.

(66) "Time Off" means time where a homecare worker is not providing services to a consumer during a normally scheduled work time.

(67) "Unacceptable Background Check" means a check that produces information related to a person's background that precludes the person from being a homecare worker for the following reasons:

(a) The person applying to be a homecare worker has been disqualified under OAR 407-007-0275;

(b) A homecare worker enrolled in the Consumer-Employed Provider Program for the first time, or after any break in enrollment, after July 28, 2009 has been disqualified under OAR 407-007-0275; or

(c) A background check and fitness determination has been conducted resulting in a "denied" status, as defined in OAR 407-007-0210.

(68) "Unwelcome Nuisance to the Workplace" means creating disruption in the individual’s home or life and includes, but is not limited to, unwelcome guests, children or pets invited by a homecare worker into a consumer-employers home, unwelcome behaviors such as smoking or vaping, or unwelcome items resulting in the consumer-employers dissatisfaction or a homecare worker's inattention to the consumer's required service needs.

(69) "Workday" means 12:00 a.m. through 11:59 p.m.

(70) "Workweek" means 12:00 a.m. on Sunday through 11:59 p.m. on Saturday.

History

Statutory/Other Authority: ORS 409.050, 410.070, 410.090 & 42 CFR 441.505
Statutes/Other Implemented: 410.070, ORS 410.010, 410.020 & 42 CFR 441.505
APD 4-2026, minor correction filed 04/13/2026, effective 04/13/2026
APD 1-2025, minor correction filed 01/15/2025, effective 01/15/2025
APD 3-2023, amend filed 03/01/2023, effective 03/01/2023
APD 27-2018, amend filed 07/31/2018, effective 07/31/2018
APD 1-2018, temporary amend filed 01/26/2018, effective 02/01/2018 through 07/30/2018
APD 31-2016, f. 8-24-16, cert. ef. 8-28-16
APD 6-2016(Temp), f. & cert. ef. 3-23-16 thru 8-28-16
APD 2-2016(Temp), f. & cert. ef. 3-2-16 thru 8-28-16
SPD 47-2013, f. 12-13-13, cert. ef. 12-15-13
SDP 18-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 4-2013, f. 3-25-13, cert. ef. 3-26-13
SPD 13-2012(Temp), f. & cert. ef. 9-26-12 thru 3-25-13
SPD 26-2010, f. 11-29-10, cert. ef. 12-1-10
SPD 4-2010(Temp), f. 6-23-10, cert. ef. 7-1-10 thru 12-28-10
SPD 3-2010, f. 5-26-10, cert. ef. 5-30-10
SPD 4-2007, f. 4-12-07, cert. ef. 4-17-07
SPD 28-2006(Temp), f. 10-18-06, cert. ef. 10-23-06 thru 4-20-07
SPD 15-2006, f. 4-26-06, cert. ef. 5-1-06
SPD 15-2005(Temp), f. & cert. ef. 11-16-05 thru 5-15-06
SPD 10-2005, f. & cert. ef. 7-1-05
SPD 40-2004(Temp), f. 12-30-04, cert. ef. 1-1-05 thru 6-30-05
SPD 17-2004, f. 5-28-04, cert.ef. 6-1-04

Or. Admin. R. 411-031-0030 Purpose

The rules in OAR chapter 411, division 031 establish the standards and procedures governing homecare workers and the fiscal services provided on behalf of the Department or AAA consumer-employers to homecare workers enrolled in the Consumer-Employed Provider Program. Homecare workers provide Medicaid, Oregon Project Independence and Healthier Oregon funded in-home services to the Department or AAA consumers. In-home services support the ability of the consumer-employers to continue to live in their own homes.

History

Statutory/Other Authority: ORS 409.050, 410.070 & 410.090
Statutes/Other Implemented: ORS 410.010, 410.020 & 410.070
APD 3-2023, amend filed 03/01/2023, effective 03/01/2023
APD 31-2016, f. 8-24-16, cert. ef. 8-28-16
SPD 4-2013, f. 3-25-13, cert. ef. 3-26-13
SPD 3-2010, f. 5-26-10, cert. ef. 5-30-10
SPD 17-2004, f. 5-28-04, cert.ef. 6-1-04

Or. Admin. R. 411-031-0040 Temporary rule language in effect until 12/01/2026. Consumer-Employed Provider Program

The Consumer-Employed Provider Program contains systems and payment structure for consumers to employ care providers to meet their assessed ADL and IADL needs. The structure assumes a provider is required for ADLs and IADLs during specific periods of time. Except as indicated, the criteria in this rule apply to workers called Homecare Workers:

(1) EMPLOYMENT RELATIONSHIP. The relationship between a provider and a consumer-employer is that of employee and employer. A homecare worker is not permitted to be a representative (see OAR 411-031-0020) or make service plan related decisions for a consumer-employer for whom the homecare worker currently provides paid services.

(2) HOMECARE WORKER JOB DESCRIPTIONS. A consumer-employer or consumer-employer’s representative is responsible for creating and maintaining a job description for a potential provider consistent with the services authorized by the consumer's case manager. Only service needs and tasks authorized by the Department shall be paid. The Department does not pay for natural support.

(3) HOMECARE WORKER BENEFITS. Benefits are determined and offered by an outside trust. The Department does not provide benefits directly to homecare workers. Homecare workers are not state employees.

(4) CONSUMER-EMPLOYER ABSENCES. Services from a homecare worker must be prior authorized when a consumer-employer is hospitalized. Services from a homecare worker are not authorized when a consumer-employer is receiving treatment in mental health, substance abuse treatment facility or any licensed 24-hour care setting. Services from a homecare worker are not authorized for payment when a consumer-employer is incarcerated.

(5) SELECTION OF HOMECARE WORKER. A consumer-employer or consumer-employer's representative carries primary responsibility for locating, interviewing, screening, and hiring their own employees. Subject to Case Manager approval, the consumer-employer or consumer-employer's representative has the right to employ any person who successfully meets the provider enrollment standards described in section (8) of this rule. The Department or AAA office determines whether a potential homecare worker may be enrolled and paid for by the Department.

(6) EMPLOYMENT AGREEMENT. A consumer-employer or consumer-employer's representative establishes an employer-employee relationship with a person at any time after the homecare workers Employment Eligibility Verification form (Form I-9) from the Department of Homeland Security, U.S. Citizenship and Immigration Services have been completed, identification photocopied, and the homecare worker has received authorization to work from the Department. A homecare worker cannot start work and will not receive payment for services performed until after the Department has verified that a person meets the provider enrollment standards described in section (8) of this rule, has an active provider enrollment number and the Department has notified both the employer and homecare worker in writing that payment by the Department is authorized.

(7) TERMS OF EMPLOYMENT. A consumer-employer or consumer-employer's representative must establish terms of an employment relationship with an employee at the time of hire. The terms of employment may include work scheduling, absence reporting, and the specific tasks authorized on the employee’s task list. Termination of the employment relationship and the grounds for termination of employment are determined by a consumer-employer or consumer-employer's representative. A consumer-employer or consumer-employer's representative has the right to terminate an employment relationship with a homecare worker at any time and for any reason.

(8) PROVIDER ENROLLMENT.

(a) ENROLLMENT STANDARDS. A homecare worker must meet all of the following standards to be enrolled with the Department's Consumer-Employed Provider Program and may not work, or claim payment for service unless they meet the following criteria:

(A) Agree to maintain a drug-free workplace;

(B) Complete the background check process described in OAR 407-007-0200 to 407-007-0370 with an outcome of approved or approved with restrictions;

(D) Possess current U.S. employment authorization that has been verified by the Department or AAA;

(E) Be 18 years of age or older;

(F) Complete an orientation and pass a competency evaluation per OAR 418-020-0035(6);

(G) Complete Core Training and pass a competency evaluation per OAR 418-020-0035(6);

(H) Complete continuing education training requirements as established by the Oregon Home Care Commission and participate in trainings by deadlines established per OAR 418-020-0035;

(I) Must be free of CMS or OIG exclusions;

(J) Maintain an active Provider Enrollment Application and Agreement;

(K) Is not an employee of Aging and People with Disabilities, Area Agency on Aging, the Office of Administrative Hearings, Oregon Health Authority Health Systems Division, Oregon Department of Human Services Background Check Unit, Oregon Eligibility Partnership (OEP), Oregon Department of Human Services Self Sufficiency Program (SSP), the Oregon Home Care Commission, or a provider to a participant of the independent choices program, as defined in OAR 411-030-0100.

(L) Have a social security number or tax identification number that matches the homecare worker's legal name, as verified by the Internal Revenue Service or Social Security Administration.

(b) DENIAL OF INITITAL APPLICATION OF PROVIDER ENROLLMENT. The Department or AAA may deny an application for provider enrollment in the Consumer-Employed Provider Program when the applicant --

(A) Has violated the requirement to maintain a drug-free workplace;

(B) Has an unacceptable background check;

(D) Was substantiated for committing any form of abuse to include but not limited to child abuse, elder abuse and abuse of a person with a disability;

(E) Commits fiscal improprieties;

(F) Fails to provide the required services in a consumer-employers service plan;

(G) Lacks the ability or willingness to maintain consumer-employer confidentiality;

(H) Introduces an unwelcome nuisance to the workplace;

(I) Fails to adhere to an established work schedule;

(J) Has been sanctioned or convicted of a criminal offense related to a public assistance program;

(K) Fails to perform the duties of a mandatory reporter per ORS 419B.005(s);

(L) Has been excluded by the Health and Human Services, Office of Inspector General, from participation in Medicaid, Medicare, and all other Federal Health Care Programs;

(M) Fails to provide a tax identification number or social security number that matches the homecare worker's legal name, as verified by the Internal Revenue Service or Social Security Administration;

(N) Exerts undue influence over a consumer-employer;

(O) Previously had a provider number terminated by the Oregon Department of Human Services; Oregon Health Authority or similar agencies of another state within the United States;

(P) Has been excluded by Centers for Medicaid Services to work as a Medicaid provider;

(Q) Fails to meet the orientation and competency evaluation requirements described in chapter 418, division 20 rules; or

(R) Fails to meet the Provider Enrollment Standards in OAR 411-031-0040(8)(a)(A-L).

(c) INACTIVATED PROVIDER. An Inactivated homecare worker must re-apply to become activated as a homecare worker. This new application means that the homecare worker must complete all initial steps to become a homecare worker. A homecare worker may become inactive when –

(A) The homecare worker has not provided any paid services to any APD or AAA consumer in the last 12 months;

(B) More than three years have passed since the signature date on the most recent Provider Enrollment Application and Agreement for a homecare worker; or

(d) BACKGROUND CHECKS.

(A) When a homecare worker is approved without restrictions following a background check fitness determination, the approval must meet the homecare worker provider enrollment requirement statewide whether the qualified entity is a state-operated Department office or an AAA operated by a county, council of governments, or a non-profit organization.

(B) Background check approval is effective for three years unless:

(i) One of the provisions in section (E) of this rule applies; or

(ii) Approval has ended because the Department has inactivated or terminated a homecare worker’s provider enrollment for one or more reasons described in this rule or OAR 411-031-0050.

(C) If an individual has a valid approved background check for another Department provider type as outlined in ORS 443.004(1), (2), or (3), and is seeking to work in any of the care settings listed in these same sections, then the individual’s existing background check is portable to the new employer or care setting and the Department will not require a new criminal records check to be completed solely because the individual is moving between these employers or care settings.

(D) The approval of a background check application for an individual to this section lasts for three years, effective as of the completion of the individual’s first or renewing background check approval after the implementation of ORS 443.004(2)(b) on June 5, 2026.

(E) A criminal records check, as part of a new background check, may be completed more often only if the Department:

(i) Receives credible evidence of a new criminal conviction;

(ii) Receives credible evidence to substantiate a complaint of abuse or neglect;

(iii) Is required by federal law to conduct more frequent criminal records check;

(iv) Is notified that a subject individual has changed positions or duties for which there are different criminal records check requirements; or

(v) Determines, under criteria set forth in rules adopted by the department or the authority, that it would be burdensome for a subject individual to wait for a new criminal records check.

(I) The Department receives credible evidence of a change in circumstances that could positively impact a previous fitness determination;

(II) The Provider is seeking certification, licensure, or some other qualification associated with a position that requires a background check;

(III) The provider needs a recheck for recredentialing which must be submitted and completed before or by the 36-month expiration date of the background check approval.

(F) Homecare workers must inform the Department and their consumer-employer within 14 days of being arrested, cited for, or convicted of any potentially disqualifying crimes under OAR 125-007-0270 and potentially disqualifying conditions under OAR 407-007-0290.

(e) RESTRICTED PROVIDER ENROLLMENT.

(A) The Department or AAA may enroll an applicant as a restricted homecare worker. A restricted homecare worker may only provide services to one specific consumer.

(i) Unless disqualified under OAR 407-007-0275, the Department or AAA may approve a homecare worker with a prior criminal record under a restricted enrollment to provide services to a specific consumer who is a family member, neighbor, or friend after conducting a weighing test as described in OAR 407-007-0200 to 407-007-0370.

(ii) Based on an applicant’s lack of skills, knowledge, or abilities, the Department or AAA may approve the applicant as a restricted homecare worker to provide services to a specific consumer who is a family member, neighbor, or friend.

(B) To remove restricted homecare worker status and be designated as a career homecare worker, the restricted homecare worker must complete a new application and background check and be approved by the Department or AAA.

(f) ENHANCED HOMECARE WORKER ELIGIBILITY. A homecare worker who is certified by the Oregon Home Care Commission to meet the enhanced homecare worker criteria in OAR 411-031-0020(22) may receive payment at the enhanced hourly rate for providing ADL and IADL services as set forth in the Collective Bargaining Agreement when:

(A) The homecare worker is employed by a consumer-employer whose service plan indicates the need for medically driven services and supports;

(B) The consumer-employer’s service plan specifically authorizes the homecare worker to provide the medically driven services and supports;

(D) The homecare worker has successfully completed training requirements for enhanced homecare worker certification as outlined in the Collective Bargaining Agreement and OAR 418-020-0030(3)(c).

(g) EFFECTIVE DATE OF ENHANCED HOMECARE WORKER RATE PAYMENT. A homecare worker may receive the enhanced rate the beginning of the pay cycle after the Oregon Home Care Commission and Oregon Department of Human Services ensures all criteria is met which includes:

(A) Meeting the enhanced homecare worker certification criteria identified in section (8)(f)(A) through (D) of this rule, and

(B) Working for a consumer-employer who requires medically driven services and supports.

(h) EXCEPTIONAL HOMECARE WORKER ELIGIBLITY. A homecare worker who is certified by the Oregon Home Care Commission to meet the exceptional homecare worker criteria in OAR 411-031-0020(27) may receive payment at the exceptional hourly rate for providing ADL and IADL services as set forth in the Collective Bargaining Agreement when:

(A) The homecare worker is employed by a consumer-employer whose service plan indicates the need for services and supports defined in service rules, OAR 411-015-0006 and 0007;

(B) The consumer-employer’s service plan specifically authorizes the homecare worker to provide the necessary services and supports;

(D) The homecare worker has successfully completed training requirements for exceptional homecare worker certification as outlined in the Collective Bargaining Agreement and OAR 418-020-0030(3)(c).

(i) EFFECTIVE DATE OF EXCEPTIONAL HOMECARE WORKER RATE PAYMENT. A homecare worker may receive the exceptional rate at the beginning of the pay cycle after the Oregon Home Care Commission and Oregon Department of Human Services ensures all criteria is met which includes:

(A) Meeting the exceptional homecare worker certification criteria identified in section (8)(f)(A) through (D) of this rule; and

(B) Working for a consumer-employer who requires the defined services and supports.

(9) TIME OFF.

(a) A homecare worker requesting time off must make a request to the consumer-employer or consumer-employer's representative.

(b) The decision to approve or deny a homecare worker's request to schedule time off is made by the homecare worker's consumer-employer or the consumer-employer's representative.

(c) A homecare worker who has been approved to take time off by the consumer-employer or consumer-employer's representative must notify the consumer-employer's APD or AAA case manager before taking time off.

(d) When a homecare worker schedules time off, the APD or AAA office will make reductions to the homecare worker’s authorized hours commensurate with the number of hours the homecare worker plans to take as scheduled time off.

(e) It is the exclusive responsibility of the consumer-employer or their representative to ensure that services are provided during the homecare worker’s scheduled time off.

(f) Under no circumstances will a homecare worker be required to secure an alternative homecare worker or ensure that services are provided to a consumer-employer during the homecare worker’s scheduled time off.

(g) When a consumer employer or consumer-employer representative finds another homecare worker to provide services to cover another homecare worker’s time off, the consumer-employer or the consumer-employer representative must contact the consumer-employer's APD or AAA case manager to arrange for the authorization prior to the homecare worker providing services for the scheduled hours. An alternative homecare worker should not work without authorization from the case manager.

(10) FISCAL ACCOUNTABILITY.

(a) DIRECT SERVICE PAYMENTS. The Department makes payment to a homecare worker on behalf of a consumer-employer for all in-home services. The payment is considered full payment for the services rendered. A homecare worker must not demand nor receive additional payment for any services from a consumer-employer or any other source. Additional payment to homecare workers for the same services covered by the Department is prohibited. Homecare workers will use Electronic Visit Verification (EVV) through the Oregon Provider Time Capture Direct Care Innovations (OR PTC DCI) system for real time recording of hours and tasks provided to a consumer-employer during the workday, workweek and service periods.

(b) TIMELY SUBMISSION OF CLAIMS. In accordance with federal Medicaid regulations and the Collective Bargaining Agreement, all claims for services must be submitted within 365 days from the first date of service listed on the claim. All claims must be compliant with EVV for real time recording of hours worked during the workday, workweek and service periods.

(A) OR PTC DCI Mobile Application

(B) OR PTC DCI Landline

(d) If a homecare worker needs to edit a time entry after it has been entered, the time entry is no longer considered EVV compliant.

(e) Entering time into the OR PTC DCI web portal, without a FOB token/code is not considered EVV compliant.

(f) ANCILLARY CONTRIBUTIONS.

(A) FEDERAL INSURANCE CONTRIBUTIONS ACT (FICA). Acting on behalf of a consumer-employer, the Department applies applicable FICA regulations and --

(i) Withholds a homecare worker-employee contribution from payments; and

(ii) Submits the consumer-employer contribution and the amounts withheld from the homecare worker-employee to the Social Security Administration.

(B) BENEFIT FUND ASSESSMENT. The Workers' Benefit Fund pays for programs that provide direct benefits to injured workers and the workers' beneficiaries and assist employers in helping injured workers return to work. The Department of Consumer and Business Services sets the Workers' Benefit Fund assessment rate for each calendar year. The Department 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 consumer-employer, the Department --

(i) Deducts a homecare worker-employees' share of the Benefit Fund assessment rate for each hour or partial hour worked by each paid homecare worker;

(ii) Collects the consumer-employer's share of the Benefit Fund assessment for each hour or partial hour of paid services received; and

(iii) Submits the consumer-employer's and homecare worker-employee's contributions to the Workers' Benefit Fund.

(g) ANCILLARY WITHHOLDINGS. For the purpose of this subsection of the rule, "labor organization" means any organization that represents employees in employment relations.

(A) The Department deducts a specified amount from the homecare worker-employee's monthly salary or wages for payment to a labor organization.

(B) In order to receive payment, a labor organization must enter into a written agreement with the Department to pay the actual administrative costs of the deductions.

(h) STATE AND FEDERAL INCOME TAX WITHHOLDING.

(A) The Department withholds state and federal income taxes on all payments to homecare workers, as indicated in the Collective Bargaining Agreement.

(B) A homecare worker must complete and return a current Internal Revenue Service W-4 form to the Department or AAA's local office. The Department applies standard income tax withholding practices in accordance with 26 CFR 31.

(11) REIMBURSEMENT FOR COMMUNITY TRANSPORTATION.

(a) A homecare worker is reimbursed at the mileage reimbursement rate established in the Collective Bargaining Agreement when the homecare worker uses his or her own personal motor vehicle for transportation that is prior-authorized in a consumer-employer’s service plan. If unscheduled transportation needs arise during non-office hours, the homecare worker must explain the need for the transportation to the consumer-employer's case manager, and the transportation must be approved by the consumer-employer's case manager before reimbursement. The homecare worker must possess a valid license to drive and current, valid motor vehicle insurance and meet all homecare worker duties under Article 15 Section 6 of the Collective Bargaining Agreement.

(b) Medical transportation through the Oregon Health Authority (OHA), volunteer transportation, and other transportation services included in a consumer-employer’s service plan is considered a prior resource.

(c) The Department is not responsible for vehicle damage or personal injury sustained when a homecare worker uses his or her own personal motor vehicle for OHA or community transportation, except as may be covered by workers' compensation.

(d) Except as set forth in (a) of this section, homecare workers shall not receive any mileage reimbursement.

(e) Time performing community transportation services are part of the authorized hours and must be claimed in the EVV system.

(12) PAYMENT FOR TRAVEL TIME.

(a) A homecare worker who travels directly between the home or care setting of one consumer-employer and the home or care setting of another consumer-employer will be paid at the base pay rate for the time spent traveling directly between the homes or care settings. For the purposes of this rule, "Travel Directly" means a homecare worker's travel from one consumer-employer's home or care setting to another consumer-employer's home or care setting is not interrupted other than brief stops to:

(A) Purchase fuel for the vehicle being used for the travel;

(B) Use a restroom; or

(b) The total time spent traveling directly between all of a homecare worker’s consumer-employers may not exceed 10 percent of the total work time the homecare worker claims during a pay period.

(c) When a homecare worker uses the homecare worker’s own vehicle to travel directly between two consumer-employers the Department shall determine the time needed for a homecare worker to travel directly based on a time estimate published in a common, publicly-available, web-based mapping program. The homecare worker must possess and provide proof of a valid license to drive and current, valid motor vehicle insurance.

(d) When a homecare worker uses public transportation to travel directly between two consumer-employers, payment for travel time shall be based on the homecare workers actual time in transit or the public transportation providers’ scheduled pick-up and drop-off times for the stops nearest the consumer-employers’ homes or care settings.

(e) When a homecare worker uses non-motorized transportation to travel directly, payment for travel time shall be based on a time estimate published in a common, publicly-available, web-based mapping program.

(f) Claims for travel time exceeding the Department's time estimates may require a written explanation from the homecare worker before the Department pays the claim. Time claimed in excess of the Department's time estimate may not be paid.

(g) A homecare worker shall not be paid for time spent in transit to or from the homecare worker’s own residence.

(h) The Department is not responsible for vehicle damage or personal injury sustained when a homecare worker uses his or her own personal motor vehicle to travel between the homes or care settings of consumer-employers, except as may be covered by workers' compensation.

(i) Homecare workers shall not receive any mileage reimbursement for traveling between the homes or care settings of consumer-employers.

(13) WORKERS’ COMPENSATION AND UNEMPLOYMENT INSURANCE. Workers' compensation and unemployment are available to eligible homecare workers as described in the Collective Bargaining Agreement. In order to receive homecare worker workers' compensation, a consumer-employer must consent and provide written authorization to the Department for the provision of workers' compensation insurance for the consumer-employer's employee.

(14) OVERPAYMENTS. An overpayment is any payment made to a homecare worker by the Department that is more than the homecare worker is authorized to receive.

(a) Overpayments are categorized as follows:

(A) ADMINISTRATIVE ERROR OVERPAYMENT. The Department failed to authorize, compute, or process the correct amount of in-home service hours or wage rate.

(B) PROVIDER ERROR OVERPAYMENT. The Department overpays the homecare worker due to a misunderstanding or unintentional error.

(C) FRAUD OVERPAYMENT. For this rule, "Fraud" means taking actions that may result in 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 homecare worker was not entitled to and any act that constitutes fraud under applicable federal or state law (including 42 CFR 455.2). The Department determines, based on a preponderance of the evidence, when fraud has resulted in an overpayment. The Department of Justice, Medicaid Fraud Control Unit determines when to pursue a Medicaid fraud allegation for prosecution.

(b) Overpayments 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 or provider error overpayments are collected at no more than 5 percent of the homecare worker's gross wages.

(D) When a person is no longer employed as a homecare worker, any remaining overpayment is deducted from the person's final check. The person is responsible for repaying an overpayment in full when the person's final check is insufficient to cover the remaining overpayment.

History

Statutory/Other Authority: ORS 409.050, 410.070 & 410.090
Statutes/Other Implemented: ORS 410.010, 410.020, 410.070, 410.612 & 410.614
APD 10-2026, temporary amend filed 06/03/2026, effective 06/05/2026 through 12/01/2026
APD 4-2024, amend filed 01/29/2024, effective 02/01/2024
APD 13-2023, temporary amend filed 08/22/2023, effective 08/25/2023 through 02/20/2024
APD 3-2023, amend filed 03/01/2023, effective 03/01/2023
APD 27-2018, amend filed 07/31/2018, effective 07/31/2018
APD 6-2018, temporary amend filed 02/28/2018, effective 02/28/2018 through 07/30/2018
APD 1-2018, temporary amend filed 01/26/2018, effective 02/01/2018 through 07/30/2018
APD 31-2016, f. 8-24-16, cert. ef. 8-28-16
APD 6-2016(Temp), f. & cert. ef. 3-23-16 thru 8-28-16
APD 2-2016(Temp), f. & cert. ef. 3-2-16 thru 8-28-16
SPD 47-2013, f. 12-13-13, cert. ef. 12-15-13
SDP 18-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 4-2013, f. 3-25-13, cert. ef. 3-26-13
SPD 13-2012(Temp), f. & cert. ef. 9-26-12 thru 3-25-13
SPD 26-2010, f. 11-29-10, cert. ef. 12-1-10
SPD 4-2010(Temp), f. 6-23-10, cert. ef. 7-1-10 thru 12-28-10
SPD 3-2010, f. 5-26-10, cert. ef. 5-30-10
SPD 16-2009(Temp), f. & cert. ef. 12-1-09 thru 5-30-10
SPD 6-2008, f. 4-28-08, cert. ef. 4-29-08
SPD 18-2007(Temp), f. 10-30-07, cert. ef. 11-1-07 thru 4-29-08
SPD 4-2007, f. 4-12-07, cert. ef. 4-17-07
SPD 28-2006(Temp), f. 10-18-06, cert. ef. 10-23-06 thru 4-20-07
SPD 15-2006, f. 4-26-06, cert. ef. 5-1-06
SPD 10-2005, f. & cert. ef. 7-1-05
SPD 40-2004(Temp), f. 12-30-04, cert. ef. 1-1-05 thru 6-30-05
SPD 17-2004, f. 5-28-04, cert.ef. 6-1-04

Or. Admin. R. 411-031-0050 Termination, Administrative Review, and Hearing Rights

(1) EXCLUSIONS TO APPEAL AND HEARING RIGHTS. The following are excluded from the administrative review and administrative hearing rights process described in this rule:

(a) Homecare workers who failed to complete a background recheck;

(b) Homecare workers who are not currently providing services to any consumers and whose provider enrollment is inactivated while an Adult Protective Services investigation is being completed;

(c) Homecare workers who have been excluded by Health and Human Services, Office of Inspector General, from participation in Medicaid, Medicare, or any other federal programs;

(d) Terminations or renewal denials based on a background check. The homecare worker has the right to a hearing in accordance with OAR 407-007-0200 to 407-007-0370. Homecare workers receive notices from the background check unit and will not receive notices from the Department;

(e) Homecare workers who were inactivated based on OAR 411-031-0040(8)(b)(c); or

(f) Homecare workers who are denied a provider enrollment number at the time of initial application.

(2) REFERRAL OF POTENTIAL VIOLATIONS TO APD CENTRAL OFFICE. When an APD or AAA office has reason to believe a homecare worker has committed one or more of the violations listed in section (3) of this rule, the APD or AAA office shall refer the alleged violation to APD central office using the Department-approved referral form. The homecare worker who allegedly committed the violation shall be provided a copy of the completed referral form.

(3) VIOLATIONS RESULTING IN DENIAL OF RENEWAL, PROPOSED TERMINATION OR IMMEDIATE SUPSENSION OF PROVIDER ENROLLMENT. APD central office may terminate and immediately suspend a homecare worker's provider enrollment when a homecare worker --

(a) Has violated the requirement to maintain a drug-free workplace;

(b) Has an unacceptable background check;

(c) Demonstrates a lack of the skills, knowledge, and ability to adequately or safely perform the required work which includes the inability to comply with Electronic Visit Verification through the Oregon Provider Time Capture Direct Care Innovations system in OAR 411-031-0040(10)(b) and (c);

(d) Is substantiated for committing any type of abuse including but not limited to child abuse, elder abuse or abuse of a person with a disability;

(e) Commits fiscal improprieties;

(f) Fails to provide services as required which includes providing the required service needs of a consumer-employer;

(g) Demonstrates a lack of the ability or willingness to maintain consumer-employer confidentiality;

(h) Creates an unwelcome nuisance to the workplace;

(i) Fails to adhere to an established work schedule;

(j) Has been sanctioned or convicted of a criminal offense related to that individual's involvement in any program established under any public assistance program;

(k) Fails to perform the duties of a Mandatory Abuse Reporter. Homecare workers are mandatory abuse reporters and are required by state abuse statutes to report alleged abuse, ORS 419B.005(s);

(l) Has been excluded by the Health and Human Services, Office of Inspector General, from participation in Medicaid, Medicare, and all other federal health care programs;

(m) Fails to provide a tax identification number or Social Security number that matches the homecare worker's legal name, as verified by the Internal Revenue Service or Social Security Administration;

(n) Fails to inform the Department and their consumer-employer within 14 days of being arrested, cited, or convicted of any potentially disqualifying crime listed in OAR 125-007-0270;

(o) Exerts undue influence over a consumer-employer;

(p) Falsifies information on an application or background check;

(q) Is terminated as a Personal Support Worker through the Office of Developmental Disabilities Services or Oregon Health Authority Health Systems Division and has an active Homecare Worker provider number; APD reserves the right to terminate the HCW’s provider number based on the other agencies termination;

(r) Charges a consumer- employer or relative or representative of the consumer-employer, for any services regardless of if they are paid by the Department or by personal funds;

(s) Fails to meet the mandatory training and competency evaluation requirements in OAR 418-020-0035;

(t) Has had a provider number terminated by another state within the United States;

(u) Has been excluded by the Centers for Medicare and Medicaid Services to work as a Medicaid provider;

(v) Is an employee of Aging and People with Disabilities, Area Agency on Aging, the Office of Administrative Hearings, Oregon Health Authority Health Systems Division, Oregon Department of Human Services Background Check Unit, Oregon Eligibility Partnership (OEP), Oregon Department of Human Services Self Sufficiency Program (SSP), the Oregon Home Care Commission, or a provider to a participant of the independent choices program, as defined in OAR 411-030-0100.

(w) Fails to complete a background check when requested by the Department;

(x) Fails to complete training as required based on a previous Administrative Review of the homecare worker’s provider enrollment number;

(y) Fails to adhere to the hourly cap after warning has been issued by the Department; or

(z) Knowingly engages in activities that may result in exposure of an individual to the Coronavirus (COVID-19) or other communicable diseases;

(A) Activities include:

(i) Failure to take reasonable measures to prevent transmission of COVID-19 or other communicable diseases as directed by a health care provider or the Local Public Health Authority (LPHA).

(ii) Having in-person contact with the individual with whom they do not reside while the homecare worker has been:

(I) Exposed or diagnosed with COVID-19 or other communicable diseases by a health care provider or the LPHA;

(II) Advised to self-quarantine by their health care provider or by LPHA;

(III) Subject to a quarantine or isolation order; or

(IV) Symptomatic as defined by Centers for Disease Control and Prevention (CDC).

(B) The homecare worker provider enrollment may be immediately terminated in the following circumstances:

(i) Returns to direct consumer contact sooner than 14 calendar days after the homecare workers has been:

(I) Diagnosed with COVID-19, presumed to have COVID-19 or other communicable diseases by a health care provider or the LPHA;

(II) Advised by a health care provider to self-quarantine; or

(III) Subject to a quarantine or isolation order by a health care provider or the LPHA.

(ii) Returns to direct consumer contact sooner than 72 hours after the resolution of COVID-19 or other communicable disease symptom(s).

(4) ADMINISTRATIVE REVIEW PROCESS FOR VIOLATIONS RESULTING IN DENIALS OF RENEWALS AND PROPOSED TERMINATION OFPROVIDER ENROLLMENT NUMBERS. Except in instances where an alleged violation presents imminent threat to the health, safety, or welfare of any individual resulting in an immediate suspension, upon receiving notification and evidence of an alleged violation listed in section (3) (a) through (3)(z) of this rule, APD central office shall complete an administrative review within 30 days.

(a) The administrative review provides an opportunity for APD central office to review the local office's referral and decide whether to terminate a homecare worker’s provider enrollment.

(b) The administrative review may include the provision of new evidence, either by the homecare worker or by the APD or AAA office, which APD central office may consider in reaching its decision.

(c) As a part of the administrative review, the homecare worker and a representative may take part in an administrative review conference with APD central office.

(d) After an administrative review conference, APD central office will conclude the administrative review within 10-business days. The administrative review process is concluded when APD central office sends the homecare worker a written notice. If, based on the administrative review, APD central office determines a homecare worker did not violate one or more of the subsections of section (3) of this rule, APD central office shall send a written notice of this determination to the APD or AAA office and to the homecare worker.

(e) Upon agreement of both parties, an extension of the 10-business day deadline may occur.

(5) NOTICE OF PROPOSED DENIAL OF RENEWAL ENROLLMENT NUMBER. When APD central office proposes to deny a homecare worker the ability to renew a provider enrollment number, the homecare worker shall be provided with a written Notice of Proposed Denial of Renewal of Provider Enrollment Number. The notice must:

(a) Include a short and plain explanation of the reason for the proposed denial of renewal;

(b) Indicate the date the Notice of Proposed denial of renewal of Homecare Worker Provider Enrollment was sent to the homecare worker;

(c) Cite the rules supporting the decision to issue the Notice of Proposed denial of renewal of Homecare Worker Provider Enrollment;

(d) List the effective date of the proposed denial of a homecare workers ability to renew a provider number; and

(e) Inform the homecare worker of the homecare worker's appeal rights, including:

(A) The right to legal representation;

(B) How to request a contested case hearing; and

(C) The right to continue working until a final order resolves the contested case unless their provider number has become inactive for reasons listed in OAR 411-031-0040(8)(c).

(f) For denials based on substantiated protective service allegations, complainants, witnesses, the name of the alleged victim and protected health information are not to be disclosed in or with the notice.

(6) NOTICE OF PROPOSED TERMINATION OF HOMECARE WORKER PROVIDER ENROLLMENT. When APD central office proposes to terminate a homecare worker’s provider enrollment, the homecare worker shall be provided with a written Notice of Proposed Termination of the Homecare Worker’s Provider Enrollment. The notice must:

(a) Include a short and plain explanation of the reason for the proposed termination;

(b) Indicate the date the Notice of Proposed Termination of Homecare Worker Provider Enrollment was sent to the homecare worker;

(c) Cite the rules that support APD central office’s decision to issue the Notice of Proposed Termination of Homecare Worker Provider Enrollment;

(d) List the effective date of the Notice of Proposed Termination of Homecare Worker Provider Enrollment; and

(e) Inform the homecare worker of the homecare worker's appeal rights, including:

(A) The right to legal representation;

(B) How to request a contested case hearing; and

(f) For terminations based on substantiated protective service allegations, complainants, witnesses, the name of the alleged victim and protected health information are not to be disclosed in or with the notice.

(7) NOTICE OF IMMEDIATE SUSPENSION OF HOMECARE WORKER PROVIDER ENROLLMENT. APD central office shall issue a Notice of Immediate Suspension of Homecare Worker Provider Enrollment if an immediate threat to the health, safety or welfare of any individual exists. A Notice and Order of Immediate Suspension of Homecare Worker Provider Enrollment must:

(a) Include a short and plain explanation of the reason for the immediate suspension;

(b) Indicate the date the Notice and Order of Immediate Suspension of Homecare Worker Provider Enrollment was served on the homecare worker and the date of the Notice;

(c) Cite the rules that support APD central office’s decision to issue the Notice and Order of Immediate Suspension of Homecare Worker Provider Enrollment;

(d) List the effective date of the Notice and Order of Immediate Suspension of Homecare Worker Provider Enrollment; and

(e) Inform the homecare worker of the homecare worker's appeal rights, including:

(A) The right to legal representation;

(B) How to request a contested case hearing; and

(C) The homecare worker has a right to a hearing to be scheduled as soon as practicable to contest the immediate suspension order.

(D) If no hearing request is postmarked within 90 days of the postmarked date of the Notice and Order of Immediate Suspension the homecare worker is deemed to have waived the right to a contested case hearing on the Notice and Order of Immediate Suspension.

(8) CONTESTED CASE HEARINGS. A homecare worker sent a Notice of Denial of Renewal Enrollment, Notice of Proposed Termination of Homecare Worker Provider Enrollment or an Immediate Suspension of Homecare Worker Provider Enrollment has a right to request a contested case hearing pursuant to ORS 183.

(a) The homecare worker’s request for an administrative hearing must:

(A) Be in writing;

(B) Be postmarked or emailed no later than 60 days from the date of the Notice of Proposed Denial of Renewal Provider Enrollment Number.

(C) Be postmarked or emailed no later than 60 days from the date of the Notice of Proposed Termination of Homecare Worker Provider Enrollment.

(D) Be postmarked or emailed no later than 90 days from the date the Notice and Order of Immediate Suspension of Homecare Worker Provider Enrollment was sent; and

(E) Specify the issues or decisions being contested.

(b) The Department shall refer the homecare worker’s administrative hearing request to the Office of Administrative Hearings as described in OAR chapter 137, division 003.

(c) When the Department refers an administrative hearing request, under these rules, to the Office of Administrative Hearings, the Department shall indicate on the referral whether the Department is authorizing a proposed order, a proposed and final order, or a final order.

(d) A homecare worker who completes an administrative hearing request may take part in an informal conference with a Department hearing representative before the administrative hearing.

(e) No additional hearing rights have been granted to homecare workers by this rule other than the right to a hearing on the Notice of Department’s proposed denial of re-enrollment, proposed termination of provider enrollment or immediate suspension of the homecare worker’s provider enrollment number.

(9) TERMINATION IF NO CONTESTED CASE HEARING REQUEST FILED.

(a) When a homecare worker is sent a Notice of Proposed Denial of Renewal Provider Enrollment and does not request a contested case hearing postmarked or emailed within 60 days from the date of the Notice of Proposed Denial of Renewal Provider Enrollment the provider enrollment will be terminated. APD central office will send the homecare worker a Final Order by Default in accordance with OAR 137-003-0670.

(b) When a homecare worker is sent a Notice of Proposed Termination of Provider Enrollment and the homecare worker does not request a contested case hearing postmarked or emailed within 60 days from the date of the Notice of Proposed Termination of Provider Enrollment, the homecare worker’s provider enrollment will be terminated. APD central office will send the homecare worker a Final Order by Default in accordance with OAR 137-003-0670.

(c) When a homecare worker is sent a Notice and Order of Immediate Suspension of Provider Enrollment and the homecare worker does not request a contested case hearing postmarked or emailed within 90 days from the date on the Notice and Order of Immediate Suspension, the Notice and Order of Immediate Suspension of Provider Enrollment becomes the final order by default.

(10) PAYMENT SUSPENSION DUE TO FRAUD:

(a) When the Department has determined that there is a credible allegation of fraud, the Department must suspend provider payments pursuant to federal law under 42 CFR 455.23.

(b) The suspension of provider payments will remain in effect until such time as either APD or a prosecuting authority has determined that there is insufficient evidence of any alleged fraud, or any legal proceedings related to alleged fraud are completed.

(c) If it is determined that there is insufficient evidence of alleged fraud, or no legal proceedings are filed, or it has been determined that the HCW is exonerated of any wrongdoing after any legal proceedings have completed, the provider payments will resume.

(d) No back payments will be made for the time the payments were suspended.

(e) If a homecare worker is convicted, payments are permanently suspended.

History

Statutory/Other Authority: ORS 409.050, ORS 410.070 & 410.090
Statutes/Other Implemented: ORS 410.070
APD 4-2024, amend filed 01/29/2024, effective 02/01/2024
APD 13-2023, temporary amend filed 08/22/2023, effective 08/25/2023 through 02/20/2024
APD 3-2023, amend filed 03/01/2023, effective 03/01/2023
APD 18-2021, amend filed 06/02/2021, effective 06/07/2021
APD 3-2021, temporary amend filed 01/12/2021, effective 01/13/2021 through 07/11/2021
APD 27-2018, amend filed 07/31/2018, effective 07/31/2018
APD 1-2018, temporary amend filed 01/26/2018, effective 02/01/2018 through 07/30/2018
APD 31-2016, f. 8-24-16, cert. ef. 8-28-16
APD 6-2016(Temp), f. & cert. ef. 3-23-16 thru 8-28-16
APD 2-2016(Temp), f. & cert. ef. 3-2-16 thru 8-28-16
SPD 47-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 4-2013, f. 3-25-13, cert. ef. 3-26-13
SPD 3-2010, f. 5-26-10, cert. ef. 5-30-10
SPD 15-2006, f. 4-26-06, cert. ef. 5-1-06
SPD 15-2005(Temp), f. & cert. ef. 11-16-05 thru 5-15-06
Reverted to SPD 17-2004, f. 5-28-04, cert.ef. 6-1-04
SPD 40-2004(Temp), f. 12-30-04, cert. ef. 1-1-05 thru 6-30-05
SPD 17-2004, f. 5-28-04, cert.ef. 6-1-04

Division 32 OREGON PROJECT INDEPENDENCE

Or. Admin. R. 411-032-0000 Definitions

(1) "AAA" means "Area Agency on Aging".

(2) "Activities of Daily Living (ADL)" mean those personal care functional activities required by an individual for continued well being, health, and safety. For the purposes of these rules, ADLs consist of eating, dressing/grooming, bathing/personal hygiene, mobility (ambulation and transfer), elimination (toileting, bowel, and bladder management), and cognition/behavior as described in OAR 411-015-0006.

(3) "Adjusted Income" means the income for all household members after deductions for household medical expenses as described in OAR 411-032-0044.

(4) "ADL" means "Activities of Daily Living".

(5) "Administrative Costs" mean those expenses associated with the overall operation of OPI that are not directly attributed to an authorized service. Administrative costs include, but are not limited to, costs associated with accounting services, indirect costs, facility expenses, etc.

(6) "Adult Day Service" means a community-based group program designed to meet the needs of adults with functional impairments through service plans. These structured, comprehensive, non-residential programs provide health, social and related support services in a protective setting during part of a day, but for less than 24 hours per day.

(7) "Advisory Council" means an advisory council of the authorized AAA.

(8) "Alzheimer's Disease or a Related Disorder" means a progressive and degenerative neurological disease that is characterized by dementia including the insidious onset of symptoms of short-term memory loss, confusion, behavior changes, and personality changes. It includes dementia caused from any one of the following disorders:

(a) Multi-Infarct Dementia (MID);

(b) Normal Pressure Hydrocephalus (NPH);

(d) Parkinson's Disease;

(e) Creutzfeldt-Jakob Disease;

(f) Huntington's Disease;

(g) Multiple Sclerosis;

(h) Uncommon Dementia such as Pick's Disease, Wilson's Disease, and Progressive Supranuclear Palsy; or

(i) All other related disorders recognized by the Alzheimer's Association.

(9) "Area Agency on Aging (AAA)" means the agency designated by the Department as an AAA that is charged with the responsibility to provide a comprehensive and coordinated system of services to older adults and individuals with physical disabilities in a planning and service area. For purposes of these rules, the term "Area Agency on Aging" is inclusive of both Type A and B AAAs as defined in ORS 410.040 to 410.350.

(10) "Area Plan" means the approved plan for providing authorized services under OPI.

(11) "Assisted Transportation" means escort services that provide assistance to an individual who has difficulties (physical or cognitive) using regular vehicular transportation.

(12) "Assistive Technology Device" means any item, piece of equipment, or product system, whether acquired commercially, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of an individual.

(13) "Authorized Service" means any service designated by the Department and these rules to be eligible for OPI funding.

(14) "Chore" means assistance such as heavy housework, yard work, or sidewalk maintenance provided on an intermittent or one-time basis to assure health and safety.

(15) "Consumer-Employed Provider Program" refers to the program wherein the provider is directly employed by the eligible individual to provide either hourly or live-in services. In some aspects of the employer and employee relationship, the Department acts as an agent for the consumer-employer. These functions are clearly described in OAR chapter 411, division 031.

(16) "DAS" means the Department of Administrative Services for the State of Oregon.

(17) "Department" means the Department of Human Services.

(18) "Diagnosed" means, for purposes of these rules, that an individual's physician has reason to believe and indicates that the individual has Alzheimer's Disease or a related disorder.

(19) "Director" means the Director of the Department of Human Services, or that person's designee.

(20) "Direct Service Costs" mean those expenses for direct labor that are attributable to the authorized services specified in OAR 411-032-0010(1)(a)(A) and (1)(c). For example, the direct service cost of home care is the cost of time actually spent providing home care supportive services in the home. Other direct service costs are those that are directly attributable to an individual-related function.

(21) "Eligibility Determination" means the process of deciding if a prospective individual meets the requirements necessary to receive authorized services under OPI.

(22) "Evidence-Based Health Promotion" means individual or group programs that have been tested through randomized control trials and have been shown to be effective at helping participants adopt healthy behaviors, improve their health status, and reduce their use of health services.

(23) "Exception" means that an agency or individual contractor or subcontractor is not required to meet one or more specific requirements of these rules.

(24) "Fiscal Records and Data" means all information pertaining to the financial operation of an agency or program.

(25) "Gross Income" means household income from salaries, interest and dividends, pensions, Social Security, railroad retirement benefits, and any other income prior to any deductions.

(26) "Health Care Costs" mean health-related expenses paid out-of-pocket that include but are not limited to medical, dental, health insurance, prescription drugs, over-the-counter drugs, hearing aids, and eyeglasses.

(27) "Home Care" means assistance with IADLs such as housekeeping, laundry, shopping, transportation, medication management, and meal preparation.

(28) "Home Care Supportive Services" means in-home or community-based services that assist an individual in achieving the greatest degree of independent functioning in the individual’s place of residence.

(29) "Homecare Worker" means a provider, as defined in OAR 411-030-0020 and described in 411-031-0040, who is directly employed by an eligible individual via the Consumer-Employed Provider Program to provide hourly services to eligible individuals.

(30) "Home Delivered Meal" means a service that includes a meal provided to an eligible individual in the individual's place of residence. Home Delivered Meals:

(a) Are prepared and delivered in compliance with applicable state and local laws;

(b) Meet a minimum of 33 1/3 percent of Dietary Reference Intakes and Dietary Guidelines;

(d) Require an in-person initial assessment and a minimum annual assessment; and

(e) Provide nutrition education to the individual one time per year.

(31) "Hourly Services" mean the in-home services, including ADLs and IADLs, provided at regularly scheduled times. Hourly services are not exempt from federal or state minimum wage or overtime laws.

(32) "Household" means the individual, spouse, and any dependents as defined by the Internal Revenue Service.

(33) "IADL" means "Instrumental Activities of Daily Living".

(34) "Indirect Cost" means:

(a) Incurred for a common or joint purpose benefiting more than one cost objective; and

(b) Not readily assignable to the cost objectives specifically benefited, without effort disproportionate to the results achieved. The term "indirect cost," as used herein, applies to costs of this type originating in the grantee department, as well as those incurred by other departments in supplying goods, services, and facilities. To facilitate equitable distribution of indirect expenses, to the cost objectives served, it may be necessary to establish a number of pools of indirect costs. Indirect cost pools are distributed to benefited cost objectives on bases that produce an equitable result in consideration of relative benefits derived.

(35) "In-Home Care Agency" means an incorporated entity or equivalent licensed in accordance with OAR chapter 333, division 536 to provide hourly contracted in-home service to individuals in that individual's place of residence.

(36) "Institution" means any state, community, or private hospital and any nursing facility.

(37) "Instrumental Activities of Daily Living (IADL)" mean the self-management tasks that consist of housekeeping including laundry, shopping, transportation, medication management, and meal preparation as described in OAR 411-015-0007.

(38) "Natural Support" means the resources available to an individual from their relatives, friends, significant others, neighbors, roommates, and the community. Services provided by natural supports are resources not paid for by the Department or AAA.

(39) "OPI" means Oregon Project Independence.

(40) "Options Counseling" means counseling that supports informed long term care decision making through assistance provided to individuals and families to help them understand their strengths, needs, preferences, and unique situations and translate this knowledge into possible support strategies, plans, and tactics based on the choices available in the community.

(41) "Personal Care" means in-home services provided to maintain, strengthen, or restore an individual's functioning in their own home when an individual is dependent in one or more ADLs, or when an individual requires assistance for ADL needs. Assistance is provided either by an in-home care agency or by a homecare worker.

(42) "Place of Residence" means the physical location of an individual’s legal residence. For purposes of these rules "place of residence" does not include an adult foster home, assisted living facility, residential care facility, or nursing facility licensed by the Department.

(43) "Priority" means the order in which the AAA determines individuals to be eligible for OPI.

(44) "Program Records and Data" means any information of a non-fiscal nature.

(45) "Program Support Costs" mean those expenses associated with managing the services provided either through contract or directly by the AAA, that are attributable to a specific service.

(46) "Provider" means the individual who actually renders the service.

(47) "Registered Nurse Services" mean services provided by a registered nurse on a short-term or intermittent basis that include but are not limited to:

(a) Interviewing the individual and, when appropriate, other relevant parties;

(b) Assessing the individual's ability to perform tasks;

(d) Monitoring medication; and

(e) Training and educating providers around the provisions of the service plan.

(48) "Respite" means paid temporary services to provide relief for families or other caregivers who are unpaid. In-home and out-of-home respite may be provided on an hourly or daily basis, including 24-hour respite service for several consecutive days. The range of tasks provided may include supervision, companionship, and personal care services usually provided by the primary caregiver.

(49) "Service Coordination" means a service designed to individualize and integrate social and health care options with an individual being served. The goal of service coordination is to provide access to an array of service options to assure appropriate levels of service and to maximize coordination in the service delivery system.

(50) "Service Coordination Costs" mean those expenses associated with individualizing and integrating social and health care options with an individual receiving a service. Cost elements include time spent with the individual, travel to and from an individual's place of residence, mandated training time, case recording, reporting, time spent arranging for and coordinating services for an individual, and supervision and staffing time related to an individual. Service coordination costs also include the time spent on the initial assessment of an individual who does not become eligible for OPI.

(51) "Service Determination" means the process of determining the proper authorized service for each eligible individual.

(52) "Service Need" means those functions or activities for which an individual requires the support of the Department or AAA.

(53) "Service Provider" means any agency or program that provides one or more authorized services under OPI.

(54) "These Rules" mean the rules in OAR chapter 411, division 032.

History

Statutory/Other Authority: ORS 410.070 & ORS 410.435
Statutes/Other Implemented: ORS 410.410 - 410.480
SPD 11-2013, f. 5-31-13, cert. ef. 7-1-13
SPD 29-2006, f. 10-23-06, cert. ef. 11-1-06
SPD 18-2004, f. & cert. ef. 5-28-04
SPD 11-2003, f. & cert. ef. 5-2-03
Reverted to SDSD 7-1999, f. 6-30-99, cert. ef. 7-1-99
SDSD 9-2002(Temp), f. & cert. ef. 11-1-02 thru 4-29-03
SDSD 7-1999, f. 6-30-99, cert. ef. 7-1-99
SSD 3-1997, f. 11-28-97, cert. ef. 12-1-97
SSD 11-1993, f. 12-30-93, cert. ef. 1-1-94
SSD 5-1990, f. & cert. ef. 2-1-90
SSD 19-1989(Temp), f. 12-29-89, cert. ef. 1-1-90
SSD 12-1988, f. & cert. ef. 12-2-89
SSD 6-1987, f. & ef. 7-1-87
SSD 11-1984, f. 11-30-84, ef. 12-1-84

Or. Admin. R. 411-032-0001 Goals

The goals of Oregon Project Independence are to:

(1) Promote quality of life and independent living among older adults and people with physical disabilities;

(2) Provide preventive and long-term care services to eligible individuals to reduce the risk for institutionalization and promote self-determination;

(3) Provide services to frail and vulnerable adults who are lacking or have limited access to other long-term care services; and

(4) Optimize eligible individuals' personal resources and natural supports.

History

Statutory/Other Authority: ORS 410.070 & 410.435
Statutes/Other Implemented: ORS410.410 - 410.480
SPD 11-2013, f. 5-31-13, cert. ef. 7-1-13
SPD 21-2010(Temp), f. & cert. ef. 7-30-10 thru 12-28-10
SPD 16-2010(Temp), f. & cert. ef. 7-1-10 thru 12-28-10
SPD 14-2010(Temp), f. & cert. ef. 6-30-10 thru 12-27-10
SPD 29-2006, f. 10-23-06, cert. ef. 11-1-06
SPD 18-2004, f. & cert. ef. 5-28-04
SPD 11-2003, f. & cert. ef. 5-2-03
SDSD 9-2002(Temp), f. & cert. ef. 11-1-02 thru 4-29-03
SSD 12-1988, f. & cert. ef. 12-2-89

Or. Admin. R. 411-032-0005 Administration

(1) ADVISORY COUNCIL. Each AAA must show evidence that the advisory council of the AAA, and the community were involved in the identification of need, selection of services to be offered, and the development of an Area Plan.

(2) AREA PLAN.

(a) Each AAA must submit an Area Plan to the Department on forms provided by the Department by the date specified.

(b) The Area Plan must, at a minimum, contain:

(A) The types and amounts of authorized services to be offered;

(B) The costs of authorized services;

(D) How individuals receive initial and ongoing periodic screening for other community services, including Medicaid;

(E) How eligibility is determined;

(F) How authorized services are provided;

(G) The policy for prioritizing OPI service delivery;

(H) The policy for denial, reduction, or termination of authorized services;

(I) The policy for informing individuals of their right to grieve adverse eligibility, service determination decisions, and consumer complaints;

(J) How fees for services are developed, billed, collected, and utilized;

(K) The policy for addressing individual non-payment of fees, including when exceptions are made for repayment and when fees are waived;

(L) How service providers are monitored and evaluated; and

(M) The conflict of interest policy for any direct provision of services for which a fee is set.

(3) CONTRACTS.

(a) Contracts between the Department and AAA for OPI are effective each year on July 1, unless otherwise agreed to by the Department. These contracts are based on the Area Plan and must, at a minimum, contain:

(A) A budget showing the amounts of OPI funds;

(B) The types of authorized services to be offered;

(C) The stipulation that contracted authorized services must be in accordance with the standards and requirements provided in these rules, and in accordance with the in-home services rules (OAR chapter 411, divisions 030 and 031) and the service priority rules (OAR chapter 411, division 015), and if applicable, in accordance with the in-home care agency rules (OAR chapter 333, division 536);

(D) The stipulation that required data must be gathered, reported, and monitored in accordance with these rules and the Department;

(E) A section pertaining to general provisions as required by DAS;

(F) A provision that AAAs must submit service provider contracts and amendments to the Department upon request from the Department; and

(G) Fee for service schedules developed in accordance with these rules.

(b) Contracts between AAAs and service providers must be signed and kept on file by the AAA for not less than three years for all services funded through OPI. The contracts must at a minimum contain:

(A) A budget or a maximum amount of OPI funds, as well as all other resources devoted to OPI under the contract;

(B) The types and amounts of authorized services to be offered and the rate per unit for each authorized service;

(C) The stipulation that authorized services must be offered in accordance with the standards and requirements provided in these rules, and in accordance with the in-home services rules (OAR chapter 411, divisions 030 and 31) and the service priority rules (OAR chapter 411, division 015);

(D) The stipulation that required data must be gathered and reported in accordance with these rules and the Department; and

(E) A section pertaining to general provisions as required by DAS.

(d) All contracts as described in this rule must contain provisions for cancellation of the contract for non-performance and violation of the terms of the contract.

(4) PERSONNEL PRACTICES AND PROCEDURES.

(a) Each AAA and service provider must maintain written personnel policies.

(b) The personnel policies must contain all items required by state and federal laws and regulations, including such items as:

(A) An affirmative action plan; and

(B) Evidence that the AAA and service provider are equal opportunity employers.

(5) NON-COMPLIANCE.

(a) Non-compliance to these rules may result in a reduction or termination of OPI funding, except in those cases where an exception has been granted by the Department;

(b) The determination of the amount of reduced funding is made by the Director of the Department;

(c) Any funds that are either reduced or terminated from a funding grant are reserved by the Department for redistribution at the Department's discretion. At the end of the biennium, unexpended funds are returned to the General Fund unless otherwise directed by the Legislative Assembly.

History

Statutory/Other Authority: ORS 410.070 & 410.435
Statutes/Other Implemented: ORS 410.410 - 410.480
SPD 11-2013, f. 5-31-13, cert. ef. 7-1-13
SPD 29-2006, f. 10-23-06, cert. ef. 11-1-06
SPD 18-2004, f. & cert. ef. 5-28-04
SPD 11-2003, f. & cert. ef. 5-2-03
Reverted to SDSD 7-1999, f. 6-30-99, cert. ef. 7-1-99
SDSD 9-2002(Temp), f. & cert. ef. 11-1-02 thru 4-29-03
SDSD 7-1999, f. 6-30-99, cert. ef. 7-1-99
SSD 3-1997, f. 11-28-97, cert. ef. 12-1-97
SSD 11-1993, f. 12-30-93, cert. ef. 1-1-94
SSD 5-1990, f. & cert. ef. 2-1-90
SSD 19-1989(Temp), f. 12-29-89, cert. ef. 1-1-90
SSD 12-1988, f. & cert. ef. 12-2-89
SSD 11-1984, f. 11-30-84, ef. 12-1-84

Or. Admin. R. 411-032-0010 Authorized Services and Allowable Costs

(1) AUTHORIZED SERVICES.

(a) Authorized services for which OPI funds may be expended include:

(A) Home care supportive services limited to the following:

(i) Home care;

(ii) Chore;

(iii) Assistive technology device;

(iv) Personal care;

(v) Adult day services;

(vi) Registered nurse services; and

(vii) Home delivered meals.

(B) Service coordination.

(b) Other authorized services for which OPI funds may be expended are authorized on a case by case basis by the Director of the Department. Other authorized services may include:

(A) Services to support community caregivers and strengthen the natural support system of individuals;

(B) Evidence-based health promotion services;

(D) Assisted transportation options that allow individuals to live at home and access the full range of community resources.

(c) Authorized services provided by an in-home care agency must meet the standards and requirements of in-home care agencies under ORS 443.305 to 443.350 and OAR chapter 333, division 536, and may only be offered through an in-home care agency licensed by the Oregon Health Authority.

(d) Authorized services provided by a homecare worker must meet the standards and requirements of the Home Care Commission under ORS 410.600 to 410.614 and OAR chapter 411, divisions 030 and 031.

(e) Authorized services provided using the Consumer-Employed Provider Program must meet the standards and requirements of OAR chapter 411, divisions 030 and 031.

(2) COMPUTATION OF ALLOWABLE COSTS. Allowable costs by AAAs are costs associated with the direct provision of authorized services to individuals and such administrative costs as may be required to assure adequate services and to provide information to the Department.

(3) ADMINISTRATIVE COSTS. Administrative costs cannot exceed ten percent of OPI funds.

History

Statutory/Other Authority: ORS 410.070 & 410.435
Statutes/Other Implemented: ORS 410.410 - 410.480
SPD 11-2013, f. 5-31-13, cert. ef. 7-1-13
SPD 29-2006, f. 10-23-06, cert. ef. 11-1-06
SPD 18-2004, f. & cert. ef. 5-28-04
SPD 11-2003, f. & cert. ef. 5-2-03
SDSD 9-2002(Temp), f. & cert. ef. 11-1-02 thru 4-29-03
SSD 3-1997, f. 11-28-97, cert. ef. 12-1-97
SSD 11-1993, f. 12-30-93, cert. ef. 1-1-94
SSD 5-1990, f. & cert. ef. 2-1-90
SSD 19-1989(Temp), f. 12-29-89, cert. ef. 1-1-90
SSD 12-1988, f. & cert. ef. 12-2-89
SSD 6-1987, f. & cert. ef. 7-1-87
SSD 11-1984, f. 11-30-84, cert. ef. 12-1-84

Or. Admin. R. 411-032-0015 Data Collection, Records, and Reporting

(1) DATA COLLECTION.

(a) The collection of required program and fiscal records and data associated with OPI must be on forms and data systems as approved by the Department.

(b) Each AAA and service provider must collect data on eligible individuals receiving authorized services as required by the Department.

(c) All authorized service data collected on eligible individuals, supported by OPI must contain the individual's Social Security Number and date of birth.

(d) For individuals under the age of 60, documentation must be placed in the individual's file that the individual has been diagnosed as having Alzheimer's Disease or a related disorder. Documentation must come verbally or in writing from the individual's physician. The type of "related disorder" must also be specified in this documentation.

(2) RECORDS.

(a) Each AAA and service provider must maintain all books, records, documents, and accounting procedures that reflect all administrative costs, program support costs, direct service costs, and service coordination costs expended on OPI. These records must be retained for not less than three years.

(b) Each AAA and service provider must make these records available upon request to representatives from the Department, or to those duly authorized by the Department.

(3) FISCAL AND PROGRAM REPORTING:

(a) Fiscal and program reports must be completed on forms provided by the Department.

(b) Fiscal and program reports must be submitted to the Department by the specified due dates.

(A) Current cumulative expenditures;

(B) Cost per unit of authorized service;

(D) Program support costs;

(E) Service coordination costs;

(F) Direct service costs;

(G) The amount of fee for service assessed, billed, expended, and collected and other funds received;

(H) Number of unduplicated recipients year to date served for each authorized service year to date, and unduplicated case count year to date;

(I) Number of units of service for each authorized service; and

(J) Demographic, social, medical, physical, functional, and financial data, including a breakdown of the income levels of OPI eligible individuals, as required by the Department on the Department's Client Assessment/Planning System (CA/PS) and in Oregon ACCESS database.

(4) CONFIDENTIALITY. The use or disclosure by any party of any information concerning a recipient of authorized services described in these rules, for any purpose not directly connected with the administration of the responsibilities of the Department, AAA, or service provider is prohibited except with written consent of the recipient, or their legal representative. Disclosure of recipient information must meet Department requirements.

History

Statutory/Other Authority: ORS 410.070 & 410.435
Statutes/Other Implemented: ORS 410.410 - 410.480
SPD 11-2013, f. 5-31-13, cert. ef. 7-1-13
SPD 29-2006, f. 10-23-06, cert. ef. 11-1-06
SPD 18-2004, f. & cert. ef. 5-28-04
SPD 11-2003, f. & cert. ef. 5-2-03
Reverted to SSD 3-1997, f. 11-28-97, cert. ef. 12-1-97
SDSD 9-2002(Temp), f. & cert. ef. 11-1-02 thru 4-29-03
SSD 3-1997, f. 11-28-97, cert. ef. 12-1-97
SSD 5-1990, f. & cert. ef. 2-1-90
SSD 19-1989(Temp), f. 12-29-89, cert. ef. 1-1-90
SSD 12-1988, f. & cert. ef. 12-2-89
SSD 6-1987, f. & ef. 7-1-87
SSD 11-1984, f. 11-30-84, ef. 12-1-84

Or. Admin. R. 411-032-0020 Eligibility and Determination of Authorized Services

(1) ELIGIBILITY.

(a) In order to qualify for authorized services from an AAA or service provider, each eligible individual must:

(A) Be 60 years old or older or be under 60 years of age and diagnosed as having Alzheimer's Disease or a related disorder;

(B) Not be receiving financial assistance or Medicaid, except food stamps, or Qualified Medicare Beneficiary or Supplemental Low Income Medicare Beneficiary Programs; and

(b) Eligibility determination is required before any individual may receive authorized services from an AAA or service provider. The documentation required by OAR 411-032-0015 must be obtained before an individual under the age of 60 may be determined to be eligible.

(c) Eligibility determination is the responsibility of the AAA. In those instances when eligibility determination is performed by an agency other than the AAA, the AAA must have in place a system for evaluating the eligibility determination process, including an independent review by the AAA of a representative sample of cases.

(d) Any individual residing in a nursing facility, assisted living facility, residential care facility, or adult foster home setting is not eligible for authorized services. This does not restrict the ability to move an eligible individual from such institutions to their home to receive authorized services, when judged more appropriate, based on medical, financial, physical, functional, and social considerations.

(e) Any individual residing in a living setting that offers any services authorized under OAR 411-032-0010 is limited to receiving OPI authorized services that are not available in that setting.

(f) The Department determines the factors that constitute an individual being at risk of institutionalization. These factors are currently defined in the long-term care services priority rules, OAR chapter 411, division 015. These factors must be utilized by each AAA and service provider.

(g) Applicants must receive written notification of eligibility determination.

(2) SERVICE DETERMINATION.

(a) Service determination rests with the AAA. In those instances when service determination is performed by an agency other than the AAA, the AAA must have in place a system for evaluating the service determination process, including an independent review by the AAA of a representative sample of cases.

(b) Service determination is based on each individual's financial, physical, functional, medical, and social need for such services and in accordance with OAR chapter 411, division 015.

(d) Service determination is made:

(A) After eligibility determination; and

(B) At regular intervals but not less than once every twelve months.

(e) Individuals must receive written notification of the service determination:

(A) Notice must include the maximum monthly hours of authorized service, the hourly and maximum monthly fee, the service rate, and provider contact information.

(B) Written notification of the service determination must be provided to the individual upon initial service determination, at annual reassessment, and when there are changes to the service determination.

(3) PRIORITY FOR AUTHORIZED SERVICES.

(a) An AAA may establish local priorities for OPI authorized services. The AAA's local priorities cannot conflict with this rule. In the event of a grievance, this rule takes precedence over local priorities.

(b) Priority for authorized services is:

(A) Maintaining eligible individuals already receiving authorized service as long as their condition indicates the service is needed.

(B) Individuals screened utilizing a Department authorized tool that measures risk for out of home placement based on an individual’s financial, physical, functional, medical, and social service needs. Individuals with the highest risk of out of home placement are given priority.

(4) APPEALS. Individuals for whom services are denied, disallowed, or reduced through eligibility determination or service determination are entitled to request review of the decision through the AAA grievance review procedure set forth in policy.

(a) Individuals must continue to receive authorized services until the disposition of the local AAA grievance review.

(b) The AAA must provide the applicant with written notification of the grievance review determination decision.

(c) Applicants who disagree with the results of the AAA grievance review have a right to an administrative review with the Department, pursuant to ORS chapter 183. This information is provided to the applicant in a written notification at the time of the grievance review decision.

(d) Applicants requesting an administrative review from the Department are not eligible for continued OPI authorized.

(e) All individuals, including those who may have previously been terminated from OPI, have the right to apply for OPI authorized services at any time.

History

Statutory/Other Authority: ORS 410.070 & 410.435
Statutes/Other Implemented: ORS 410.410 - 410.480
SPD 11-2013, f. 5-31-13, cert. ef. 7-1-13
SPD 29-2006, f. 10-23-06, cert. ef. 11-1-06
SPD 18-2004, f. & cert. ef. 5-28-04
SPD 11-2003, f. & cert. ef. 5-2-03
Reverted to SDSD 7-1999, f. 6-30-99, cert. ef. 7-1-99
SDSD 9-2002(Temp), f. & cert. ef. 11-1-02 thru 4-29-03
SDSD 7-1999, f. 6-30-99, cert. ef. 7-1-99
SSD 3-1997, f. 11-28-97, cert. ef. 12-1-97
SSD 11-1993, f. 12-30-93, cert. ef. 1-1-94
SSD 5-1990, f. & cert. ef. 2-1-90
SSD 19-1989(Temp), f. 12-29-89, cert. ef. 1-1-90
SSD 12-1988, f. & cert. ef. 12-2-89
SSD 11-1984, f. 11-30-84, ef. 12-1-84

Or. Admin. R. 411-032-0044 Fees for Authorized Service and Fees for Service Schedule

(1) FEE FOR AUTHORIZED SERVICES.

(a) A one-time fee is applied to all individuals receiving OPI authorized services who have adjusted income levels at or below federal poverty level. The fee is due at the time eligibility for OPI authorized services has been determined.

(b) Fees for authorized services, except service coordination and home delivered meals, are charged based on a sliding fee schedule to all eligible individuals whose annual gross income exceeds the minimum, as established by the Department. For purposes of these rules, an individual's annual gross income includes:

(A) Salaries from the household;

(B) Interest and dividends from the household;

(D) Any other income from the household.

(i) All out-of-pocket health care costs may be deducted from the individual's annual gross income.

(ii) All child support paid by a non-custodial parent may be deducted from the individual's annual gross income.

(c) Individuals must receive written notification of the hourly and maximum monthly fee for service upon initial service determination and whenever there is a change.

(d) The AAA must develop procedures for assessing, billing, collecting, and expending fees.

(A) The written policy addressing individual non-payment of fees to be reviewed and approved is included in the AAA's Area Plan.

(B) Individuals must be given a copy of the AAA's policy pertaining to individual non-payment of fees upon initial eligibility determination.

(C) The decision to terminate OPI authorized services for non-payment of assessed fees for service is the responsibility of the local AAA.

(e) A record of surcharges and all fees for services must be kept by each AAA and reported monthly to the Department.

(A) Minimum fees and fee for service determination forms must be a part of each individual's case record. Fee for service determination forms must meet minimum requirements for documentation as established by the Department.

(B) The maximum monthly authorized fee for services must be recorded on each individual's case record upon initial service determination and at least annually thereafter, at time of reassessment.

(f) Nothing in these rules prevent OPI individuals, or the individual's family, from making a donation or contribution. Such donations are used to expand services under OPI. Expansion of services is limited to services authorized in OAR 411-032-0010 as identified in the AAA's Area Plan.

(g) The minimum fee and all fees for service are used to expand services under OPI. Expansion of services is limited to services authorized in OAR 411-032-0010 as identified in the AAA's Area Plan.

(h) The AAAs and service providers must have a Department reviewed fee collection policy.

(2) FEE FOR SERVICE SCHEDULE.

(a) The Department, after consultation with the AAAs, develops and publishes a fee schedule for services based on the federal poverty level and distributes the schedule to the AAAs annually.

(b) The fee for service schedule is applied to the local rate specific to the service and the type of provider for the individual.

History

Statutory/Other Authority: ORS 410.070 & 410.435
Statutes/Other Implemented: ORS 410.410 - 410.480
SPD 11-2013, f. 5-31-13, cert. ef. 7-1-13
SPD 29-2006, f. 10-23-06, cert. ef. 11-1-06
SPD 18-2004, f. & cert. ef. 5-28-04
SPD 11-2003, f. & cert. ef. 5-2-03
SDSD 9-2002(Temp), f. & cert. ef. 11-1-02 thru 4-29-03
SSD 3-1997, f. 11-28-97, cert. ef. 12-1-97
SSD 11-1993, f. 12-30-93, cert. ef. 1-1-94
SSD 11-1991, f. & cert. ef. 6-14-91
SSD 17-1990, f. & cert. ef. 8-20-90
SSD-11-1990(Temp), f. & cert. ef. 4-27-90
SSD 5-1990, f. & cert. ef. 2-1-90
SSD 19-1989(Temp), f. 12-29-89, cert. ef. 1-1-90
SSD 13-1989, f. & cert. ef. 9-1-89
SSD 9-1988, f. & cert. ef. 8-1-88
SSD 15-1985, f. 12-31-85, cert. ef. 1-1-86

Or. Admin. R. 411-032-0050 Pilot for Adults with Disabilities

This rule applies from July 1, 2021 through June 30, 2023.

(1) The purpose of this rule is to set out the policies that apply to the expansion of Oregon Project Independence services to adults with physical disabilities. The pilot allows the Department to study the potential to transition Oregon Project Independence to a statewide, age neutral, program that assesses and serves seniors and persons with physical disabilities based on their functional needs.

(2) "Disability" means, for the purposes of this rule, a physical, cognitive, or emotional impairment which, for an individual, constitutes or results in a functional limitation in one or more of the activities of daily living defined in OAR 411-015-0006, or in one or more of the instrumental activities of daily living defined in OAR 411-015-0007.

(3) "Adult" means, for purposes of this rule, any person 19 to 59 years of age.

(4) OAR 411-032-0000 to 411-032-0044 apply to this pilot program, except as noted below:

(a) Authorized Services and Allowable Costs. Authorized services may not be available in all service areas. Authorized services for the pilot funds include home care supportive services, service coordination, and other services, including the following:

(A) Home care.

(B) Chore services.

(D) Personal care services.

(E) Adult day services.

(F) Registered nurse services.

(G) Home delivered meals.

(H) Services to support community caregivers and strengthen the natural support system of individuals.

(I) Evidence-based health promotion services.

(J) Options counseling.

(K) Assisted transportation options that allow individuals to live at home and access the full range of community resources.

(b) Eligibility.

(A) In order to qualify for authorized services under this pilot, an individual must:

(i) Be an adult with a disability;

(ii) Be a resident of a designated pilot area and seek services at that location;

(iii) Not be receiving Medicaid; and

(iv) Meet the requirements of the long-term care services priority rules in OAR chapter 411, division 015.

(B) The Area Agencies on Aging must determine eligibility prior to an individual receiving authorized services.

History

Statutory/Other Authority: ORS 409.050, 410.070 & 410.435
Statutes/Other Implemented: ORS 409.010 & 410.410 - 410.480
APD 9-2022, amend filed 03/10/2022, effective 03/11/2022
APD 35-2021, temporary amend filed 09/17/2021, effective 09/17/2021 through 03/15/2022
APD 48-2019, amend filed 11/13/2019, effective 12/01/2019
APD 32-2019, temporary amend filed 09/03/2019, effective 09/03/2019 through 02/24/2020
APD 31-2019, temporary amend filed 08/30/2019, effective 08/30/2019 through 02/24/2020
APD 26-2017, amend filed 11/16/2017, effective 12/15/2017
APD 16-2017(Temp), f. 6-27-17, cert. ef. 7-1-17 thru 12-27-17
APD 21-2015, f. 12-1-15, cert. ef. 12-27-15
APD 11-2015(Temp), f. 6-24-15, cert. ef. 7-1-15 thru 12-27-15
APD 38-2014, f. 12-16-14, cert. ef. 12-28-14
APD 19-2014(Temp), f. 6-26-14, cert. ef. 7-1-14 thru 12-28-14

Division 33 IN-HOME CARE AGENCIES PROVIDING MEDICAID IN-HOME SERVICES

Or. Admin. R. 411-033-0000 Purpose and Scope

The rules in OAR chapter 411, division 033 ensure in-home care agencies, as one of the Medicaid in-home service provider options, provide services to maximize independence, empowerment, dignity, and human potential through the provision of flexible, efficient, and suitable services. In-home services fill the role of complementing and supplementing an individual's personal abilities, so the individual is able to continue to live in their own home.

History

Statutory/Other Authority: ORS 409.050, 410.070, 410.090 & 413.085
Statutes/Other Implemented: ORS 410.010, 410.020, 410.070 & 413.085
APD 12-2017, f. & cert. ef. 5-30-17

Or. Admin. R. 411-033-0010 Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 033:

(1) "AAA" means "Area Agency on Aging" as defined in this rule.

(2) "Activities of Daily Living (ADL)" mean those personal, functional activities required by an individual for continued well-being, which are essential for health and safety. Activities include eating, dressing, grooming, bathing, personal hygiene, mobility (ambulation and transfer), elimination (toileting, bowel, and bladder management), cognition, and behavior as defined in OAR 411-015-0006.

(3) "ADL" means "activities of daily living" as defined in this rule.

(4) "Aging and People with Disabilities" means the program area of Aging and People with Disabilities, within the Oregon Department of Human Services.

(5) "APD" means "Aging and People with Disabilities".

(6) "Area Agency on Aging (AAA)" means the Department designated agency charged with the responsibility to provide a comprehensive and coordinated system of services to individuals in a planning and service area. The term Area Agency on Aging is inclusive of both Type A and Type B Area Agencies on Aging as defined in ORS 410.040 and described in ORS 410.210 to 410.300.

(7) "Assessment" means an assessment as defined in OAR 411-015-0008.

(8) "Background Check" means a criminal background check and an abuse check under OAR chapter 407, division 007.

(9) "Business Days" means Monday through Friday and excludes Saturdays, Sundays, and state or federal holidays.

(10) "CA/PS" means the "Client Assessment and Planning System" as defined in OAR 411-030-0020.

(11) "Case Manager" or "CM" means a Department employee or an employee of the Department's designee that meets the minimum qualifications in OAR 411-028-0040 who is responsible for service eligibility, assessment of need, offering service choices to eligible individuals, person-centered service planning, service authorization and implementation, and evaluation of the effectiveness of Medicaid home and community-based services.

(12) "Comprehensive" means a licensing classification that describes an agency that provides personal care services, which may include medication reminding, medication assistance, medication administration, and nursing services (see OAR 333-536-0007).

(13) "Consumer" means an individual eligible for in-home services.

(14) "Cost Effective" means being responsible and accountable with Department resources. This is accomplished by offering less costly alternatives when providing choices that adequately meet an individual’s service needs. Those choices consist of all available services under the Medicaid home and community-based service options, the utilization of assistive devices, natural supports, architectural modifications, and alternative service resources (see OAR 411-015-0005). Less costly alternatives may include resources not paid for by the Department.

(15) "Department" means the Oregon Department of Human Services (ODHS).

(16) "Enrolled In-Home Care Agency" means an incorporated entity or equivalent, licensed in accordance with OAR chapter 333, division 536 that provides hourly enrolled in-home services to individuals receiving services through the Department or the Area Agency on Aging.

(17) “Electronic Visit Verification” or “EVV” means that with respect to personal care services, a system under which visits conducted as part of such services are electronically verified at the time of service with respect to:

(a) The type of service performed.

(b) The individual receiving services.

(d) The location of service delivery.

(e) The individual providing the service.

(f) The time the service begins and ends.

(18) "Exception" means an approval for payment of a service plan that is granted to a specific individual that exceeds the assessed maximum hours of service as described in OAR 411-030-0070, for individuals residing in his or her own home.

(19) "Exceptional Rate" or "Exceptional Payment" means the amount paid to a provider based on the approval of an exception. The approval of an exception is based on the service needs of the individual and is contingent upon the individual's service plan meeting the requirements in OAR 411-027-0020, OAR 411-027-0025, and OAR 411-027-0050.

(20) "Homecare Worker" means a provider, as described in OAR 411-031-0040, that is directly employed by an individual to provide hourly services to the eligible individual. The term homecare worker does not include an employee of an in-home care agency who is providing in-home services.

(21) "Hourly Services" means the in-home services, including activities of daily living and instrumental activities of daily living, that are provided at regularly scheduled times, not including live-in services.

(22) "IADL" means "instrumental activities of daily living" as defined in this rule.

(23) "ICP" means "Independent Choices Program" as defined in this rule.

(24) "Independent Choices Program" means a self-directed in-home services program in which a participant is given a cash benefit to purchase goods and services identified in the participant's service plan and prior approved by the Department or the Area Agency on Aging.

(25) "Individual" means a person age 65 or older, or an adult with a physical disability, applying for or eligible for services.

(26) "In-Home Care Agency" or "IHCA" means an agency as defined in OAR 333-536-0005 that is primarily engaged in providing in-home care services for compensation to an individual in that individual's place of residence. "In-home care agency" does not include a home health agency or portion of an agency providing home health services.

(27) "In-Home Services" as defined in OAR 411-030-0002 mean the activities of daily living and instrumental activities of daily living that assist an individual to stay in his or her own home or the home of a relative.

(28) "In-Home Care Services" as defined in OAR 333-536-0005, means personal care services furnished by an in-home care agency, or an individual under an arrangement or contract with an in-home care agency, that are necessary to assist an individual in meeting the individual's daily needs, but do not include curative or rehabilitative services.

(29) "Initial Screening" means a screening required by the in-home care agency licensing rules in OAR 333-536-0055 that is conducted to evaluate a prospective client's service requests and needs prior to accepting the individual for service. The extent of the screening shall be sufficient to determine the ability of the agency to meet those requests and needs based on the agency's overall service capability.

(30) "Instrumental Activities of Daily Living (IADL)" mean those activities, other than activities of daily living, required by an individual to continue independent living. The definitions and parameters for assessing needs in IADL are identified in OAR 411-015-0007.

(31) "Liability" means the dollar amount an individual with excess income contributes to the cost of service pursuant to OAR 461-160-0610 and OAR 461-160-0620.

(32) "Licensed" means an in-home care agency as defined in OAR 333-536-0005 that is currently licensed, certified, or registered by the proper authority within the State of Oregon.

(33) "Mandatory Reporter" means all employees of an in-home health service, are required by statute (ORS 124.050 - 124.095) to report suspected abuse or neglect of a child, an older adult, a person with a physical disability or the resident of a licensed care facility, to the Department or to a law enforcement agency as required by OAR 411-020-0002.

(34) "Medicaid OHP Plus Benefit Package" means only the Medicaid benefit packages provided under OAR 410-120-1210(4) (a) and (b). This excludes individuals receiving Title XXI benefits.

(35) "Medicaid Performing Provider Number" means the numeric identifier assigned to an entity or person by the Department, following enrollment to deliver Medicaid funded services as described in these rules. The Medicaid Performing Provider Number is used by the rendering provider for identification and billing purposes associated with service authorizations and payments.

(36) "Natural Supports" or "Natural Support System" means resources and supports (e.g., relatives, friends, neighbors, significant others, roommates, or the community) who are willing to voluntarily provide services to an individual without the expectation of compensation. Natural supports are identified in collaboration with the individual and the potential "natural support". The natural support is required to have the skills, knowledge, and ability to provide the needed services and supports.

(37) "Nursing Services" means the provision of services that are defined in OAR 333-536-0005, that are deemed to be the practice of nursing as defined by ORS 678.010. These services include but are not limited to the delegation of specific tasks of nursing care to unlicensed persons in accordance with the Oregon State Board of Nursing rules in OAR chapter 851, division 047. Nursing services are not rehabilitative or curative but are maintenance in nature.

(38) "OHA" means the Oregon Health Authority.

(39) "Person-Centered Service Plan" means the details of the supports, desired outcomes, activities, and resources required for an individual to achieve and maintain personal goals, health, and safety, as described in OAR 411-004-0030. The case manager completes the person-centered service plan. The person-centered service plan is the Medicaid Plan of Care.

(40) "Personal Care Aid" means a person employed by an in-home care agency who provides assistance with activities of daily living or assistance with personal care tasks, household and supportive services, or medication services as authorized by OAR chapter 333 division 536.

(41)"Provider Enrollment Application and Agreement" refers to the conditions and agreements for being enrolled as a provider with the Oregon Department of Human Services, Aging and People with Disabilities (APD) or Office of Developmental Disability Services (ODDS), and to receive a provider number.

(42) "Rate Schedule" means the Medicaid reimbursement rate schedule maintained by the Department in OAR 411-027-0170.

(43) "Relative" means a person, excluding an individual's spouse, who is related to the individual by blood, marriage, domestic partnership, or adoption.

(44) "Representative" means a person either appointed by an individual to participate in service planning on the individual's behalf or an individual's natural support with longstanding involvement in assuring the individual's health, safety, and welfare. A representative may not be a paid employee or the in-home care agency.

(45) "Service Need" means the assistance an individual requires from another person for those functions or activities identified in OAR 411-015-0006 and OAR 411-015-0007.

(46) "Service Plan" means a written, individualized plan for the delivery of services by the IHCA, developed by the IHCA in conjunction with the individual or the individual's legal representative, the DHS or AAA case manager reflecting the individual's capabilities, choices, and if applicable, measurable goals, and managed risk issues. The service plan defines the division of responsibility in the implementation of the services. The service plan must incorporate all elements identified in the person-centered service plan for which the IHCA is responsible to deliver.

(47) "Spouse" means a person who is legally married to an individual as defined in OAR 461-001-0000.

(48) "These Rules" mean the rules in OAR chapter 411, division 033.

(49) "Work week" is defined as 12:00 a.m. on Sunday through 11:59 p.m. on Saturday.

History

Statutory/Other Authority: ORS 409.050, 410.070, 410.090 & 413.085
Statutes/Other Implemented: ORS 410.010, 410.020, 410.070 & 413.085
APD 9-2024, amend filed 03/25/2024, effective 03/28/2024
APD 17-2023, temporary amend filed 10/11/2023, effective 11/01/2023 through 04/28/2024
APD 12-2017, f. & cert. ef. 5-30-17

Or. Admin. R. 411-033-0020 In-Home Care Agency Services

(1) In-home care agency (IHCA) services are one of the in-home service options available for individuals eligible for Medicaid in-home services. The in-home care agency must be licensed in accordance with OAR chapter 333, division 536 or as a licensed home health agency that has obtained the in-home care service designation from the Oregon Health Authority according to ORS 443.305–443.355.

(2) Medicaid-funded in-home care services, provided by the in-home care agency, are not available to individuals who reside in a licensed or certified community based care setting or while inpatient in a hospital or nursing facility setting.

(3) Prior to accepting an individual for in-home care agency services, the IHCA must complete the initial screening to evaluate a prospective client's service requests as defined in OAR 333-536-0055.

(a) The IHCA shall notify the referring AAA or DHS office and individual or individual's representative via email or phone of acceptance for services. The IHCA shall begin services within five business days from the date of acceptance unless the individual's health and safety requires an earlier start date to be determined by the AAA or DHS case manager and communicated to the IHCA prior to acceptance.

(b) The case manager and IHCA must review the individual's person-centered service plan to assure the IHCA’s understanding of the individual’s service plan and assessed needs. Upon completion of case manager and IHCA review, the case manager shall draft a list of tasks based upon the person-centered service plan to be completed by the IHCA. This "task list" must be signed by the IHCA and returned to the CM.

(4) Services Provided.

(a) The services provided by the IHCA, in accordance with OAR 333-536-0045, must be based on the case manager's assessment and the person-centered service plan of the individual.

(b) Services must include the safe provision of:

(A) All assessed ADL supports;

(B) All assessed IADL supports; and

(C) Nursing services as required in the comprehensive certification in accordance with OAR chapter 333, division 536. The IHCA must ensure the services provided include medication reminding, medication assistance, medication administration, and nursing services in accordance with OAR chapter 333, division 536.

(c) If the individual requires nursing services, the IHCA must conduct nursing assessment, monitoring, intermittent nursing care, and teaching and delegation of specific tasks. Nursing services must be provided by an Oregon-licensed registered nurse in accordance with the Oregon State Board of Nursing Administrative Rules in OAR chapter 851, divisions 045, 047, and 048, and OHA, Public Health Administrative Rules in OAR chapter 333, division 536.

(d) For individuals accessing both IHCA and other in-home service options, the IHCA is only responsible for teaching and delegation to the IHCA employees. If other caregivers, who are not IHCA employees, are providing services and supports that require nurse delegation, the IHCA must coordinate delegation activities with other Department assigned nurses to ensure continuity of care.

(e) IHCA employees, caregivers, nursing staff, and administrators, must carry identification indicating their name and the name of the IHCA for which they work.

(f) The IHCA must ensure the individual is notified of any changes in the delivery of the IHCA’s service plan, such as a change in the personal care aid who provides the in-home service, the frequency of the service and the day and time when of the services will be provided in accordance with OAR 333-536-0060 Clients’ Rights and 333-536-0065 Service Plan.

(5) Complaints.

(a) In accordance to OAR 333-536-0042, any person may make a complaint verbally or in writing to the OHA Public Health Division regarding an allegation as to the care or services provided by an in-home care agency or violations of in-home care agency laws or regulations.

(b) Mandatory reporting. All employees of an in-home health service, which does include IHCA are required by statute (ORS 124.050–124.095) to report suspected abuse or neglect of a child, an older adult, a person with a physical disability or the resident of a licensed care facility, to the Department or to a law enforcement agency as required by OAR 411-020-0020.

(6) Disclosure Statements.

(a) As defined in OAR 333-536-0055, a written disclosure statement shall be signed by the individual or the individual's representative. The disclosure statement must be specific to the services provided to the Medicaid service individual.

(b) The disclosure statement must include the requirements of OAR 333-536-0055, in addition to all of the following:

(A) Medicaid is the source of payment for the services provided by the IHCA. The Medicaid service payment is considered full payment for Medicaid services provided by the IHCA.

(B) A description of the initial assessment and service planning process.

(C) A description of the services to be provided and how those services will be provided, including a discussion regarding staffing availability and coordination.

(D) IHCA and individual's rights and responsibilities.

(E) Individual's rights pertaining to notification of termination of services.

(F) The IHCA may not include any provision in the disclosure statement that effect individual's rights or the IHCA's liability for negligence.

(G) For individuals receiving IHCA services, as described in OAR 333-536-0045, the services provided must be in accordance with the Medicaid assessment and service plan and the IHCA’s written service plan developed in conjunction with an individual or individual's representative, based on the individual's or individual's representative's request, and an evaluation of the individual's physical, mental, and emotional needs.

(c) The disclosure statement for Medicaid individual’s may not include language referring to "buy outs" and "finder's fees", or include language preventing individuals from full access to other in-home services. IHCAs may not charge any Medicaid individual additional fees or penalties.

(7) BACKGROUND CHECKS. According to OAR 333-536-0093, the IHCA must:

(a) Ensure a criminal background check has been conducted on all individuals employed by, or volunteering for the IHCA who may have direct contact through a business relationship with the consumer.

(b) IHCAs receiving Medicaid reimbursement must conduct their background checks through the DHS Background Check Unit and comply with the DHS criminal records and abuse check rules found in OAR 407-007-0200 through 407-007-0370 and in accordance to the time frame specified in OAR 333-536-0093.

(A) Unless, based on possible criminal activity or other allegations against an IHCA employee, a new fitness determination is conducted resulting in a change in approval status; or

(B) The Department or AAA may request a recheck more frequently based on additional information discovered about an IHCA employee or volunteer, such as possible criminal activity or other allegations.

History

Statutory/Other Authority: ORS 409.050, 410.070, 410.090 & 413.085
Statutes/Other Implemented: ORS 410.010, 410.020, 410.070 & 413.085
Renumbered from 411-030-0090 by APD 12-2017, f. & cert. ef. 5-30-17
APD 12-2017, f. & cert. ef. 5-30-17
SPD 43-2013, f. 10-31-13, cert. ef. 11-1-13
SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13
SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09
SPD 13-2007, f. 8-31-07, cert. ef. 9-4-07
SPD 2-2007(Temp), f. & cert. ef. 3-30-07 thru 9-25-07
SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06
SPD 14-2003, f. & cert. ef. 7-31-03
SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93
Sunset on 09-28-2017
[SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93; SPD 14-2003, f. & cert. ef. 7-31-03; SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 2-2007(Temp), f. & cert. ef. 3-30-07 thru 9-25-07; SPD 13-2007, f. 8-31-07, cert. ef. 9-4-07; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13; SPD 43-2013, f. 10-31-13, cert. ef. 11-1-13; Renumbered to 411-033-0020 by APD 12-2017, f. & cert. ef. 5-30-17]

Or. Admin. R. 411-033-0030 Medicaid In-Home Care Agency Provider Enrollment, Requirements, and Payment

(1) PROVIDER ENROLLMENT.

(a) Application and Agreement. A provider must be an enrolled Medicaid provider in order to be eligible to receive payment from the Department for claims in connection with services provided by an IHCA.

(b) The criteria for provider enrollment includes, but is not limited to:

(A) Meeting all program-specific requirements;

(B) Providing a copy of the IHCA agency’s current OHA Public Health issued comprehensive classified license;

(D) Current Business registration and assumed business name (DBA), if applicable, with the Oregon Secretary of State's Corporations Division; and

(E) Completing a Medicaid Provider Enrollment Agreement.

(2) Staffing Requirements. According to OAR 333-536-0070, the agency owner or administrator shall ensure the agency has qualified and trained employees sufficient in number to meet the needs of the clients receiving services 365 days per year, including holidays.

(3) On-site Monitoring and Assessment.

(a) The IHCA shall provide to the Department or the AAA a quarterly summary report for each Medicaid individual, which includes documentation of client needs and services delivered. These records must be maintained by the IHCA to provide the records necessary to fully disclose the extent of the services, care, and supplies furnished to beneficiaries.

(b) The IHCA shall provide a copy of all information and documents as requested by the Department or the AAA. This requested information may include, but is not limited to:

(A) Individual records (OAR 333-536-0085).

(B) Individual nursing services (OAR 333-536-0080).

(D) Complaint investigation findings (OAR 333-536-0043).

(E) Organization, administration, and personnel records (OAR 333-536-0050).

(F) Individual surveys of services and payments (OAR 333-536-0041).

(G) The requested information shall be submitted to the Department or the AAA within five business days of the request. However, if the Department or AAA office indicates the request involves individual safety, well-being, or a protective service investigation, the information must be submitted within 24 hours of the request.

(c) The IHCA shall cooperate with any quality assurance visits regarding monitoring of any provision of IHCA services required by the Department.

(d) The IHCA shall participate in individual conferences with the Department or AAA case managers, as requested.

(4) Insurance Requirements. Insurance requirements are defined in the Provider Enrollment Agreement.

(5) Payment and Financial Reporting.

(a) The case manager shall authorize reimbursement for the service hours identified in the individual's Medicaid Management Information System (MMIS) plan of care.

(b) The IHCA shall comply with section 12006(a) of the 21st Century Cures Act using an electronic visit verification system that will verify, at the time of service, with respects to visits conducted as part of personal care services, the following:

(A) The type of service performed;

(B) The individual receiving the service;

(D) The location of the service delivery;

(E) The individual providing the service; and

(F) The time the service begins and ends.

(A) The consumer(s) name.

(B) The consumer(s) Medicaid prime number.

(D) The location service(s) were provided.

(E) The start and end time of service(s) provided.

(F) The service(s) provided.

(G) An attestation that all claims submitted met EVV requirements.

(d) The IHCA must use MMIS to submit claims for reimbursement of Medicaid authorized services. All claims must be submitted no later than 12 months from date of service.

(e) The IHCA shall be reimbursed --

(A) Only for services delivered to an individual.

(B) Only at the approved hourly rate for ADL and IADL services.

(D) For community transportation mileage related to an assessed ADL or IADL need (e.g., shopping). Reimbursement for community transportation may not include mileage for an employee commuting to and from the individual's home. The IHCA employee must maintain valid driver’s license, current vehicle registration and necessary auto insurance, if transporting the Medicaid individual. Proof must be available upon the request of the Department.

(f) IHCAs shall be reimbursed per the rates established in the rate schedule for home and community-based services in OAR 411-027-0170.

History

Statutory/Other Authority: ORS 409.050, 410.070, 410.090 & 413.085
Statutes/Other Implemented: ORS 410.010, 410.020, 410.070 & 413.085
APD 9-2024, amend filed 03/25/2024, effective 03/28/2024
APD 17-2023, temporary amend filed 10/11/2023, effective 11/01/2023 through 04/28/2024
APD 12-2017, f. & cert. ef. 5-30-17

Division 34 STATE PLAN PERSONAL CARE SERVICES

Or. Admin. R. 411-034-0000 Purpose

The rules in OAR chapter 411, division 034 ensure State Plan personal care services support and augment independence, empowerment, dignity, and human potential through the provision of flexible, efficient, and suitable services to individuals eligible for State Plan personal care services served through Aging and People with Disabilities. State Plan personal care services are intended to supplement an individual's own personal abilities and resources.

History

Statutory/Other Authority: ORS 409.050 & 410.070
Statutes/Other Implemented: ORS 410.020, 410.070 & 410.710
APD 57-2022, amend filed 12/22/2022, effective 12/23/2022
APD 28-2022, temporary amend filed 06/22/2022, effective 07/01/2022 through 12/27/2022
SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13
SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
Reverted to SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07
SPD 18-2010(Temp), f. & cert. ef. 7-29-10 thru 12-27-10
SPD 15-2010(Temp), f. & cert. ef. 6-30-10 thru 12-27-10
SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07
SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04
SSD 2-1996, f. 3-13-96, cert. ef. 3-15-96

Or. Admin. R. 411-034-0010 Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 034:

(1) “Activity of Daily Living (ADLs)” means those personal functional activities required by an individual for continued well-being, which are essential for health and safety. ADLs for these rules means Basic Personal Hygiene, Medication and Oxygen Management, Mobility, Toileting, Nutrition and Nursing Services.

(2) "Adult" means any person at least 18 years of age.

(3) "Alternative Service Resources" means other possible resources for the provision of services to meet an individual's needs. Alternative service resources include, but are not limited to, natural supports, risk intervention services, Older Americans Act programs, or other community supports. Alternative service resources are not paid by Medicaid.

(4) "Area Agency on Aging (AAA)" means the Department designated agency charged with the responsibility to provide a comprehensive and coordinated system of services to older adults and adults with disabilities in a planning and service area. The terms AAA and Area Agency on Aging are inclusive of both Type A and Type B Area Agencies on Aging as defined in ORS 410.040 and described in ORS 410.210 to 410.300.

(5) "Assistance" means an individual requires help from another person with the personal care or supportive services described in OAR 411-034-0020.

(6) “Assistance Types” mean assistance from another person in the form of hands-on assistance (actually performing a personal care task for a person) or cueing (redirecting) so that the person performs the task by themselves. Other types of assistance may be defined in specific ADLs or IADLs. Specific assistance types include:

(a) "Cueing" means giving verbal or visual clues during an activity to help an individual complete the activity without hands-on assistance.

(b) "Hands-on" means a provider physically performs all or parts of an activity because an individual is unable to do so.

(d) "Reassurance" means to offer an individual encouragement and support.

(e) "Redirection" means to divert an individual to another more appropriate activity.

(f) "Set-up" means getting personal effects, supplies, or equipment ready so that an individual may perform an activity.

(g) "Stand-by" means a provider is at the side of an individual ready to step in and take over the task if the individual is unable to complete the task independently.

(h) "Support" means to enhance the environment to enable an individual to be as independent as possible.

(8) "Assistive Supports" means the aid of service animals, general household items, or furniture used to assist and enhance an individual’s independence in performing any task described in OAR 411-034-0020.

(9) "Case Management" means the functions required to determine service eligibility, developing a plan of authorized services, and monitoring the effectiveness of services.

(10) "Case Manager" means a Department employee or an employee of the Department's designee who assesses the service needs of individuals, determines eligibility, and offers service choices to eligible individuals. A case manager authorizes and implements an individual's plan for services and monitors the services delivered.

(11) "Central Office" “CO” means the unit within the Department responsible for program and policy development and oversight.

(12) "Child" means an individual who is less than 18 years of age.

(13) “Cognition” refers to how the individual is able to use information, make decisions, and ensure their daily needs are met.

(14) "Community Developmental Disability Program (CDDP)" means the Department's designee that is responsible for plan authorization, delivery, and monitoring of services for individuals with intellectual or developmental disabilities according to OAR chapter 411, division 320.

(15) "Cost Effective" means being responsible and accountable with Department resources.

(16) "Delegated Nursing Task" means a registered nurse (RN) authorizes an unlicensed person (defined in OAR 851-047-0010) to provide a nursing task normally requiring the education and license of an RN.

(17) "Department" means the Oregon Department of Human Services.

(18) "Designee" means an organization with which the Department contracts or has an interagency agreement.

(19) "Developmental Disability" as defined in OAR 411-320-0020 and described in OAR 411-320-0080.

(20) "Disability" means a physical, cognitive, or emotional impairment which, for an individual, constitutes or results in a functional limitation in one or more of the activities of daily living in these rules.

(21) “Grocery Shopping” means Grocery Shopping - perform or assist individual in planning for and purchasing basic needs and household items.

(22) "Guardian" for the purpose of these rules means a person or agency appointed and authorized by the courts to make decisions about services for an individual.

(23) “Healthier Oregon” is an OHP Plus equivalent benefit (410-120-1210(4)(h)) for individuals described in 461-135-1080.

(24) "Homecare Worker" means a provider directly employed by an individual to provide hourly in-home services to the eligible consumer per the criteria in the CEP program described in OAR 411-031-0020.

(25) "In-Home Care Agency" means an incorporated entity or equivalent, licensed in accordance with OAR chapter 411, division 033 and chapter 333, division 536 that provides hourly contracted in-home services to individuals receiving services through the Department or Area Agency on Aging.

(26) "Individual" means the person applying for or determined eligible for State Plan personal care services.

(27) “Instrumental Activities of Daily Living (IADLs)” means certain day-to-day activities or tasks associated with an independent lifestyle. These are not considered to be essential for basic functioning but are regarded as important for maintaining day-to-day quality of life and relative independence. IADLs include housework, laundry, transportation, grocery shopping, using the telephone or other communication equipment, and money management.

(28) "Intellectual Disability" as defined in OAR 411-320-0020 and described in OAR 411-320-0080.

(29) "Legal Representative" means a person who has the legal authority to act for an individual. The legal representative only has authority to act within the scope and limits of his or her authority as designated by the court or other agreement. Legal representatives acting outside of his or her authority or scope must meet the definition of designated representative.

(a) For an individual under the age of 18, the parent, unless a court appoints another person or agency to act as the guardian.

(30) "Long Term Care Community Nursing" means the nursing services described in OAR chapter 411, division 048.

(31) "Natural Support" means resources and supports (e.g., relatives, friends, significant others, neighbors, roommates, or the community) who are willing to voluntarily provide services to an individual without the expectation of compensation. Natural supports are identified in collaboration with the individual and the potential "natural support". The natural support is required to have the skills, knowledge, and ability to provide the needed services and supports.

(32) "Older Adult" means any person at least 65 years of age.

(33) "Ostomy" means assistance that an individual needs with a colostomy, urostomy, or ileostomy tube or opening used for elimination.

(34) "Personal Care" means the functional activities described in OAR 411-034-0020(2) that an individual requires for continued well-being.

(35) "Provider" or "Qualified Provider" means a homecare worker that meets the qualifications in OAR chapter 418, division 020 or an In-Home Care Agency that meets the qualifications in OAR chapter 411, division 033 that performs State Plan personal care services.

(36) "Relative" means a person, excluding an individual's spouse, who is related to the individual by blood, marriage, or adoption.

(37) "Representative" means:

(a) A person appointed by an individual or legal representative to participate in service planning on the individual’s behalf that is either the individual's guardian or natural support with longstanding involvement in assuring the individual’s health, safety and welfare; and

(b) For the purpose of obtaining State Plan personal care services through a homecare or personal support worker, the person selected by an individual or the individual's legal representative to act on the individual's behalf to provide the employer responsibilities described in OAR 411-034-0040.

(38) "Respite" means services for the relief of a person normally providing supports to an individual unable to care for him or herself.

(39) "Service Need" means the assistance with personal care and supportive services needed by an individual receiving Department services.

(40) "Service Period" means two consecutive workweeks for a total of 14 days.

(41) "Service Plan" or "Service Authorization" means an individual's written plan for services that identifies:

(a) The individual's qualified provider who is to deliver the authorized services;

(b) The date when the provision of services is to begin; and

(c) The maximum hours per service period of personal care services authorized by the Department or the Department's designee.

(42) "State Plan Personal Care Services" means the assistance with personal care, ADLs and IADLs described in OAR 411-034-0020 provided to an individual by a homecare worker or In-Home Care Agency.

(43) "Sub-Acute Care Facility" means a care center or facility that provides short-term rehabilitation and complex medical services to an individual with a condition that does not require acute hospital care but prevents the individual from being discharged to his or her home.

(44) “Using the telephone” means assisting the individual in the use of any communication related technology.

(45) "These Rules" mean the rules in OAR chapter 411, division 034.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.020, 410.070, 410.710 & 411.675
APD 57-2022, amend filed 12/22/2022, effective 12/23/2022
APD 28-2022, temporary amend filed 06/22/2022, effective 07/01/2022 through 12/27/2022
APD 8-2018, amend filed 03/28/2018, effective 03/29/2018
APD 22-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 03/29/2018
APD 35-2014, f. & cert. ef. 10-1-14
APD 10-2014(Temp), f. & cert. ef. 5-1-14 thru 10-18-14
APD 9-2014(Temp), f. 4-17-14, cert. ef. 4-21-14 thru 10-18-14
SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13
SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 31-2010, f. 12-29-10, cert. ef. 1-1-11
SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07
SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04
SSD 2-1996, f. 3-13-96, cert. ef. 3-15-96

Or. Admin. R. 411-034-0020 State Plan Personal Care Services

(1) State Plan personal care services are essential services that enable an individual to move into or remain in their own home while also safely navigating their community. State Plan personal care services are provided in accordance with an individual's authorized plan for services by a qualified provider.

(a) State Plan personal care services are provided directly to an eligible individual and are not meant to provide respite or other services to an individual's natural support system. State Plan personal care services may not be implemented for the purpose of benefiting an individual's family members or the individual's household in general.

(b) State Plan personal care services are limited to 270 hours per calendar year per individual served by APD or an AAA.

(c) When an individual’s State Plan Personal Care service needs exceed the annual maximum of 270 hours an exception must be submitted.

(A) To submit an exception the Local Office (LO) must complete 514PC and submit to Central Office (CO) regardless of the number of hours requested.

(B) If an individual requests an exception, but their service plan does not exceed 270 hours annual the request for an exception may be approved or denied by the LO.

(C) CO has up to 45 days upon receipt of a completed exception request to determine whether an individual's assessed personal care needs warrant exceeding the service plan limitation.

(D) The individual shall receive written notice of the Department’s decision.

(2) Personal care services include:

(a) Activities of Daily Living (ADLs):

(A) Basic Personal Hygiene means performing or assisting with activities required to keep an individual healthy, appearance neat, combing/brushing hair, foot care, skin care, mouth care and oral hygiene, and include the following:

(i) Bathing means assisting the individual with cleansing the body, washing hair, shaving, nail care, and using assistive devices when necessary to get in and out of the bathtub or shower.

(ii) Dressing means assisting the individual with putting on, fastening, and taking off all items of clothing, braces, and artificial limbs, including obtaining and replacing items from their storage area in the immediate environment.

(B) Nutrition includes eating and meal preparation as defined below:

(i) Eating means assisting the individual in feeding or fluid intake by any means from a receptacle into the body. Includes monitoring to prevent choking or aspiration.

(ii) Meal preparation means performing or assisting with healthy meal planning and preparation, ensuring special diets are followed, if needed.

(C) Medication or Oxygen Management- assist with medications which are ordinarily self-administered. Includes setting up pill dispensing systems, administering medication, observation to ensure individual is taking medication as ordered, documenting and monitoring any notable side effects, and refilling prescriptions in a timely manner. Assist with use, maintenance, and cleaning of in-home oxygen equipment, monitoring client’s condition, ordering and maintaining necessary oxygen supplies.

(D) Mobility means assisting the individual with mobility, transfers and repositioning including turning or adjusting padding for physical comfort or pressure relief and encouraging or assisting with range of motion exercises and the use of devices that assist with mobility.

(E) Toileting means assisting the individual in getting to and from, on and off, the toilet, commode or bedpan for elimination of feces and urine. This includes cleansing after elimination and removing and adjusting clothing as necessary. It also includes Maintaining Continence as defined below:

(i) Catheter care including external cleansing of a catheter, emptying catheter drainage bag, changing external catheter supplies,

(ii) Maintenance bowel care,

(iii) Changing and replacing incontinence products,

(iv) Colostomy or ileostomy Care including, emptying bags, cleaning the stoma and other activities necessary for the safe maintenance and disposal of supplies; or

(v) Cueing to prevent incontinence.

(b) Instrumental Activities of Daily Living (IADLs)

(A) Housework means perform or assist with housekeeping tasks necessary to maintain the individual in a healthy and safe living environment. Only the housekeeping activities related to the eligible individual’s needs may be considered in housekeeping.

(B) Laundry- perform or assist with laundering or cleaning of clothing, bedding and other items used by the individual or on behalf of the individual.

(C) Transportation- assist individual in getting to and from necessary appointments and community activities through available means of transportation. This includes mileage reimbursement when community transportation is a required care need. Reasonable mileage reimbursement may only be authorized if the homecare worker or IHCA provider is using their own vehicle.

(D) Grocery Shopping- perform or assist individual in planning for and purchasing basic needs and household items.

(E) Using the Telephone- perform or assist individual in arranging necessary appointments and making desired phone calls or the use of other communication devices.

(F) Money Management- perform or assist with budgeting, making payments for monthly expenses and use of personal funds for desired items and activities.

(A) An individual may be physically capable of performing ADLs or IADLs but may have limitations in performing these activities because of a cognitive impairment. Personal care services may be required because a cognitive impairment prevents an individual from knowing when or how to carry out the task.

(B) In such cases, personal assistance may include cueing along with supervision to ensure that the individual performs the task properly.

(d) Delegated nursing tasks in accordance with OAR 851-047-0000, OAR 851-047-0010, and OAR 851-047-0030, the RN's written authorization of a delegated nursing task includes assessing a specific eligible individual, evaluating an unlicensed person's ability to perform a specific nursing task, teaching the nursing task, and supervising and re-evaluating the individual and the unlicensed person at regular intervals.

(e) Long Term Care Community Nursing as defined in OAR chapter 411 division 048.

(3) Payment may not be made for any of the following excluded services:

(a) Social companionship;

(b) Adult day services (described in OAR chapter 411, division 066),

(d) Care, grooming, or feeding of pets or other animals; or

(e) Yard work, gardening, or home repair.

History

Statutory/Other Authority: ORS 409.050 & 410.070
Statutes/Other Implemented: ORS 409.010, 410.020, 410.070 & 410.608
APD 57-2022, amend filed 12/22/2022, effective 12/23/2022
APD 28-2022, temporary amend filed 06/22/2022, effective 07/01/2022 through 12/27/2022
APD 8-2018, amend filed 03/28/2018, effective 03/29/2018
APD 22-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 03/29/2018
SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13
SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 31-2010, f. 12-29-10, cert. ef. 1-1-11
SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07
SPD 9-2005, f. & cert. ef. 7-1-05
SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04
SSD 2-1996, f. 3-13-96, cert. ef. 3-15-96

Or. Admin. R. 411-034-0030 Eligibility for State Plan Personal Care Services

(1) To be eligible for State Plan personal care services, an individual must:

(a) Be 18 years of age or older.

(b) Have a physical or cognitive impairment that requires the assistance from another person or delegated nursing services to complete at least one of the ADLs described in 411-034-0020(2)(a).

(2) An individual is not eligible to receive State Plan personal care services through APD if:

(a) The individual is receiving services from a licensed 24-hour residential services program (such as an adult foster home, assisted living facility, group home, nursing facility or residential care facility). Individuals in licensed care settings who meet the criteria for SPPC may receive Money Management Services;

(b) The individual is in a prison, hospital, sub-acute care facility, nursing facility, substance abuse treatment facility, state hospital or other medical institution. Individuals temporarily in an acute care hospital may continue to receive Money Management Services.;

(c) The individual's service needs are met through the individual's natural support system (defined in OAR 411-034-0010). Individuals excluded from SPPC because of natural supports but who meet the criteria for SPPC may receive Money Management Services;

(d) The individual's assessed service needs are being met under other Medicaid-funded home and community-based (HCBS) service options of the individual’s choosing. Individuals in other Medicaid funded HCBS service options who meet the criteria for SPPC may receive Money Management Services in addition to their other services.

(e) The individual’s primary driver of need is based on an intellectual or developmental disability, a mental illness or a substance use disorder.

(3) Payment for State Plan personal care services is not intended to replace the resources available to an individual from the individual's natural support system (defined in OAR 411-034-0010).

(4) State Plan personal care services may not be used to replace other non-Medicaid governmental services.

(5) The Department has the authority to close the eligibility and authorization for State Plan personal care services if an individual fails to:

(a) Employ a qualified provider; or

(b) Receive personal care from a qualified provider paid by the Department for 30 continuous calendar days or longer.

(6) State Plan personal care services must not duplicate other Medicaid services but may supplement other state plan or waivered services not otherwise provided in those programs.

History

Statutory/Other Authority: ORS 409.050 & 410.070
Statutes/Other Implemented: ORS 409.010, 410.020, 410.070, 410.608 & 410.710
APD 57-2022, amend filed 12/22/2022, effective 12/23/2022
APD 28-2022, temporary amend filed 06/22/2022, effective 07/01/2022 through 12/27/2022
APD 35-2014, f. & cert. ef. 10-1-14
APD 9-2014(Temp), f. 4-17-14, cert. ef. 4-21-14 thru 10-18-14
SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13
SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07
SPD 9-2005, f. & cert. ef. 7-1-05
SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04
SSD 2-1996, f. 3-13-96, cert. ef. 3-15-96

Or. Admin. R. 411-034-0035 Applying for State Plan Personal Care Services

(1) Individuals eligible for state plan personal care services as described in OAR 410-172-0790(1) must apply through the local community mental health program or agency contracted with Health Systems Division (HSD). An individual applying for State Plan personal care services that is not eligible for or receiving services through ODDS or APD is referred to the appropriate HSD office.

(2) An individual with an intellectual or developmental disability eligible for or receiving services through the Department's Office of Developmental Disabilities Services (ODDS), a Community Developmental Disability Program (CDDP), or Support Services Brokerage must apply for State Plan personal care services through the local CDDP or the local support services brokerage.

(3) An older adult or an adult with a disability eligible for or receiving case management services from the Department's Aging and People with Disabilities (APD) or Area Agency on Aging (AAA) must apply for State Plan personal care services through the local APD or AAA office.

(4) Individuals receiving benefits through the Department's Self-Sufficiency Programs (SSP) must apply for State Plan personal care services through the local APD or AAA office. APD/AAA is responsible for service assessment and for any planning and payment authorization for State Plan personal care services, if the applicant is determined eligible.

History

Statutory/Other Authority: ORS 409.050 & 410.070
Statutes/Other Implemented: ORS 410.020, 410.070, 410.608, 410.710 & 411.116
APD 57-2022, amend filed 12/22/2022, effective 12/23/2022
APD 28-2022, temporary amend filed 06/22/2022, effective 07/01/2022 through 12/27/2022
SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13
SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 31-2010, f. 12-29-10, cert. ef. 1-1-11
SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07
SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04

Or. Admin. R. 411-034-0040 Employer-Employee Relationship

(1) EMPLOYER RESPONSIBILITIES. An individual or the individual's representative must demonstrate the ability to:

(a) Locate, screen, and hire a qualified HCW or employ an IHCA;

(b) Supervise and train a HCW;

(d) Track the hours worked and verify the authorized hours completed by a provider;

(e) Recognize, discuss, and attempt to correct any performance deficiencies with the HCW or IHCA and provide appropriate, progressive, disciplinary action as needed; and

(f) Discharge an unsatisfactory provider.

(g) Abide by federal and state laws related to employer responsibilities, including ensuring the employee is not harassed.

(2) An eligible individual exercises control as the employer and directs the provider in the provision of the services. An individual who is unable or unwilling to act as an employer may select a licensed In-Home Care Agency (IHCA) who is enrolled as a Medicaid provider.

(3) The Department makes payment for State Plan personal care services to the provider on an individual's behalf. Payment for services is not guaranteed until the Department has verified that an individual's provider meets the qualifications in OAR chapter 418, division 020 or for an in-home care agency in chapter 411, division 033.

(4) ENDING CONSUMER-EMPLOYER RELATIONSHIP. Termination and the grounds for termination of employment are determined by an individual or the individual's representative. An individual has the right to terminate an employment relationship with a provider at any time and for any reason. An individual or the individual's representative must establish an employment agreement at the time of hire. The employment agreement may include grounds for dismissal, notice of resignation, work scheduling, and absence reporting.

(5) REPRESENTATIVE.

(a) The Department may require that an individual obtain a representative to act as the consumer-employer for service planning purposes.

(d) An individual with a guardian must have a representative to act as the consumer-employer and for service planning purposes. A guardian may designate themselves as the representative.

(e) A representative may not be a paid caregiver for the individual they are representing.

History

Statutory/Other Authority: ORS 409.050 & 410.070
Statutes/Other Implemented: ORS 410.020, 410.070, 410.608, 410.710 & 411.159
APD 57-2022, amend filed 12/22/2022, effective 12/23/2022
APD 28-2022, temporary amend filed 06/22/2022, effective 07/01/2022 through 12/27/2022
APD 8-2018, amend filed 03/28/2018, effective 03/29/2018
APD 22-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 03/29/2018
SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13
SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07
SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04

Or. Admin. R. 411-034-0050 Provider Qualifications

(1) To provide personal care services to an individual who qualifies for SPPC the provider must meet the qualifications of chapter 411, division 031 or be an employee of an IHCA meeting the criteria in chapter 411, division 033.

(2) To be in alignment with the provision of services, Money Management Services (MMS) providers must have an existing Oregon Money Management Program (OMMP) contract with the Department.

(a) The provider must be in compliance with SSA representative payee requirements.

(b) All staff and volunteers must pass a background check as defined in OAR chapter 407, division 007.

(d) Providers who fail to meet any of the above criteria will be denied or terminated at the Department’s discretion.

(3) Meals on Wheels (MOW) provider must meet qualifications in OAR chapter 411, division 040 (https://www.oregon.gov/DHS/SENIORS-DISABILITIES/SPPD/APDRules/411-040.pdf).

(4) Long Term Care Community Nursing must meet criteria defined in OAR chapter 411, division 048.

History

Statutory/Other Authority: ORS 409.050 & 410.070
Statutes/Other Implemented: ORS 409.010, 410.020, 410.070 & 410.608
APD 57-2022, amend filed 12/22/2022, effective 12/23/2022
APD 28-2022, temporary amend filed 06/22/2022, effective 07/01/2022 through 12/27/2022
SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13
SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07
SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04
SSD 2-1996, f. 3-13-96, cert. ef. 3-15-96

Or. Admin. R. 411-034-0070 State Plan Personal Care Service Assessment, Authorization, and Monitoring

(1) PERSONAL CARE ASSESSMENT. The assessment process identifies an individual's ability to perform ADLs, IADLs, and determines an individual's ability to address health and safety concerns.

(a) A case manager must meet in person with an individual to assess the individual's ability to perform the personal care tasks listed in OAR 411-034-0020 at least once every calendar year (365 days).

(b) The individual may request that others participate in the assessment process.

(c) A case manager must consider an individual’s service needs, identify the resources meeting any of the individual's needs, and determine if the individual is eligible for State Plan personal care services or other services.

(2) SERVICE PLANNING.

(a) An individual determined eligible for Personal Care services, or the individual’s representative and the individual's case manager, must consider all available service options as well as assistive devices and other community-based resources to meet the service needs identified during the assessment process.

(b) The individual or the individual's representative is responsible for choosing and assisting in developing less costly service alternatives.

(c) A case manager must, in collaboration with the individual, prepare a service plan identifying the tasks for which an individual requires assistance and the number of authorized service hours per service period.

(d) When developing service plans, a case manager must consider the cost effectiveness of services that adequately meet the individual’s service needs.

(A) This is accomplished by offering less costly alternatives when providing choices that adequately meet an individual’s service needs.

(B) Those choices consist of all available service options, the utilization of assistive devices or assistive supports, natural supports, architectural modifications, and alternative service resources. Less costly alternatives may include resources not paid for by the Department.

(e) A case manager must document an individual's natural supports that currently meet some or all of the individual's personal care needs.

(f) A case manager must describe in the service plan the tasks to be performed by a qualified provider and must authorize the needed hours per service period that may be reimbursed for those services.

(g) A case manager must monitor the service plan and make adjustments as needed.

(h) Payment for State Plan Personal Care services must be prior authorized by a case manager and based on the service needs of an individual as documented in the individual's written service plan.

(3) SERVICE AUTHORIZATION. A case manager may authorize the following services if the individual has an assessed need though the Personal Care Assessment:

(a) Service plan hours for ADL and IADL needs;

(b) Mileage reimbursement;

(d) Home Delivered Meals; and

(e) Money Management Services

(4) ONGOING MONITORING.

(a) When there is an indication that an individual's personal care needs have changed, a case manager must conduct an in-person re-assessment with the individual and any of the individual's natural supports if requested by the individual.

(b) Following re-assessments a case manager must review service eligibility, the cost effectiveness of the individual's service plan, and whether the services provided are meeting the identified service needs of the individual. The case manager may adjust the hours or services in the individual's service plan and must authorize a new service plan, if appropriate, based on the individual's current service needs.

(c) A case manager must provide ongoing coordination of State Plan personal care services, including authorizing changes in providers and service hours, addressing risks, and monitoring and providing information and referral to an individual when indicated.

(5) UNAUTHORIZED SERVICE SETTINGS AND PROVIDERS.

(a) The Department may not authorize services within an eligible individual’s home when --

(A) The individual's home has dangerous conditions that jeopardize the health or safety of the individual or provider and necessary safeguards cannot be taken to improve the setting;

(B) The services cannot be provided safely or adequately by a provider;

(C) The eligible individual does not have the ability to make an informed decision, does not have a designated representative to make decisions on his or her behalf, and necessary safeguards cannot be provided to protect the safety, health, and welfare of the individual.

(b) A case manager must present an individual or the individual’s representative with information on service alternatives and provide assistance to assess other choices when a provider or service setting selected by the individual or the individual’s representative is not authorized.

History

Statutory/Other Authority: ORS 409.050 & 410.070
Statutes/Other Implemented: ORS 409.010, 410.020, 410.070, 410.608 & 410.710
APD 57-2022, amend filed 12/22/2022, effective 12/23/2022
APD 28-2022, temporary amend filed 06/22/2022, effective 07/01/2022 through 12/27/2022
APD 8-2018, amend filed 03/28/2018, effective 03/29/2018
APD 22-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 03/29/2018
SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13
SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07
SPD 9-2005, f. & cert. ef. 7-1-05
SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04
SSD 2-1996, f. 3-13-96, cert. ef. 3-15-96

Or. Admin. R. 411-034-0090 Payment Limitations

(1) The maximum allowed hours for State Plan personal care services are limited to 270 hours per calendar year for individuals served by APD or a AAA.

(a) Individuals whose assessed service needs exceed the maximum allowed hours for State Plan personal care services in a service period may request additional hours through the exception process described in this rule. The Department Central Office may approve or deny the requests based on analysis of the individual’s need and criteria for an exception.

(b) State Plan personal care service hours are authorized in accordance with an individual's service plan and may be scheduled throughout the service period to meet the service needs of the individual.

(2) Authorized LTC community nurse assessment and monitoring services are not included in the maximum hours per service period for State Plan personal care services described in section (1) of this rule.

(3) The Department does not guarantee payment for State Plan personal care services until all acceptable provider enrollment standards have been verified and both the employer and provider have been formally notified in writing that payment by the Department is authorized.

(4) In accordance with OAR 410-120-1300, all provider claims for payment must be submitted within 12 months of the date of service.

(5) Payment may not be claimed by a provider until the hours authorized for the payment period have been completed, as directed by an eligible individual or the individual's representative.

(6) Claims for Money Management may only be made by qualified money management service providers and are not included in the 270-hour limitation.

(7) Claims for Home Delivered Meals may only be made by qualified HDM providers and are not included in the 270-hour limitation.

(8) Nursing Services may only be made by licensed and enrolled long term care community nurses and the hours authorized for this service are not included in the 270 hour limitation.

History

Statutory/Other Authority: ORS 409.050 & 410.070
Statutes/Other Implemented: ORS 410.020, 410.070, 410.710, 411.159 & 411.675
APD 57-2022, amend filed 12/22/2022, effective 12/23/2022
APD 28-2022, temporary amend filed 06/22/2022, effective 07/01/2022 through 12/27/2022
APD 8-2018, amend filed 03/28/2018, effective 03/29/2018
APD 22-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 03/29/2018
SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13
SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07
SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04
SSD 2-1996, f. 3-13-96, cert. ef. 3-15-96

Or. Admin. R. 411-034-0091 Exceptions to Maximum Hours of Service

(1) Eligibility for SPPC Exceptions to Maximum Hours of Service.

(a) If the Department determines the individual’s assessed service needs will not be met within the maximum 270 annual hours as set forth in Oregon’s Medicaid State Plan the individual may receive an exception to the maximum annual hours.

(b) The Department may deny an exception if the request is:

(A) Based on a request for services outside of assessed service needs.

(B) Not medically appropriate.

(D) For services not covered in the Medicaid State Plan, OAR 411-034-0020(2).

(E) For tasks not identified in OAR 411-034-0020(2).

(c) An exception is valid for the period determined by the case manager and communicated to the individual in the notice, not to exceed one calendar year.

(d) If an individual has an existing approved SPPC exception, a new request must be submitted after the annual assessment is completed and will be reviewed prior to the exception end date. If the individual requests the same or fewer exception hours, a decision to renew the exception may be made if section (3)(d) of this rule is not met. The case manager may supply the required documentation as outlined in section (4) of this rule.

(e) Exceptions may be reviewed at reassessments, change of care setting or living situations, or change of conditions.

(2) Responsibility for Applying for an SPPC Exception.

(c) If the individual’s case manager assesses or is notified by others with knowledge of the individual’s needs, that the individual’s needs exceed the maximum hours, the case manager must work with the individual to determine the appropriate number of hours and submit an exception application.

(3) Exception Application Process.

(a) An individual may apply for a SPPC exception, described in section (2) of this rule, either by completing:

(A) A SPPC exception application form, available from the case manager, and providing any information that supports the request for additional hours; or

(B) By requesting that their case manager complete the SPPC exception application form on their behalf; or

(b) Prior to processing an application for a SPPC exception, the case manager must discuss alternate ways to meet the individual’s needs consistent with the individual’s right to independence, choice, and responsibility to assist in developing the less costly plan as described in OAR 411-034-0010(15) and 411-034-0070(2)(d). Additionally, the case manager must assess if the individual is eligible for services through any other Medicaid program that provides the supports the individual needs.

(d) The Exception Application Form, regardless of who completes the form, must be signed by the individual or their representative in order for the application to be reviewed.

(e) The CA/PS assessment must have been completed within three months before the SPPC exception request, and it must represent the individual’s current condition and functioning.

(f) If the individual's application for an exception is not within the timeframe noted in subsection (e), a new assessment must be completed to document current needs. ODHS Central Office may waive this requirement in special circumstances which must be documented in the individual’s application.

(g) If the wait for a new assessment threatens the health, safety, or welfare of the individual, as determined by the Department, the Department shall waive the three-month requirement in subsection (e) of this rule.

(h) The Exception Application Request must clearly describe:

(A) The frequency per day, week or month an individual requires assistance from another person to complete personal care needs described in 411-034-0020(2). This includes personal care needs that occur regularly but on an unpredictable schedule.

(B) The duration needed to complete personal care tasks described in 411-034-0020(2).

(C) The number of providers needed for each task and, if applicable, an explanation of why the task requires more than one provider.

(D) An explanation of why less costly options, including the maximum allowable hours, will not meet the personal care needs in 411-034-0020(2).

(E) Any additional information that may assist the reviewer in understanding the need for exceptional hours.

(i) The Exception Application Form shall include an attestation that all the information is accurate and truthful.

(j) The individual, or their representative, is responsible for ensuring that sufficient documentation is provided. A case manager shall assist the individual in collecting the requested documentation. If the requested documentation is not provided to the Department may issue an exception denial.

(4) Required Documentation.

(a) All Exception applications must include the SPPC Exception Application Form. The form must be complete, signed by the individual or their representative, and accurate.

(b) To support the application, the Department may require the individual, or their representative, to provide further documentation during the Exception decision making process. This documentation, in addition to the SPPC Exception Application Form, may include, but is not limited to:

(A) A SPPC Exception Calculator, which will be provided by the Department.

(B) Care provider logs detailing the performance of all personal care tasks defined in 411-034-0020(2) for one complete pay period. The log shall include the name of the personal care task, the actions required to complete the task, and the duration of the task.

(C) Any relevant medical or mental health records to support the additional time requested to complete personal care needs.

(5) Exception Decision Making Authority.

(a) ODHS Central Office shall make final decisions on exception requests that exceed the maximum allowable hours in 411-034-0090(1).

(b) Local office management may deny an application for exceptional hours if, after review, it is determined there is clear and convincing evidence that the individuals care needs do not exceed the maximum allowable hours in 411-034-0090(1).

(c) If the exception application does not meet the criteria in (5)(b) of this section, local office management must submit the exception application to ODHS CO within three business days of receipt of the completed application.

(d) ODHS CO has 30 days from the date the local office manager submits the exception request to ODHS CO.

(A) In emergency situations that threaten the health, welfare or safety of the individual, ODHS CO will make a decision within two business days of receipt of the application. ODHS CO may elect to make a decision without all of the required documentation. Any emergent approvals end the last day of the next period after which the emergency occurred.

(B) If ODHS CO determines that it needs additional information, ODHS CO will notify the case manager or local office manager in writing within three business days of receipt of the application. The case manager, or local office manager must notify the individual, or their representative, within two business days that additional information is needed.

(e) The individual, or their representative, or case manager must provide the requested information to ODHS CO within 14 days of the Department’s request. The request for additional information will specify the due date and explain how to submit the required information.

(A) ODHS CO has 14 days from the date of receipt of the additional information to make a determination.

(B) If the individual fails to provide the requested information within the required timeframe, ODHS CO will complete the review based on the documentation in its possession. ODHS CO has 14 days from the date of the individual’s deadline for additional information to complete its review.

(D) If the individual submits the required documentation after the 14-day timeframe, the individual may request an extension for good cause and request that the ODHS CO issue a revised decision. ODHS CO will review the request and make a determination within 3 business days regarding good cause.

(E) The individual may request a good cause extension prior to the expiration of 14-day timeframe by requesting it via their case manager.

(F) Good cause exists when an action, delay, or failure to act arises from an excusable mistake or from factors beyond an individual’s reasonable control.

(f) For each Exception Application:

(A) If the Department determines that the documentation supports the requested additional hours over the maximum for the specific personal care needs, the exception will be granted.

(B) If the Department determines that the documentation supports additional hours but not as many hours as requested or for the timeframe requested, the exception will be “partially denied” and only those additional hours supported by the documentation will be granted.

(C) If the Department determines that the documentation does not support any additional hours over the maximum, the exception application will be denied.

(D) If ODHS denies any portion of an Exception Application the individual, or their representative, may request a hearing.

(6) Exception Application Reviews and Decision Making

(a) All exception applications must be for services that meet the definitions of personal care services and associated assistance types defined in 411-034-0020.

(b) Exception approvals are effective no earlier than the date the Exception Application is requested by the individual and received by the case manager and the Medicaid approved provider has been authorized to work. If these do not occur on the same date, the later date is the effective date.

(A) SPPC Assessment Synopsis;

(B) CA/PS Assessment Comments;

(D) Diagnosis that may drive care needs;

(E) Medical documentation supporting the way services are being provided to meet the personal care needs of the individual;

(F) Medical documentation, including those from the Long-Term Care Community Nurse or Behavior Support Specialists, that shows that the allowable hours are not meeting the individual’s personal care needs;

(G) The change or cause driving increased duration and frequency; and

(H) Other available information explaining or related to the need for additional hours.

(d) To determine the appropriate number of exception hours, the Department shall review:

(B) The duration needed to complete personal care tasks described in 411-034-0020(2).

(D) The reasons driving the increased duration and frequency.

(E) The complexity of the individual’s care needs.

(F) Whether denying the exception would put the individual at risk of placement out of home if the individual prefers to live in their own home.

(G) Whether or not denying the exception would result in substantial unmet needs of the individual.

(e) The Department may reduce the requested exceptional hours if the individual’s personal care needs are already met by:

(A) Natural supports as defined in OAR 411-034-0010(29);

(B) Durable Medical Equipment, assistive devices or other assistive technology;

(D) Home and Environmental Modifications;

(E) Other supports that replace the need for human assistance as determined on a case-by-case basis consistent with individual choice;

(f) The Department may reduce requested hours if:

(A) The requested hours are not for personal care needs defined in 411-034-0020(2); or

(B) The information regarding how services are provided is determined to be not medically appropriate or necessary.

(7) NOTIFICATION.

(a) The Department shall notify the individual about the outcome of the exception request in the notice of hours authorization decision, or an amended notice, if appropriate.

(b) Notification shall include:

(A) The name of the person who applied for exceptional service hours.

(B) The date the request was approved or denied.

(D) A summary of the reasons why the exceptional hours requested were approved, partially denied, or denied.

(E) The duration of the exception.

(F) Hearing rights and what to do if the individual does not agree with the decision.

(8) EXCEPTION DECISION AUTHORITY. The final decision may be made by the local office or ODHS CO when the exception application does not exceed the total 270 annual hour maximum defined in OAR 411-034-0090(1).

History

Statutory/Other Authority: ORS 409.050 & 410.070
Statutes/Other Implemented: ORS 410.020, 410.070, 410.608, 410.710 & 411.116
APD 57-2022, adopt filed 12/22/2022, effective 12/23/2022
APD 28-2022, temporary adopt filed 06/22/2022, effective 07/01/2022 through 12/27/2022

Division 35 K-STATE PLAN ANCILLARY SERVICES

Or. Admin. R. 411-035-0000 Purpose

(1) These rules ensure individuals served by the Department of Human Services, Aging and People with Disabilities program have equal access to required and optional K-State Plan services that are not defined in other rules in OAR chapter 411. The services in these rules are intended to assist and empower an eligible individual to maximize their independence, dignity, and human potential through the provision of flexible, efficient, and suitable services.

(2) Services described in these rules include:

(a) Backup Systems and Assistive Technology.

(b) Chore Services.

(d) Transition Services.

(e) Voluntary Consumer Training.

(3) Payments for the services in these rules are limited to the lowest possible cost which will adequately meet the individual's minimum necessary needs.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 409.050, 410.040, 410.090, 410.210 to 410.300 & 441.520
APD 34-2019, amend filed 09/27/2019, effective 10/01/2019
APD 39-2016, f. 9-27-16, cert. ef. 10-1-16
APD 16-2014, f. & cert. ef. 6-4-14

Or. Admin. R. 411-035-0010 Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 035:

(1) "Activities of Daily Living (ADL)" mean those personal, functional activities required by an individual for continued well-being, which are essential for health and safety. Activities include eating, dressing and grooming, bathing and personal hygiene, mobility, elimination, and cognition as defined in OAR 411-015-0006.

(2) "Aging and People with Disabilities (APD)" refers to the program within the Department of Human Services primarily responsible for service seniors and people with disabilities.

(3) "Alert Systems" means a unit that is worn by the individual or is located in the individual's home for the purpose of generating notification that an emergency has or may occur.

(4) "Area Agency on Aging (AAA)" means the Department designated agency charged with the responsibility to provide a comprehensive and coordinated system of services to older adults or individuals with disabilities in a planning and service area. The term Area Agency on Aging is inclusive of both Type A and Type B Area Agencies on Aging as defined in ORS 410.040 and described in ORS 410.210 to 410.300.

(5) "Assistive Technology" means equipment that provides additional security and support to an individual and replaces the need for human interventions. Assistive technologies enable an individual to self-direct their care and maximize their independence.

(6) "Back-up systems" mean devices, which secure help in emergencies, safety in the community, or are other reminders that help an individual with activities, including, but not limited to, medication management, eating, or other types of monitoring.

(7) "Case Manager" means an employee of the Department or AAA who assesses the service needs of an individual, determines eligibility, and offers service choices to the eligible individual. The case manager authorizes and implements an individual's service plan, and monitors the services delivered as described in OAR chapter 411, division 028.

(8) "Central Office" means the unit within the Department responsible for program and policy development and oversight.

(9) "Chore Services" means specific services intended to ensure the individual's home is safe and allows for independent living.

(10) "Consumer" or "Consumer-Employer" means the person applying for or eligible for Medicaid home or community-based services.

(11) "Cost Effective" means being responsible and accountable with Department resources by offering less costly alternatives when providing choices that adequately meet an individual's service needs. Less costly alternatives include resources not paid for by the Department, other programs available from the Department, the utilization of assistive devices, natural supports, architectural modifications, and alternative service resources (defined in OAR 411-015-0005).

(12) "Department" means the Department of Human Services (DHS).

(13) "Durable Medical Equipment" means an apparatus, such as a walker, which is primarily used to serve a medical purpose and is appropriate to use in the individual's home.

(14) "Environmental Modifications" means the changes made to adapt living spaces to meet specific service needs of eligible individuals with physical limitations to maintain their health, safety, and independence.

(15) "Exception" means the individual has service needs above the limits described in these rules, and documented in the assessment and service plan that warrant an exception for payment.

(16) "Individual" means a person 65 or older, or an adult with a physical disability, applying for or eligible for services.

(17) "In-Home Services" mean the activities of daily living and instrumental activities of daily living that assist an individual to stay in his or her own home or the home of a relative.

(18) "Instrumental Activities of Daily Living (IADL)" means those activities other than the activities of daily living, required by an individual to continue independent living. The definitions and parameters for assessing needs in IADL are identified in OAR 411-015-0007.

(19) "Long-Term Care" means the Medicaid system through which the Department provides nursing facility, community-based, and in-home services to eligible adults who are aged, blind, or have physical disabilities.

(20) "Medication Reminders" are devices used for the purpose of prompting an individual to take their medication.

(21) "Natural Supports" means resources and supports (e.g. relatives, friends, neighbors, significant others, roommates, or the community) who are willing to voluntarily provide services to an individual without the expectation of compensation. Natural supports are identified in collaboration with the individual and the potential "natural support". The natural support is required to have the skills, knowledge, and ability to provide the needed services and supports.

(22) "Person-centered Assessment and Service Plans" means:

(a) A process, either formal or informal, for gathering and organizing information that helps an individual:

(A) Determine and describe choices about personal goals, activities, and lifestyle preferences;

(B) Design strategies and networks of support to achieve goals and a preferred lifestyle using individual strengths, relationships, and resources; and

(b) The methods for gathering information vary, but all are consistent with individual needs and preferences.

(23) "Personal Emergency Response Systems" mean a type of electronic back-up system that:

(a) Secures help for individuals in an emergency;

(b) Ensures a consumer's safety in the community; and

(c) Includes other reminders that help an individual with their activities of daily living and instrumental activities of daily living.

(24) "Rate Schedule" means the rate schedule maintained by the Department in OAR 411-027-0170 and at http://www.dhs.state.or.us/spd/tools/program/osip/rateschedule.pdf.

(25) "Representative" means a person with longstanding involvement in assuring the individual's health, safety, and welfare that is appointed by an individual to participate in service planning on the individual's behalf. In all cases, unless the individual is incapable, the individual's consent is obtained before designating a representative on the individual's behalf. When feasible, the individual's authorization of a representative is made in writing or by another method that clearly indicates the individual's free choice. An individual's representative is not a paid provider to an individual receiving services and supports.

(26) "Service Need" means the assistance an individual requires from another person, or equipment that replaces the need for another person, for those functions or activities.

(27) "These Rules" mean the rules in OAR chapter 411, division 35.

(28) "Transition Services" means those services and supports necessary for an individual to transition from a nursing facility or the Oregon State Hospital to a community-based care or in-home setting.

(29) "Voluntary Consumer Training Services" means activities to empower and inform individuals receiving in-home services regarding their rights, role, and responsibilities as employers of care providers.

History

Statutory/Other Authority: ORS 410.070 & ORS 409.050
Statutes/Other Implemented: ORS 409.050, 410.040, 410.090, 410.210 - 410.300 & 441.520
APD 34-2019, amend filed 09/27/2019, effective 10/01/2019
APD 39-2016, f. 9-27-16, cert. ef. 10-1-16
APD 7-2015, f. 3-4-15, cert. ef. 3-9-15
APD 36-2014(Temp), f. & cert. ef. 11-10-14 thru 5-8-15
APD 16-2014, f. & cert. ef. 6-4-14

Or. Admin. R. 411-035-0015 Eligibility for Supplemental K State Plan Services

To be eligible for any Medicaid Supplemental K State Plan services defined in this division, consumers must:

(1) Be eligible for Medicaid long term care services and supports as described in OAR 411-015-0010 through 411-015-0100.

(2) Not have natural supports or other services available in the community that would meet the identified need.

(3) Not be eligible for the item through Medicare, other Medicaid programs, or other medical coverage.

(4) Have an identified need in their person-centered service plan that:

(a) Supports the desires and goals of the consumer receiving services and increases a consumer's independence;

(b) Reduces a consumer's need for assistance from another person; or

(5) Be provided the choice to accept or deny the service being offered.

(6) Have a completed service assessment that reflects the current needs of the consumer.

(7) To be considered an eligible request, when possible, three bids are required from providers. Consumers should work with their case manager to obtain bids. Bids may not include comparative pricing done through the internet. Bids are required for:

(a) Assistive Technology;

(b) Chore Services;

(d) Transition Services - Moving Costs.

History

Statutory/Other Authority: 410.070 & ORS 409.050
Statutes/Other Implemented: ORS 409.050, 410.040, 410.090, 410.210 to 410.300 & 441.520
APD 34-2019, amend filed 09/27/2019, effective 10/01/2019
APD 9-2015, f. 3-30-15, cert. ef. 4-3-15
APD 49-2014(Temp), f. 12-30-14, cert. ef. 1-1-15 thru 6-29-15
APD 16-2014, f. & cert. ef. 6-4-14

Or. Admin. R. 411-035-0020 (Reserved)

Text available via filing PDF that is stored in ORMS

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 409.050, 410.040, 410.090, 410.210 to 410.300 & 441.520
APD 16-2014, f. & cert. ef. 6-4-14

Or. Admin. R. 411-035-0025 Eligibility for Consumer Electronic Back-up Systems and Assistive Technology

(1) To be eligible for electronic back-up systems or mechanisms, a consumer must not be receiving community-based care in a licensed care setting.

(2) Electronic back-up systems and assistive technologies must be appropriate and cost effective to meet the service needs of the consumer and:

(a) For new equipment:

(A) Are limited to a maximum of $5000 for purchasing of a device.

(B) All requests over $500 must be approved by designated Central Office staff.

(b) For repairs:

(A) Repair of purchased devices may be done if the repair is more cost effective than purchasing a new device.

(B) This may include electric wheelchair or scooter battery replacement if denied by Medicare or the Medicaid State Plan.

(d) For Personal Emergency Response Systems (ERS):

(A) ERS services may include either basic ERS or enhanced ERS services and must be appropriate for the individual’s needs.

(B) Monthly rentals or lease fee limits are posted on the APD rate table.

(e) For Assistive Technology: Expenditures over $500 must be approved by designated Central Office staff.

History

Statutory/Other Authority: ORS 410.070 & ORS 409.050
Statutes/Other Implemented: ORS 409.050, 410.040, 410.090, 410.210 - 410.300 & 441.520
APD 34-2019, amend filed 09/27/2019, effective 10/01/2019
APD 9-2015, f. 3-30-15, cert. ef. 4-3-15
APD 49-2014(Temp), f. 12-30-14, cert. ef. 1-1-15 thru 6-29-15
APD 16-2014, f. & cert. ef. 6-4-14

Or. Admin. R. 411-035-0030 Eligible Electronic Back-up Systems and Assistive Technology Services

(1) Electronic Back-up Systems and Assistive Technology services must:

(a) Ensure continuity of services and support the health, welfare, and safety of the consumer;

(b) Enable the consumer to function with greater independence; or

(2) Electronic Back-up systems and supports may be allowed as long as the system sufficiently meets the need of the consumer being served.

(3) Consumers with an assessed need qualify for electronic back-up systems, including but not limited to:

(a) Personal Emergency Response Systems;

(b) Medication reminders;

(d) Mechanisms, and any specialized or durable medical equipment, necessary to support the consumer’s health or well-being.

(4) Consumers with an assessed need qualify for Assistive Technology including, but not limited to:

(a) Motion sensors;

(b) Sound sensors;

(d) Automatic faucets;

(e) Soap dispensers;

(f) Toilet flushing sensors;

(g) Incontinent sensors;

(h) Fall sensors;

(i) Lift chairs;

(j) Transfer poles;

(k) Wandering alerts; and

(l) Other technology, which may be approved on a case-by-case basis with Central Office approval.

History

Statutory/Other Authority: ORS 410.070 & ORS 409.050
Statutes/Other Implemented: ORS 409.050, 410.040, 410.090, 410.210 to 410.300 & 441.520
APD 34-2019, amend filed 09/27/2019, effective 10/01/2019
APD 16-2014, f. & cert. ef. 6-4-14

Or. Admin. R. 411-035-0035 Provider Qualifications and Requirements for Electronic Back-up Systems and Assistive Technology

(1) Companies providing back-up support or back-up systems must have a Medicaid provider number before providing services.

(2) No monetary funds shall be released for installation of electronic back-up systems or assistive technology to the provider until the work is finished and is functioning as expected.

(3) Payment for on-going electronic back-up systems or assistive technology must be paid to providers after the consumer receives the service each month.

(4) Upon delivery, providers must ensure:

(a) The product is functioning correctly;

(b) The product properly fits the consumer; and

(5) Providers must supply a revised bid when requested by designated Central Office staff.

(6) Providers must submit the final invoice for payment within one year of the date of service.

History

Statutory/Other Authority: ORS 410.070 & ORS 409.050
Statutes/Other Implemented: ORS 409.050, 410.040, 410.090, 410.210 to 410.300 & 441.520
APD 34-2019, amend filed 09/27/2019, effective 10/01/2019
APD 16-2014, f. & cert. ef. 6-4-14

Or. Admin. R. 411-035-0040 Eligibility Criteria for Chore Services

(1) To be eligible for chore services, a consumer must not be receiving community-based care in a licensed care setting and must meet the requirements in OAR 411-030-0033.

(2) An eligible consumer may receive chore services if any of the following are true:

(a) The consumer needs garbage pick-up and removal, or payment of previous garbage bills, to continue or resume receiving garbage services and to ensure the home is safe for the consumer and their service providers.

(b) The consumer’s premises requires heavy cleaning to remove hazardous debris or dirt in the home to ensure the consumer’s home is safe and allows for independent living.

(c) The consumer's premises requires the removal of outside debris (for example, trees, leaves, clutter) that endangers the structure of the home, the consumer's ability to traverse within the home, or to safely enter or exit the home.

(d) The services must be completed to enable the consumer to move from one residence to another and to establish services in the new home.

(3) If the service is done in a rental location, the service must be a service that is not required of the landlord under applicable landlord-tenant law.

(4) Chore services are not part of the consumer’s on-going service plan. Once the chore service is complete, homecare workers may begin or continue ongoing housekeeping.

(5) Chore services must be appropriate and cost effective to meet the service need of the consumer.

(a) If feasible, three bids are required from companies or vendors who provide chore services. A bid is not comparative pricing through the Internet.

(b) Bids over $500 require a state licensed contractor.

(6) The consumer must sign a written agreement to:

(a) Have a vendor clean their home;

(b) Remove hazardous debris; or

History

Statutory/Other Authority: ORS 410.070 & ORS 409.050
Statutes/Other Implemented: ORS 409.050, 410.040, 410.090, 410.210 to 410.300 & 441.520
APD 34-2019, amend filed 09/27/2019, effective 10/01/2019
APD 9-2015, f. 3-30-15, cert. ef. 4-3-15
APD 49-2014(Temp), f. 12-30-14, cert. ef. 1-1-15 thru 6-29-15
APD 16-2014, f. & cert. ef. 6-4-14

Or. Admin. R. 411-035-0045 Eligible Chore Services

(1) Chore services are not housekeeping services and are not to be provided by homecare workers or in-home agencies.

(2) Chore services are intended to ensure the consumer’s home is safe and allows for independent living.

(3) In order to ensure the consumer’s home is safe, services may be authorized for, but not limited to:

(a) Heavy housecleaning to ensure the consumer and care providers can safely navigate in the home. This may include removal of hazardous debris or dirt from the home.

(b) Removal of yard hazards to ensure the outside of the home is safe for the consumer to enter and exit the home.

(4) Chore Services do not include:

(a) Removal of debris that does not impede the consumer from:

(A) Safely traversing within the home; or

(B) Entering or exiting the home safely.

(b) Removing items that do not present a potential fire hazard that would endanger the consumer’s health and safety.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 409.050, 410.040, 410.090, 410.210 to 410.300 & 441.520
APD 34-2019, amend filed 09/27/2019, effective 10/01/2019
APD 16-2014, f. & cert. ef. 6-4-14

Or. Admin. R. 411-035-0050 Chore Service Provider Qualifications and Requirements

(1) Providers of chore services must have a distinct Medicaid provider number before the work begins.

(2) No monetary funds shall be released to the provider until the work is finished and meets the specifications of the chore service agreement.

(3) Providers must submit the final invoice for payment within one year of the date of service.

(4) Providers must supply a revised bid when requested by designated Central Office staff.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 409.050, 410.040, 410.090, 410.210 to 410.300 & 441.520
APD 34-2019, amend filed 09/27/2019, effective 10/01/2019
APD 16-2014, f. & cert. ef. 6-4-14

Or. Admin. R. 411-035-0055 Eligibility for Consumer Environmental Modifications

(1) To be eligible for environmental modifications, a consumer may not be receiving community-based care in a licensed care setting and must meet the requirements in OAR 411-030-0033.

(2) If the consumer lives in a rental location, the consumer must have a written and signed agreement between the consumer receiving services and the owner or landlord of the rental property.

(a) The agreement must include:

(A) The scope of work provided;

(B) That the modification is permissible; and

(b) Environmental modifications in rental locations must not be for services that are required of the landlord under applicable landlord-tenant law.

(3) Environmental modifications are not part of the consumer’s on-going service plan. Once the environmental modification is complete, those services shall cease. No reduction notice is required.

(4) Environmental modifications must be appropriate, cost effective, and meet the service need of the consumer.

(a) Environmental modifications are limited to $5000 per environmental modification unless an exception is required per section (5) of this rule.

(b) If feasible, three bids are required from companies or vendors. A bid is not comparative pricing through the Internet.

(5) Exceptions to the $5,000 limitation may be granted if the consumer has service needs that warrant an exception for payment and no alternative is available to meet the needs of the consumer.

(6) Upon completion of the requested and approved environmental modification, the Department is not responsible for restoring the home to its previous condition. This includes the completion of environmental modifications when the consumer claims to not be satisfied with the work completed by the provider.

History

Statutory/Other Authority: 410.070 & ORS 409.050
Statutes/Other Implemented: ORS 409.050, 410.040, 410.090, 410.210 to 410.300 & 441.520
APD 34-2019, amend filed 09/27/2019, effective 10/01/2019
APD 9-2015, f. 3-30-15, cert. ef. 4-3-15
APD 49-2014(Temp), f. 12-30-14, cert. ef. 1-1-15 thru 6-29-15
APD 16-2014, f. & cert. ef. 6-4-14

Or. Admin. R. 411-035-0060 Eligible Environmental Modification Services

(1) Environmental modifications in the consumer’s home must be:

(a) To ensure the health, welfare and safety of the consumer.

(b) To enable the consumer to function with greater independence.

(2) Environmental modifications are not for home maintenance and home repairs that are otherwise considered the responsibility of the home owner or for the convenience of the care providers. Excluded environmental modifications include, but are not limited to:

(a) Plumbing;

(b) Roofs;

(d) Electrical;

(e) Heating and cooling;

(f) Hot water tanks; or

(g) Skylights and windows.

(3) Environmental modifications must be within the existing square footage of the home and must not add to the square footage of the home, except for external ramps needed to enter or exit the home.

(4) Consumers assessed with limitations in mobility, toileting, or bathing may qualify for installation or modification of items including, but not limited to:

(a) Ramps to enhance their ability to traverse within the home or to enter or exit the exterior of their home;

(b) Grab-bars;

(d) Electric door openers;

(e) Widening of doorways when the door is too narrow for the consumer to enter or exit through the doorway with or without a wheelchair;

(f) Door and cabinet handles for consumers having difficulty due to dexterity;

(g) Bathroom facilities, such as a raised toilet;

(h) Kitchen cabinets or sinks, such as lowering counters and sinks for wheelchair accessibility;

(i) Non-skid surfaces; and

(j) Overhead track systems to assist with lifting or transferring a consumer.

History

Statutory/Other Authority: ORS 410.070 & ORS 409.050
Statutes/Other Implemented: ORS 409.050, 410.040, 410.090, 410.210 to 410.300 & 441.520
APD 34-2019, amend filed 09/27/2019, effective 10/01/2019
APD 16-2014, f. & cert. ef. 6-4-14

Or. Admin. R. 411-035-0065 Environmental Modification Provider Qualifications and Requirements

(1) Providers of the environmental modification must have a distinct Medicaid provider number before the work begins.

(2) Modifications over $500 must be completed by a state licensed contractor.

(3) Modifications requiring a permit must be inspected and certified, by an inspector, to ensure compliance with local codes.

(4) No material upgrades or supplemental payments to the provider are allowed by landlords or informal supports.

(5) No monetary funds may be released to the provider until the work is finished and meets the specifications of the modification agreement. Providers must provide documentation, such as pictures of the completed work and signed releases from the consumer, prior to receiving payment from the Department.

(6) Providers must include drawings or pictures when possible with all bids of proposed Environmental Modifications.

(7) Providers must supply a revised bid when requested by designated Central Office staff.

(8) Providers must submit the final invoice for payment within one year of the date of service.

History

Statutory/Other Authority: 410.070 & ORS 409.050
Statutes/Other Implemented: ORS 409.050, 410.040, 410.090, 410.210 to 410.300 & 441.520
APD 34-2019, amend filed 09/27/2019, effective 10/01/2019
APD 16-2014, f. & cert. ef. 6-4-14

Or. Admin. R. 411-035-0070 Eligibility for Consumer Transition Services

(1) Eligibility for transition services covered through the K-State Plan are restricted to consumers transitioning from a nursing facility or the Oregon State Hospital, as defined in OAR 309-091-0005(16), into a community-based or in-home program.

(2) Consumers transitioning from an acute care hospital directly to a community-based or in-home program are not eligible for transition services under this rule.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 409.050, 410.040, 410.090, 410.210 to 410.300 & 441.520
APD 9-2015, f. 3-30-15, cert. ef. 4-3-15
APD 49-2014(Temp), f. 12-30-14, cert. ef. 1-1-15 thru 6-29-15
APD 16-2014, f. & cert. ef. 6-4-14

Or. Admin. R. 411-035-0075 Eligible Transition Services

(1) Approval for services and supports must:

(a) Be based on an assessed need determined during the person-centered service planning process.

(b) Support the desires and goals of the consumer receiving services and supports.

(2) Total expenses for transition services and supports covered under this rule may be approved from the date of authorization up to 30 days after a consumer discharges from a nursing facility or the Oregon State Hospital on a permanent basis and may include more than one item.

(3) Total purchases for basic household goods and furnishings are limited to one time per year within the first 30 days a consumer discharges from a nursing facility on a permanent basis.

(4) Total purchases for transition services and supports, other than basic household goods and furnishings, are limited to no more than twice annually. To access transition services and supports a second time within a year, the consumer must be transitioning from a nursing facility or the Oregon State Hospital.

(5) Funds must not be used to retroactively reimburse a consumer, natural supports, or community-based care providers for transition service expenses.

(6) Unless indicated in this rule, allowable moving and move-in costs are limited to an in-home setting and include:

(a) Transportation for touring community-based care facilities and in-home service settings.

(b) Housing application fees.

(d) Cleaning deposits.

(e) Security deposits.

(f) Initial deposits for heating, lighting, and land line phone service.

(g) Payment of previous utility bills that prevent a consumer from receiving utility services.

(h) Cleaning before move-in, is limited to consumers returning to a previous in-home setting and the service is needed to mitigate a health or safety risk.

(i) Basic household goods.

(A) Including, but not limited to:

(i) Cookware;

(ii) Tableware;

(iii) Garbage cans;

(iv) Trash bags;

(v) Toilet paper;

(vi) Bedding;

(vii) Linens; or

(viii) Basic cleaning supplies.

(B) The purchase of basic household goods is not intended to replace useable items already available to the consumer.

(i) The amount necessary to adequately meet the needs of the consumer, but may not exceed $500.

(ii) The Department may approve additional household goods if the consumer's functional needs assessment indicates the need for additional household goods beyond the standard limit.

(j) Basic household furnishings.

(A) Including, but not limited to:

(i) Beds;

(ii) Mattresses;

(iii) Dressers;

(iv) Couches;

(v) Tables; or

(vi) Chairs required in an in-home or community-based service setting.

(B) The purchase of basic household goods is not intended to replace useable items already available to the consumer.

(i) The amount necessary to adequately meet the needs of the consumer and may not exceed $1,000.

(ii) The Department may approve additional household furnishings if the consumer's functional needs assessment indicates the need for additional household furnishings beyond the standard limit.

(k) Basic food stocking.

(A) Including, but not limited to:

(i) Pantry staples;

(ii) Perishable food items; or

(iii) Canned or boxed foods that meet the basic nutritional needs of a consumer.

(B) The purchase of food items is not intended to replace non-perishable items already available to the consumer.

(i) The purchase of food items must be limited to the amount necessary to adequately meet basic nutritional needs within the transition period and may not exceed $200.

(ii) The Department may approve additional food stocking if the consumer's functional needs assessment indicates the need for additional food stocking beyond the standard limit.

(D) Consumers transitioning to a community-based care setting are not eligible to use funds for basic food stocking.

(l) Clothing that meets the basic needs of a consumer transitioning to a community-based care or in-home service setting.

(A) The purchase of clothing items are not intended to replace useable items already available to the consumer.

(B) A consumer's available income may be used before approving expenses.

(m) Movers and moving expenses, required to transition a consumer to a community-based care or in-home service setting, are limited to $1,000.

(n) Delivery costs associated with moving a consumer's property from an off-site location to a community-based or in-home setting during the transition.

(o) Extra locks, for security purposes, in a community-based care or in-home service setting.

(p) Duplicate keys in a community-based care or in-home service setting.

(7) The following services and expenses must be pre-authorized by the Department's Central Office:

(a) Purchases that exceed the monetary limits described in this rule.

(b) Approval for expenses that occur greater than 30 days after the transition period.

(d) Other necessities not identified in this rule that are required for a consumer to transition from a nursing facility or the Oregon State Hospital.

(e) Transportation for community-based service setting tours that require overnight travel.

(f) Payment of past rent or utility bills in which a consumer was more than one month behind.

(g) Transportation costs for the individual to transition from a nursing facility or the state hospital to a home or community-based care setting. This may include attendant services and transportation out of state.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 409.050, 410.040, 410.090, 410.210 to 410.300 & 441.520
APD 39-2016, f. 9-27-16, cert. ef. 10-1-16
APD 16-2014, f. & cert. ef. 6-4-14

Or. Admin. R. 411-035-0080 Transition Services Provider Qualifications and Requirements

(1) Providers of cleaning or moving services must have a distinct Medicaid provider number before providing services.

(2) Movers must have a certificate of authority or a permit from the Oregon Department of Transportation.

(3) No monetary funds shall be released to the provider until the work has been completed.

(4) Providers must supply a revised bid when requested by designated Central Office staff.

(5) Providers must submit the final invoice for payment within one year of the date of service.

History

Statutory/Other Authority: ORS 410.070 & ORS 409.050
Statutes/Other Implemented: ORS 409.050, 410.040, 410.090, 410.210 to 410.300 & 441.520
APD 34-2019, amend filed 09/27/2019, effective 10/01/2019
APD 16-2014, f. & cert. ef. 6-4-14

Or. Admin. R. 411-035-0085 Consumer Eligibility Criteria for Voluntary Consumer Training Services

(1) To be eligible for K-State Plan Voluntary Consumer Training Services, consumers must be or be expected to, receive services in a setting described in OAR 411-030-0033, In-Home Service Living Arrangement.

(2) Services are voluntary in nature.

(3) Services may be provided to designated representatives performing the duties of a consumer-employer on behalf of the consumer.

(4) Natural supports and designated representatives may receive services in addition to the eligible consumer.

(5) All in-home consumers participating in the Consumer-Employed Provider Program must be offered the voluntary training during the in-home service planning process. Case managers must make a referral to an approved training provider.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 409.050, 410.040, 410.090, 410.210 to 410.300 & 441.520
APD 9-2015, f. 3-30-15, cert. ef. 4-3-15
APD 49-2014(Temp), f. 12-30-14, cert. ef. 1-1-15 thru 6-29-15
APD 16-2014, f. & cert. ef. 6-4-14

Or. Admin. R. 411-035-0090 Voluntary Consumer Training Services

(1) GENERAL GUIDELINES.

(a) State K-Plan voluntary training services are offered on how to select; manage; and dismiss homecare workers.

(b) The training must meet the needs of consumers in regards to selecting, managing, and dismissing attendants.

(2) TRAINING PLAN.

(a) The provider must meet with the consumer to discuss:

(A) The consumer’s goals;

(B) Expected outcomes of the training; and

(b) The provider must develop a training plan with the consumer or the consumer's designated representative using the principles of person-centered planning which addresses the consumer’s specific needs, goals, and desired outcomes. A small group option may be offered, if available.

(c) The provider must provide a copy of the training plan to the consumer or the consumer's designated representative and the consumer's case manager.

(d) The provider must inform the case manager if, after receiving services, a consumer or consumer's designated representative appears unable to assume employer responsibilities as defined in OAR 411-030-0040. The provider must inform the case manager of any issues related to the health and safety of the consumer including, but not limited to, unsafe conditions in the home and suspected abuse.

(3) TRAINING CONTENT.

(a) The training must offer a continuum of services based on a consumer's needs and preferences.

(b) The training must include, at minimum, the following:

(A) Understanding the service plan and task list;

(B) Creating job descriptions, locating employees, interviewing, completing reference checks, and hiring a homecare worker;

(D) Training, supervising, and communicating effectively with employees;

(E) Ensuring work is performed satisfactorily;

(F) Correcting unsatisfactory work performance and discharging unsatisfactory workers;

(G) Scheduling and tracking hours worked and maintaining employment records;

(H) Developing a backup plan for coverage of services; and

(I) Fraud prevention.

(4) TIMEFRAMES.

(a) Providers must contact the consumer within 5 working days of receiving a referral from the Department, a designee, or a request from a consumer for services, and offer the choice of a telephone or in-person planning interview.

(b) The provider must perform a planning interview within 10 business days following the acceptance of the consumer's referral unless the consumer requests a later date.

(c) The provider must initiate the individualized training plan within 10 business days of conducting a planning interview.

(d) The provider may offer additional information and support within the parameters of the training plan, but may not assume the role of designated representative by performing tasks that are the responsibility of a consumer-employer.

(e) The provider may periodically contact the consumer or designated representative to determine if additional information and assistance is required.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 409.050, 410.040, 410.090, 410.210 to 410.300 & 441.520
APD 16-2014, f. & cert. ef. 6-4-14

Or. Admin. R. 411-035-0095 Provider Qualifications and Requirements for Voluntary Consumer Training Services

(1) To ensure services are consistent with the provision of the state’s comprehensive voluntary consumer training services, providers must be approved by, or have a contract with, the Oregon Home Care Commission.

(2) Services must be provided by providers who have experience providing direct or educational services to seniors and people with physical disabilities and who:

(a) Demonstrate knowledge of DHS rules pertaining to in-home services;

(b) Demonstrate skills in communication, person-centered planning, and in providing individual supports, which are needed to provide the services described in this rule;

(d) Participate in ongoing technical assistance and conferences provided by the Oregon Home Care Commission.

(3) Providers must supply a revised bid when requested by designated Central Office staff.

(4) Providers must submit the final invoice for payment within one year of the date of service.

History

Statutory/Other Authority: ORS 410.070 & ORS 409.050
Statutes/Other Implemented: ORS 409.050, 410.040, 410.090, 410.210 to 410.300 & 441.520
APD 34-2019, amend filed 09/27/2019, effective 10/01/2019
APD 16-2014, f. & cert. ef. 6-4-14

Division 37 COMMUNITY-BASED CARE TRANSITION SERVICES

Or. Admin. R. 411-037-0010 Purpose and Scope

Community Transition Services are non-recurring set-up expenses for individuals who are transitioning from licensed community based care settings or acute care hospitals to an in-home service setting defined in OAR 411-030-0033 where the person would be directly responsible for his or her own living expenses.

History

Statutory/Other Authority: ORS 409.050 & 410.070
Statutes/Other Implemented: ORS 409.050 & 410.070
APD 7-2018, adopt filed 03/28/2018, effective 03/29/2018
APD 23-2017, temporary adopt filed 09/29/2017, effective 10/01/2017 through 03/29/2018

Or. Admin. R. 411-037-0020 Definitions

(1) "Central Office" means the Program office of the Department.

(2) "Consumer" means the person applying for or eligible for Medicaid home or community-based services.

(3) "Department" means the Department of Human Services (DHS).

(4) "Transition Services and Supports" means services that are non-recurring set-up expenses for individuals who are transitioning from a licensed community based care setting or an acute care hospital to a living arrangement in a private residence where the person is directly responsible for his or her own living expenses.

History

Statutory/Other Authority: ORS 409.050 & 410.070
Statutes/Other Implemented: ORS 409.050 & 410.070
APD 7-2018, adopt filed 03/28/2018, effective 03/29/2018
APD 23-2017, temporary adopt filed 09/29/2017, effective 10/01/2017 through 03/29/2018

Or. Admin. R. 411-037-0030 Eligibility for Community Transition Services

(1) Eligibility for community transition services are restricted to consumers transitioning from a community-based care facility or an acute care hospital to an in-home setting, described in 411-030-0033.

(2) Consumers transitioning between community-based care facilities or from other institutions are not eligible for Community Transition Services defined in this rule. Consumers not eligible under these rules may be eligible for transition services defined in OAR chapter 411, division 035.

History

Statutory/Other Authority: ORS 409.050 & 410.070
Statutes/Other Implemented: ORS 409.050 & 410.070
APD 7-2018, adopt filed 03/28/2018, effective 03/29/2018
APD 23-2017, temporary adopt filed 09/29/2017, effective 10/01/2017 through 03/29/2018

Or. Admin. R. 411-037-0040 Community Transition Services

(1) Approval for services and supports must:

(a) Be based on an assessed need determined during the person-centered service planning process.

(b) Support the desires and goals of the consumer receiving services and supports.

(2) Total expenses for transition services and supports covered under this rule may be approved from the date of authorization up to 30 days after a consumer discharges from their current community-based care facility or acute care hospital on a permanent basis and may include more than one item.

(3) Allowable expenses are those necessary to enable a person to establish a basic household and to meet their assessed needs.

(4) Total purchases for basic household goods and furnishings are limited to one time per year and must occur within the first 30 days a consumer discharges from their current community-based care facility or an acute care hospital to a permanent in-home setting.

(5) Total purchases for transition services and supports, other than basic household goods and furnishings, are limited to no more than twice annually. To access transition services and supports more often, Central Office may approve exceptions to this rule.

(6) Funds must not be used to retroactively reimburse a consumer, natural supports, or community-based care providers for transition service expenses.

(7) Unless indicated in this rule, allowable transition services are limited and include:

(a) Housing application fees.

(b) Payment for background and credit checks related to housing.

(d) Security deposits.

(e) Initial deposits for heating, lighting, and phone service.

(f) Payment of previous utility bills that prevent a consumer from receiving utility services.

(g) Purchase of Basic Household Goods:

(A) Household Goods may include, but are not limited to:

(i) Cookware.

(ii) Tableware.

(iii) Garbage cans.

(iv) Trash bags.

(v) Toilet paper.

(vi) Bedding.

(vii) Linens.

(viii) Basic cleaning supplies.

(B) The purchase of basic household goods is not intended to replace useable items already available to the consumer.

(i) The amount necessary to adequately meet the needs of the consumer, but may not exceed $500.

(ii) The Department may approve additional household goods if the consumer's functional needs assessment indicates the need for additional household goods beyond the standard limit.

(h) Purchase of Basic household furnishings.

(A) Basic household furnishings may including, but are not limited to:

(i) Beds.

(ii) Mattresses.

(iii) Dressers.

(iv) Couches.

(v) Tables.

(vi) Chairs required in an in-home service setting.

(B) The purchase of basic household furnishing is not intended to replace useable items already available to the consumer.

(i) The amount necessary to adequately meet the needs of the consumer and may not exceed $1,000.

(ii) The Department may approve additional household furnishings if the consumer's functional needs assessment indicates the need for additional household furnishings beyond the standard limit.

(i) Movers and moving expenses may be authorized if required to transition a consumer from a community-based care or acute care hospital to an in-home setting. Local offices may approve moving costs up to $1,000 per move. Any expenditures above that amount may be approved by the Central Office.

(j) Extra locks, for security purposes, or duplicate keys needed to assist the consumer in their in-home service setting.

(k) Community Long Term Care Nursing services where a contract RN delegates or teaches the consumer, caregivers, or natural supports to:

(A) Provide personal care assistance to the individual;

(B) Provide ongoing medical treatment; or

(8) The following services and expenses must be pre-authorized by the Department's Central Office:

(a) Purchases that exceed the monetary limits described in this rule.

(b) Approval for expenses that occur greater than 30 days after the transition period.

(d) Other necessities not identified in this rule that are required for a consumer to transition from a community-based care facility setting.

History

Statutory/Other Authority: ORS 409.050 & 410.070
Statutes/Other Implemented: ORS 409.050 & 410.070
APD 7-2018, adopt filed 03/28/2018, effective 03/29/2018
APD 23-2017, temporary adopt filed 09/29/2017, effective 10/01/2017 through 03/29/2018

Or. Admin. R. 411-037-0050 Limitations

Community Transition Services:

(1) Are furnished only to the extent that they are reasonable and necessary as determined through the service plan development process, clearly identified in the service plan and the person is unable to meet such expense or when the services cannot be obtained from other sources.

(2) Do not include any of the following:

(a) Monthly rental or mortgage expense.

(b) Food.

(d) Household appliances or items that are intended for purely diversional or recreational purposes.

(3) May not overlap, supplant, or duplicate other services provided through the Medicaid State Plan, Medicaid State Plan Options, or other approved Medicaid waiver authorities.

History

Statutory/Other Authority: ORS 409.050 & 410.070
Statutes/Other Implemented: ORS 409.050 & 410.070
APD 7-2018, adopt filed 03/28/2018, effective 03/29/2018
APD 23-2017, temporary adopt filed 09/29/2017, effective 10/01/2017 through 03/29/2018

Division 39 AGENCY WITH CHOICE

Or. Admin. R. 411-039-0000 Purpose

The purpose of these rules is to establish minimum standards and procedures for an Agency with Choice to perform administrative employer functions and support Individuals in self-directed care and services in their home, including older adults and adults with physical disabilities. These rules ensure Agencies with Choice provide self-directed services to maximize independence, empowerment, dignity, and human potential through the provision of flexible, efficient, and person-centered services enabling the Individual to move into or continue to live in their own home.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0010 Definitions

(1) "Abuse" means "abuse" as defined in OAR 411-020-0002 (Adult Protective Services).

(2) "Activities of Daily Living (ADL)" means those personal, functional activities as defined in OAR 411-015-0006.

(3) “Administrator” means the person designated by the Licensee through an employment agreement to be responsible for the daily operations and maintenance of the Agency with Choice.

(4) “Agency with Choice” means an organization licensed by the Department that provides self-directed Agency with Choice Services for compensation to Individuals primarily at the Individual’s home and their community.

(5) “Agency with Choice Services” means services provided to Individuals by an Agency with Choice operating within a Self-Directed Service Delivery Model and include those services as specified in these rules. Agency with Choice services do not include nursing procedures or tasks that require nursing delegation or teaching as defined in OAR chapter 851, division 047.

(6) "Applicant" means the person, entity, or governmental organization who applies for an Agency with Choice (license).

(7) "Area Agency on Aging (AAA)" means the Department designated agency responsible for providing a comprehensive and coordinated system of services to Individuals in a planning and service area. The term Area Agency on Aging is inclusive of both Type A and Type B Area Agencies on Aging as defined in ORS 410.040 and described in ORS 410.210 to 410.300.

(8) “Authorized Representative” may include one of the following for the purpose of these rules:

(a) “Legal Representative” means a person who has been legally designated by court order to make financial or health care decisions on behalf of another Individual. The Legal Representative only has authority to act within the scope and limits of their authority as designated by the court or other agreement. For the purpose of these rules, and Authorized Representatives and Legal Representatives are synonymous unless otherwise indicated.

(b) A person designated by an Individual or the Individual’s legal representative to act on behalf of the Individual in making decisions on matters pertaining to the planning and implementation of an in-home Service Plan.

(c) In no instance may an “Authorized Representative” be a paid Direct Support Worker of Home and Community Based Services (HCBS) nor an employee of the Agency with Choice for an Individual for whom they provide services. The Department shall verify the Authorized Representative is not providing paid services as contained within this section.

(9) “Back Up Plan” means a plan developed by the Individual or Individual’s Authorized Representative in coordination with the Agency with Choice to ensure uninterrupted Services and Supports in the event of planned or unplanned absences of the Direct Support Worker or in case of an emergency. The Back Up Plan should include the name and contact information and the specific ways in which the backup will support the Individual.

(10) “Background Check” means a background records check as defined in OAR 407-007-0010, ORS 409.025, and 409.027 that includes a final fitness determination that the Subject Individual is fit to hold a position and have direct access to or otherwise provide care and services necessary for the health, welfare, maintenance, or protection of an Individual.

(11) “Case Manager” or "CM" means a Department employee or an employee of the Department's designee that meets the minimum qualifications in OAR 411-028-0040 who is responsible for service eligibility, assessment of need, offering service choices to eligible Individuals, Person-Centered Service Planning, service authorization and implementation, and evaluation of the effectiveness of Medicaid home and community-based services.

(12) “Change of Condition” means an Individual’s care needs, health or functioning have changed to the point that additional or different supports may be necessary.

(13) "Change of Ownership" means adding or removing one or more owners which constitutes a change of more than five percent interest in Agency with Choice ownership.

(14) “Complaint” means dissatisfaction relating to an Agency with Choice expressed by the Individual or their Authorized Representative.

(15) “Cultural Competence” means the ability to interact effectively with people from different cultures, languages, races and other backgrounds.

(16) "Department" means the Oregon Department of Human Services (ODHS), The Office of Aging and People with Disabilities.

(17) “Direct Support Worker (DSW)” means a person employed by an Agency with Choice, to assist Individuals with activities of daily living, Instrumental Activities of Daily Living and health related tasks as defined in the Individual’s Service Plan and further denoted in the DSW’s job description as required by Section 411-039-0130 (3) of these rules. Direct support worker does not mean a homecare worker, or a personal support worker as defined in ORS 410.600.

(18) “Drug-Free Workplace” means the Agency with Choice ensures Direct Support Workers:

(a) Are prohibited from using or being under the influence of alcohol, inhalants, or drugs, including prescription and over-the-counter medications that prevents duties from being performed; or

(b) Are prohibited from manufacturing, possessing, selling, offering to sell, trade, or use illegal drugs while providing services to an Individual, or while in the Individual’s home.

(19) “Electronic Visit Verification (EVV)” means a system under which visits conducted as part of the Service Plan are electronically verified at the time of service, and meets the requirements specified the 21st Century Cures Act enacted as Public Law 114-225, United States Code 42 U.S.C 241(d)(4).

(20) “Formal Complaint” means a formal filing with the Department that alleges the Agency with Choice Agency has not adhered to a material aspect of the Agency with Choice statute or administrative rules.

(21) “Grievance” means a formal, written dissatisfaction submitted by an Individual or Authorized Representative regarding the failure of an Agency with Choice to follow required rules, policies, or services.

(22) “Individual” means a person receiving Agency with Choice Services and supports who is approved for home and community-based services by the Department as defined in OAR 411-015-0005.

(23) "Instrumental Activities of Daily Living (IADL)" means those activities defined in OAR 411-15-0007.

(24) "Investigative Authority" means the local APD office, or local AAA office that contracts with the Department to receive and investigate alleged Abuse and assess protective services under OAR chapter 411, division 20.

(25) “Licensee” means the person or entity who has been issued an Agency with Choice license.

(26) “Management Experience”, means verifiable experience, history in the administration, supervision, or management in a health-related or long-term services, and supports field. This includes, at a minimum, hiring, assigning, evaluating, promoting and responsibility for implementing disciplinary actions.

(27) “Mandatory Reporter” means any public or private official who is required by state Abuse statutes to report alleged Abuse to the Department, or law enforcement agency as it applies to a:

(a) "Child" defined in ORS 419B.005;

(b) "Child in Care" as defined in ORS 418.257;

(d) "Elderly Person" or a "Person with a Disability" as those terms as defined in ORS 124.005.

(28) "The Office of Aging and People with Disabilities (APD)” means the program area of The Office of Aging and People with Disabilities, within the Oregon Department of Human Services.

(29) "Person-Centered Service Plan” or “Service Plan" means the details of the supports, desired outcomes, activities, and resources required for an Individual to achieve and maintain personal goals, health, and safety, as described in OAR 411-004-0030. The Case Manager completes the Person-Centered Service Plan directed and agreed by the Individual, or Individual’s representative.

(30) "Professional Experience" means having verifiable work history as a licensed or certified nurse, nursing assistant, medication aide, physician, physical or occupational therapist or having received the professional development certificate from the Oregon Home Care Commission or other verifiable work experience from other states. The license or certificate must be current and in good standing.

(31) "Provider Enrollment Agreement" refers to the agreements between the Department and a qualified Medicaid provider to receive a provider agency number and deliver services for compensation.

(32) "Qualified Trainer" means a person who:

(a) Has Professional Experience providing Direct Support Workers, homecare workers, certified nursing assistants or other relevant caregivers with the necessary skills and information necessary to provide competent, quality care, and is approved by the Department to Direct Support Worker; and

(b) Is designated by an Agency with Choice to conduct Direct Support Worker training on behalf of the Agency with Choice, including but not limited to orientation, mandatory training and continuing education training required by these rules.

(33) “Self-directed Service Delivery Model” for the purpose of these rules means an Individual is supported by an Agency with Choice that functions as the employer (defined in ORS 411.375) of Direct Support Workers recruited by the Individual and provides financial management services and tasks in place of the Individual. The Individual chooses, trains and directs the tasks and work priorities of the Direct Support Workers who will provide their services and is considered a co-employer with the Agency with Choice.

(34) “Services and Supports” means the ADLs, IADLs, and health-related needs as described in the Individual’s Service Plan.

(35) “Subject Individual (SI)” means an individual whom an Agency with Choice must conduct a Background Check and BCU may conduct a criminal records and Abuse check, and from whom BCU may require fingerprints for the purpose of conducting a criminal records check and an Abuse check. An SI includes all staff and volunteers working for or with the Agency with Choice.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0020 Temporary rule language in effect until 12/01/2026. Application for Licensure

(1) An entity or organization that establishes, conducts, or represents itself to the public as an Agency with Choice or as providing a Self-Directed Service Delivery Model to “Individuals” defined in OAR 411-039-0010(23), must be licensed as an Agency with Choice by the Department.

(2) Each applicant must submit a written application, provided by the Department for a license to operate an Agency with Choice. The application is not complete until all information required to make a decision is received by the Department. The Department will notify the applicant within 7 days if the application is found to be incomplete. If an applicant does not provide the missing information, the application will be voided 60 days after initial receipt by the Department.

(3) The application must include all required information and documentation as specified by the Department including, but not limited to:

(a) The application form must be signed and dated by the applicant’s legally authorized representative.

(b) Comprehensive description of the Agency with Choice, services offered, supports delivered, administrative control, and lines of authority and responsibility from the Licensee to the Individual level;

(c) Identification of any person, including owners and partners, with a financial interest representing more than 5 percent of ownership in the applicant. Identification includes the person’s name, role, date of birth, and, where applicable, social security number. The person’s date of birth and social security number shall be withheld from public viewing. For an Agency with Choice managed by a Board of Directors, the Department is required under 42 USC §405(c)(2)(C)(i) (United States Code), 42 CFR §455.104 (United States Code of Federal Regulation) and 26 CFR §301-6109-1 to obtain a social security number and date of birth for each board member.

(d) Completed Background Check request form for the applicant(s), Administrator, and for each person with 5 percent or more incident of ownership, regardless of the person's effect on the operation of the agency.

(e) Proof of fiscal responsibility and capacity to prevent fraud, waste, and Abuse by including an auditor's certified financial statement, and other verifiable documentary evidence of fiscal solvency documenting that the prospective Licensee has sufficient resources to operate the agency for 90 days, Proof of fiscal responsibility must include liquid assets sufficient to operate the agency for 45 days. Anticipated Medicaid income is not considered "liquid assets," but may be considered "financial resources." Liquid assets may be demonstrated by:

(A) An available line of credit;

(B) A performance bond; or

(f) Completed Tax Compliance Certification issued by the Oregon Department of Revenue in accordance with ORS 305.380 and ORS 305.385.

(g) Comprehensive plan of operation for the Agency with Choice.

(h) All written policies and procedures, including, but not limited to:

(A) Outline, in writing, how the Agency with Choice and services are designed to empower Individuals including detailed descriptions of the services provided, administrative control, and lines of authority and responsibility from the licensee to the Individual receiving services and support;

(B) Personnel operations including a well-defined process for hiring, terminating, training, evaluating, retaining, and managing the Agency with Choice staff including those Direct Support Workers requested by the Individual;

(C) Established guidelines for conducting Background Checks, as defined in OAR 411-039-0070 and verifying the qualifications of potential employees;

(D) Individual notification requirements including a detailed procedure for the provision of information to Individuals or their Authorized Representatives of their rights, services provided, and any changes affecting their services;

(E) Management of Individual records including details for controlling access and providing secure storage; and

(F) Medical and non-medical emergency response including details on staff responsibilities, communication and documentation.

(i) Copy of the Agency with Choice’s written disclosure statement;

(j) Copy of the Agency with Choice’s nondiscrimination notice; and

(k) A signed Labor Relations Attestation.

(4) An Agency with Choice must notify the Department in writing of any updates to its information. If any details from the most recent application changes outside of the renewal date, the Agency with Choice is required to submit changes in writing to the Department within 30 calendar days of the change.

(5) Licenses are not transferrable to any other person or entity. If there is a Change of Ownership, the Agency with Choice must submit a new application reflecting the change in the owner or Administrator. The Department will decide to grant or not grant the new applicant a license.

(6) Applicants must be free of incident of ownership history in any agency, facility, or business that failed to reimburse any state for Medicaid overpayments or civil penalties within the past five years.

(7) Applicants must be free of incident of ownership history in any agency, facility, or business that failed to compensate employees or pay worker's compensation, utilities, or other costs necessary for agency operation within the past five years.

(8) Applicants must be free of incident of ownership history in any agency, facility, or home in any state that had its license or certification involuntarily suspended or terminated or voluntarily terminated during any state or federal sanction process within the past five years.

(9) Applicants must be free of any incident of Medicaid fraud in any state, United States territory or the District of Columbia and must not be on the Office Inspector exclusion list within the past 25 years.

(10) Applicants must comply with ORS 652.220 and must not unlawfully discriminate against an employee in the payment of wages or other compensation for work of comparable character based on an employee’s membership in a protected class.

(11) Applicants must comply with ORS 656.017, and provide workers compensation insurance coverage for those workers, unless they meet the requirement for an exemption under ORS 656.126(2).

(12) The Department may deny or not renew the license if an applicant fails to provide complete, accurate, and truthful information during the application, licensing or renewal processes.

(13) The Department must notify an applicant in writing if a license application is denied or approved within 14 days of such determination.

(14) A license is valid for two years unless revoked or suspended by the Department.

(15) No Agency with Choice may use the term “in-home care agency” in its advertising, publicity, or any other form of communication.

(16) A cost report may be required earlier than annually if there is a Change of Ownership or termination of the Agency with Choice’s license.

History

Statutory/Other Authority: Or Laws 2024, ch. 37 & Or Laws 2026, ch. 102
Statutes/Other Implemented: ORS 124.050, 305.380, 305.383, Or Laws 2024, ch. 37 & Or Laws 2026, ch. 102
APD 8-2026, temporary amend filed 05/26/2026, effective 06/05/2026 through 12/01/2026
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0030 Standards for License Renewal

(1) A full and complete application for license renewal must be submitted to the Department at least 60 days prior to the expiration date of the existing license. Filing an application for renewal before the date of expiration extends the effective date of expiration, until the Department acts upon such application. The application for renewal must meet all the requirements in OAR 411-039-0020.

(2) If the renewal application is not submitted prior to the expiration date of a license, the Agency with Choice is unlicensed and subject to civil penalties defined in OAR 411-039-0240 and must immediately cease providing support to Individuals.

(3) The Department will conduct a compliance review of an Agency with Choice 90 days prior to the renewal of a license and shall assess compliance with these rules.

(4) The Department must not renew a license if the Agency with Choice is not in substantial compliance with these rules.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0040 Reporting and Billing Requirements

(1) In order to receive public funds, an Agency with Choice must be licensed as an Agency with Choice and must be enrolled with the Department as a Medicaid provider.

(2) An Agency with Choice must meet all requirements in OAR 411-033-0030 (Provider Enrollment Requirements) for the Department.

(3) To receive payment for services, the Agency with Choice must utilize a Department-approved Electronic Visit Verification system (EVV), as specified in OAR 411-033-0010, to verify the following details at the time of service for visits:

(a) Date of service;

(b) Start and end time;

(d) Location of service;

(e) The name of the Direct Support Worker providing the service; and

(f) The name of Individual receiving services.

(4) Agency with Choice must submit claims for reimbursement to the Department and pay Direct Support Workers for Authorized hours worked and billed in accordance with the Electronic Visit Verification requirements. All claims must be submitted no later than 12 months from the date of service. Per 42 CFR 424.44, time limits for filing claims, any claims submitted after 12 months from the date of service will not be eligible for reimbursement.

(5) The Agency with Choice must withhold, file, and pay income taxes and all employment-related taxes, including but not limited to, workers’ compensation premiums and unemployment taxes. The Agency with Choice must also verify the qualifications of each Direct Support workers as required by Oregon and Federal Laws.

(6) The Agency with Choice shall be reimbursed:

(a) Only for approved and authorized hours and services delivered to an Individual based on the Individual’s Person-Centered Service Planning.

(b) Only at the Department’s approved hourly rate for services.

(c) Request for reimbursement of community transportation must not include mileage for an employee commuting to and from the Individual's home.

(d) To provide community transportation services, the Direct Support Worker must maintain valid driver’s license, current vehicle registration and necessary auto insurance. Proof must be available upon the request of the Department. Mileage must be prior authorized in the Person-Centered Service Plan.

(7) The Agency with Choice must comply with OAR 411-020-0100, OAR 411-020-0105, and OAR 410-120-1510 and the requirements therein for prompt reporting of fraud, waste, and Abuse in the Medicaid program. Information on how to report may always be found online: https://www.oregon.gov/oha/FOD/PIAU/Pages/Report-Fraud.aspx.

(8) The Agency with Choice must provide a copy of all information and documents as requested by the Department.

(9) The Agency with Choice must cooperate with all review activities required by the Department, including but not limited to providing access to records, staff, and service documentation related to the delivery of Agency with Choice Services.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0050 Services Provided

(1) The Agency with Choice must ensure that the Individual is supported in ensuring their services are adequate and responsive to their needs with a focus on self-direction.

(2) The services provided by an Agency with Choice must include the provision of or assistance with ADL, IADL and health-related tasks as directed by the Individual or the Authorized Representative and approved in the Individual’s Department approved Service Plan. The Agency with Choice is not responsible for Long Term Care Community Nursing Services.

(3) An Agency with Choice must agree in writing to deliver the supports identified in an Individual's Department approved Service Plan which includes the limits and scope of the services to be provided. Agreement may be shown by the Agency with Choice signature on the Service Plan.

(4) The Agency with Choice must assist the Individual with the following responsibilities:

(a) Recruiting, selecting, and retaining Direct Support Workers to assist Individuals with activities of daily living (ADL), Instrumental Activities of Daily Living (IADL) and health related tasks, and changing Direct Support Workers from an Individual’s service team when necessary;

(b) Coordinating the schedules of Direct Support Workers prioritizing the Individual’s choices, needs, and preferences, ensuring that support is person-centered and self-directed;

(c) Proactively work with the Individual or their Authorized Representative to develop a Back Up Plan to ensure continuity of services, when the regularly scheduled Direct Support Worker is unavailable due to absence or emergent circumstances and ensure that the Individual’s service needs are met during these planned and unplanned absences;

(d) Establishing the responsibilities of Direct Support Workers and ensuring Direct Support Workers do not work more than the hours authorized by the Department;

(e) Training Direct Support Workers on best practices and basic requirements and at the request of the Individual, the Individual’s specific needs and preferences to ensure Services and Supports are delivered appropriately;

(f) Ensuring a safe and healthy workplace environment as defined in OAR chapter 411, division 030, and in the roles and responsibilities of co-employer; and

(g) Ensuring Direct Support Workers are compliant with Electronic Visit Verification (EVV).

(5) If the Agency with Choice is concerned that the Individual can no longer self-direct or if there is a Change of Condition, the Agency with Choice must contact the Individual’s Case Manager within five business days.

(6) All documentation required in sections (2) and (4) of this rule must be kept in the Individual’s record.

(7) The Licensee is responsible for the supervision, training, and overall conduct of all Agency with Choice staff when acting within the scope of their employment or duties.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0060 Operational Standards

(1) An Agency with Choice's Licensee assumes full legal, financial, and overall responsibility for the Agency with Choice's operation and contractual obligations. Any violations by Agency with Choice owners, Direct Support Workers, other staff, or representatives are attributable to the Agency with Choice and against the Agency with Choice’s license.

(2) An Agency with Choice must not assign administrative or supervisory functions of the Agency with Choice to another entity.

(3) When Medicaid is the source of payment for the services provided by the Agency with Choice, the Medicaid service payment is considered payment in full for all services provided by the Agency with Choice.

(4) All Agency with Choice records must be kept separate and distinct from other business entities.

(5) All Direct Support Workers are covered under labor laws, including the Fair Labor Standards Act.

(6) An Agency with Choice must ensure services are made available to any Individual who chooses this service option, in alignment with the Medicaid Statewide operations requirement outlined in Section 1902 (a)(1) of the Social Security Act and 42 CFR Part 431. This requirement mandates that a state’s Medicaid program must operate uniformly across the state. Agency with Choice must have the capacity to meet the needs of Individuals through responsive communication, proactive recruitment, staffing, and retention of Direct Support Workers, and must be able to serve statewide.

(7) All Agency with Choice employees, Direct Support Workers, and Administrators must carry identification indicating their name and the Agency with Choice employer.

(8) An Agency with Choice Direct Support Worker may accompany an Individual anywhere if requested by the Individual. The Direct Support Worker must document all Services and Supports provided to the Individual on a daily basis through the EVV system.

(9) Agency with Choice must establish a process for:

(a) Identifying, analyzing, and correcting any of the following events:

(A) Abuse as defined in OAR 411-020-0002;

(B) Serious injury resulting in hospitalization, urgent care or emergency room treatment;

(D) Missing person when a member's whereabouts are unknown;

(E) Law enforcement contact;

(F) Unexpected death.

(b) Ensuring the immediate reporting of any allegations of events listed in (a) or any other violation of the Individual’s rights must be made to the Individuals Case Manager and Adult Protective Services;

(c) Notifying the Individual’s Case Manager, as applicable, of any known change in the Individual’s health, behavior, environment and related events as defined in (a);

(d) Ensuring Direct Support Workers maintain confidentiality of personally identifiable information of the Individual and addressing allegations of release of confidential information;

(e) Provide standardized training to Direct Support Workers as defined in OAR 411-039-0120;

(f) Retain a personnel record for each Direct Support Worker;

(g) Provide other administrative and employment-related supports; and

(h) An Agency with Choice must provide equitable and non-discriminatory services to all Individuals, regardless of race, color, religion, national origin, age, sex, sexual orientation, gender identity, disability, or any other protected status under state and federal law.

(10) An Agency with Choice must:

(a) Maintain a Drug-Free Workplace;

(b) Report any Abuse, harassment, restrain or hospitalization, emergency room visits and urgent care visits and deaths.

(c) Involve Direct Support Workers employed by the Agency with Choice served by the Agency with Choice in the development of and decision-making about work processes, performance standards, quality improvement strategies, training, retention, technology use, and workplace safety;

(d) Minimize the impact of the loss of pay and work hours for Direct Support Workers resulting from the hospitalization or death of an Individual or the dismissal of the Direct Support Worker by the Individual;

(e) Engage and work closely with Individuals to design and implement Agency with Choice Services by appointing Individuals to an advisory board, using focus groups of Individuals, or employing other methods approved by the Department to engage with Individuals effectively;

(f) Enhancing the role of Direct Support Workers as members of the Individual’s service team, as desired and approved by the Individual, or their Authorized Representative; and

(g) Complying with other requirements as prescribed by the Department, and by rule.

(11) An Agency with Choice must have a disclosure statement which must be signed by the Individual or the Authorized Representative when the Individual is accepted to receive services. The disclosure statement must include:

(a) A statement must be included that the Agency with Choice will not bill the Individual for any additional services;

(b) A description of services provided and how they will be provided, including a discussion regarding staffing availability, coordination, and support for creation of a backup plan;

(d) Agency with Choice and Individual's rights and responsibilities;

(e) An Agency with Choice must not include any provision in the disclosure statement that affect Individual's rights or the Agency with Choice liability for negligence. The Individual or Authorized Representative has a duty to supervise the Direct Support Worker consistent with the Service Plan;

(f) A description of the qualifications and training requirements necessary for Direct Support Workers providing Services and Supports as required by OAR 411-039-0130(3) of these rules;

(g) Procedures for contacting the Agency with Choice Administrator or Administrator's designee during all of the hours which services are provided;

(h) A clear statement indicating the disclosure statement must be made available to the Individual or the Authorized Representative in an alternate format at the Individual's or the Authorized Representative’s request;

(i) A copy of the Individual’s rights as defined in OAR 411-039-0160;

(j) The disclosure statement must not include language or referring to "buy outs" or "finder's fees” nor shall it include any language that limits Individuals from their full access to other Medicaid services; and

(k) The policy for Individual reimbursement for stolen, broken or misappropriated property or funds.

(12) An Agency with Choice must provide each Individual with a written notice of the Individual's rights as a part of the disclosure statement, prior to furnishing Services and Supports to an Individual. The Individual’s rights notice must also include:

(a) Procedures for filing a Grievance, Complaint or Formal Complaint with the Agency with Choice;

(b) Procedures for filing a Grievance, Complaint or Formal Complaint with the Department, along with the telephone number and contact information of the Department; and

(c) Notice of the Individual’s rights and responsibilities as co-employer of the Direct Support Worker, as outlined in these rules.

(13) An Agency with Choice must incorporate the notice specified in subsection language below into its current nondiscrimination policy and written materials. The notice must also be included wherever the policy or materials are posted. The notice must state:

(14) An Agency with Choice must assist an Individual in planning for Direct Support Worker unplanned, and planned absences or similar situations which call for replacement workers, consistent with the Individual’s choice of Direct Support Workers to provide the services.

(15) An Agency with Choice must have in place a process to receive and respond to a Grievance, Complaint or Formal Complaint, submitted by an Individual about the services provided to the Individual, by a Direct Support Worker. An investigation must start no later than 5 business days from the date of the Grievance, Complaint or Formal Complaint of the allegation(s) contained therein and must finalize the response within 30 days.

(a) For allegations that could reasonably be expected to result in harm to the Individual, investigations must start within 24 hours. Investigations must be completed no later than 15 days from the date the investigation started. Findings and mitigation strategies must be reported to the Department.

(b) Agency with Choice must notify the Department of all Complaints and Formal Complaints within 45 days of receiving the Complaint, or Formal Complaint.

(16) The Department has authority to examine Individuals’ records as part of the Departments regulation and evaluation of the Agency with Choice.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0070 Temporary rule language in effect until 12/01/2026. Background Checks for Subject Individuals

(1) An Agency with Choice must submit a Background Check request for each Subject Individual to the Background Check Unit (BCU), prior to allowing the Subject Individual to work. A Subject Individual must not begin work on a preliminary basis. Preliminary approval is not permitted under these rules.

(2) The Agency with Choice must comply with OAR 407-007-0200 through 407-007-0370 for all Subject Individuals, as applicable.

(3) The Agency with Choice must maintain documentation of the BCU Background Check approval in the Subject Individual's personnel record.

(4) An Agency with Choice must perform and document a query of the List of Excluded Individuals and Entities (LEIE).

(5) An Agency with Choice must ensure that a Background Check is performed on a Subject Individual every three years from the date of the Subject Individual‘s last Background Check in accordance with OAR 407-007-0200 to 407-007-0370.

(6) Any cost for a Background Check shall be the responsibility of the Agency with Choice and must not exceed the cost charged to the Department.

(7) The Agency with Choice must notify the BCU, and the Department within 24 hours if any Subject Individual is involved in a potentially disqualifying crime under OAR 407-007-0281 or potentially disqualifying condition under OAR 407-007-0290, ORS 409.025, and 409.027.

History

Statutory/Other Authority: Or Laws 2024, ch. 37 & Or Laws 2026, ch. 59
Statutes/Other Implemented: ORS 124.050, 443.004, Or Laws 2024, ch. 37 & Or Laws 2026, ch. 59
APD 8-2026, temporary amend filed 05/26/2026, effective 06/05/2026 through 12/01/2026
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0080 Emergency and Continuity of Operations Planning

(1) Each Agency with Choice must establish and maintain, as part of their application, an emergency and continuity of operations plan to ensure the stability of its administrative functions and continuity of essential business operations during emergent events or disasters.

(2) The plan must prioritize:

(a) Securing a location to perform business functions, if necessary;

(b) Ensuring availability of personnel;

(c) Preserving information technology (IT) systems, including EVV systems, essential for uninterrupted service delivery; and

(d) Complements Individual safety planning, which is managed by Case Managers for each Individual.

(3) The Agency with Choice is responsible for ensuring the continuity of its business and administrative functions. Safety planning specific to Individuals, including emergency preparedness and health-related needs, must be coordinated by the assigned Case Manager as part of the Individual’s Person-Centered Service Plan.

(a) The Agency with Choice must ensure Case Managers have up-to-date contact information for Direct Support Workers and Agency with Choice management; and

(b) Access to relevant emergency information for effective coordination with administrative staff during emergencies.

(4) The Emergency and continuity of operations plan must be reviewed and updated when significant changes occur, such as updates in technology, staffing, or business location. All updates must be:

(a) Documented in writing and available in an easily accessible location; and

(b) Distributed to all staff to ensure awareness and familiarity with current protocols.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0090 Response to Grievances and Critical Incidents

(1) The Agency with Choice must maintain in its records documentation of all internal investigations of any Grievance, Complaint or Formal Complaint, and any event described in 411-039-0060(10)(b). Documentation must be maintained in a separate file from the Individual and personnel records and must include:

(a) Who was interviewed, and the information provided;

(b) Results of the investigation; and

(2) The Licensee and employees are Mandatory Reporters and must immediately report known or suspected Abuse, including events overheard or witnessed by observation to the Investigative Authority.

(3) The Licensee and employees must call the local law enforcement agency first when the suspected Abuse is believed to be a crime such as but not limited to rape, murder, assault, burglary, kidnapping, theft of controlled substances.

(4) The Licensee must provide quarterly reports of Grievances, Complaints events listed in OAR 411-039-0060(9)(a) to the Department.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0100 Administrator Qualifications and Requirements

(1) The Administrator must have the education and training sufficient to administer the Agency with Choice. At a minimum, the Administrator must have two years of Management, and Professional Experience.

(2) The Administrator must assign, in writing, a designee to act as the Administrator when the Administrator is temporarily unavailable.

(3) The Administrator or Administrator's designee must be accessible and available during all hours in which services are being provided to Individuals to support the Direct Support Worker and address concerns from the Individual.

(4) The Administrator or Administrator's designee is responsible for ensuring the Agency with Choice meets all of the requirements in these rules.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0110 Direct Support Worker Qualifications and Requirements

(1) The services provided by an Agency with Choice must be rendered by qualified and trained employees.

(2) Direct support workers who have been substantiated for Abuse or Medicaid fraud as a provider from any care setting in the United States may not be hired, nor retained as an employee of the Agency with Choice as prescribed as Medicaid regulations.

(3) Direct support workers must receive all required training and additional training necessary to ensure the Direct Support Worker can competently provide the level of services they will be assigned to provide. The services must be provided as requested by the Individual or Authorized Representatives in accordance with these rules and the Person-Centered Service Plan.

(4) Direct support workers must:

(a) Be at least 18 years of age;

(b) Must have sufficient communication and language skills to enable them to perform their duties and interact effectively with the Individual for whom they provide Services and Supports and other Agency with Choice staff; and

(5) A Direct Support Worker cannot be a representative or Legal Representative for an Individual for whom they provide services.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0120 Direct Support Worker Training Requirements

(1) The Agency with Choice must submit their training plan and curriculum for approval by the Department including who will be providing the training.

(a) The training plan must substantially meet the training required by the Oregon Home Care Commission in both content and length of training as defined OAR 418-020-0035; and

(b) The training plan must include how Direct Support Workers will receive Orientation and Competency Based Training and how the Agency with Choice will engage with the Individual to determine what Individual Specific Training is necessary.

(2) Direct support workers must complete an Agency with Choice-specific Orientation. The Orientation must be a minimum of four hours of instruction, obtained online or in person and must be completed prior to serving an Individual. Orientation must include the following topics:

(a) Direct support workers' job description and requirements highlighting the importance of supporting Individual self-direction;

(b) Abuse and mandatory reporting;

(d) Individual rights;

(e) Medication safety;

(f) Preventing Medicaid fraud;

(g) Providing person-centered services;

(h) Universal precautions and infection control;

(i) An overview of the Agency with Choice's policies and procedures as required in OAR 411-039-0060;

(j) A description of the supports provided by the Agency with Choice to the Direct Support Worker; and

(k) Use of the Agency with Choice’s Electronic Visit Verification system that accurately documents the services provided on a daily basis as authorized in the Person-Centered Service Plan.

(3) Competency based training is intended to improve the Direct Support Worker’s ability to better serve the Individuals and should be eight hours of training. Competency based training must be completed within 120 days of the Direct Support Worker beginning work with Individuals. Training should include, but is not limited to:

(a) Recognizing and responding to medical emergencies;

(b) Understanding and recognizing mental and emotional conditions;

(d) Methods and techniques to prevent skin breakdown, tightening of skin, muscles, or tendons limiting movements, and falls;

(e) Proper body movement, posture, alignment, and positioning to prevent injury of the Individual and the Direct Support Worker; and

(f) Providing more details on the topics covered in the Orientation.

(4) Competency evaluations must demonstrate that Direct Support Worker possess the necessary knowledge and skills to perform their assigned duties. Such evaluations may be completed through direct observation, written testing, oral testing, or a combination thereof, as appropriate to the nature of the service provided. Direct observation should be required only when it is determine relevant and necessary by the Agency with Choice.

(5) Individual’s specific training may be required before the Direct Support Worker serves an Individual as requested by the Individual and must be developed in partnership with the Individual. The training must clearly define the Direct Support Workers' duties and responsibilities aligning with the Individual’s self-directed Service Plan, choices and preference.

(6) A Direct Support Worker must receive a minimum of six hours of continuing education each year.

(7) The training required in sections (3) through (10) of this rule must be clearly documented and maintained in each Direct Support Workers personnel record and must include the following information, if applicable:

(a) Content of the training for each topic;

(b) The date(s), times(s) and training topics covered; and

(c) The name(s) and signature(s) of the Agency with Choice-specific orientation instructor, qualified training entity, or Qualified Trainer conducting the training.

(8) An Agency with Choice must maintain sufficient information and documentation to demonstrate that the person(s) or entity providing the training under this rule is a qualified training entity or Qualified Trainer.

(9) Direct Support Workers who have previously served as a homecare worker, personal support worker, personal care attendant, staff at an in-home care agency or as a Direct Support Workers with another Agency with Choice are not subject to additional competency base training requirements if previous training is not expired and documented in the hiring Agency with Choice personnel records. Orientation is still required.

(10) A Direct Support Worker with proof of a current Oregon health-care related license or certificate such as nursing license or certified nursing assistant is exempt from competency base training. A Direct Support Worker must provide annual proof of this license or certificate to remain exempt. Orientation is still required.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0130 Personnel Records

(1) The Agency with Choice shall maintain a personnel record for each Direct Support Worker and employee. An Individual may also maintain documentation of their interview and refences and ongoing employee records. The Individual may share that information with the Agency with Choice.

(2) Each record at minimum must include the following:

(a) General position descriptions signed by the Direct Support Worker or employee. The Individual may have a specific job description that is designed to meet their preferences;

(b) Evidence of orientation, training, competency evaluations, and continuing education. All services must be delivered using a self-directed approach, ensuring that Individuals are empowered and have choice for their support and care; and

(c) Evidence of a valid driver's license with current auto insurance for each staff whose duties include community transportation services.

(3) The Direct Support Worker general job description shall be prepared by the Agency with Choice.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0140 Individual Choice to Receive Agency with Choice Services

(1) The Case Manager must provide the Individual with neutral, comprehensive information about all available in-home service delivery models, including Agency with Choice. Upon the Individual’s request to receive Agency with Choice services, the Case Manager will refer the Individual to the Agency with Choice and authorize services accordingly.

(2) At the request of the Individual for Agency with Choice Services, the Individual’s Case Manager will refer the Individual to the Agency with Choice and authorize services through the Agency with Choice. After authorizing the services through the Agency with Choice, the Case Manager will provide the Individual’s Person-Centered Service Plan to the Agency with Choice. The Case Manager will also provide the approved Task List to the Agency with Choice.

(3) If an Individual has a pre-selected Direct Support Worker who is not currently working with the Agency with Choice, the Agency with Choice will assist the potential Direct Support Worker to be evaluated by the Agency with Choice.

(4) Agency with Choice Services must be provided in accordance with the Person-Centered Service Plan and as directed by the Individual or the Individual Authorized Representative.

(5) Nothing in these rules shall limit the Individual’s choice to receive home and community based services from any authorized provider allowed by the Department or to receive some services from an Agency with Choice and other in-home service models.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0150 Individual Records

(1) An Individual record must be maintained for every Individual and must be maintained in the Agency with Choice’s office.

(2) A legible, reproducible Individual record which is easily accessible including:

(a) Identification data;

(b) Signed disclosure documents and documentation required by these rules including the Individuals' rights documentation required by these rules;

(c) An agreement signed by the Individual or the Authorized Representative before the initiation of services that specifies the services to be provided in accordance with the Person-centered Service Plan; and

(d) End-of-service summary, including the dates of service and the disposition of the Individual.

(3) A list of Agency with Choice Direct Support Workers providing services to an Individual must be documented in the Individual's record at the Agency with Choice. The Individual’s record must also identify back-up coverage during planned or unplanned absence or emergent circumstances where the primary Direct Support Worker is, or workers are, unavailable.

(4) Reasonable precautions must be taken to protect an Individual’s record and information from unauthorized access, fire, water, theft, damage or destruction.

(5) All Individuals' records must be kept for a period of at least seven years after the date of last service.

(6) Individual records must be made available upon request to the Individual and or the representative upon request.

(7) If there is a change in the business entity operating as an Agency with Choice, all Individuals' records must remain with the Agency with Choice. Until a new Licensee has assume control of the Individual’s records, it is the responsibility of the outgoing Licensee to protect and maintain these records. This requirement applies when the underlying business entity changes, regardless of whether there is a Change in Ownership.

(8) Before an Agency with Choice terminates its business, the Agency with Choice must notify the Department at least 60 days in advance and must notify the Department where the Individuals' records will be stored. Copies of all records must be transferred to the Department prior to the closure of the Agency with Choice.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0160 Individual Rights

(1) The Agency with Choice owner, Administrator and Administrator's designee as applicable must ensure that the Agency with Choice recognizes and protects the rights of each Individual.

(2) The Agency with Choice must provide each Individual with a written notice of the Individual's rights as a part of the disclosure statement, prior to providing services to the Individual. The Individual’s rights notice must include:

(a) The right to be treated with dignity and respect;

(b) The right to be free from theft, damage, or misuse of one's personal property;

(c) The right to be given the informed choice and to select or refuse service and to accept responsibility for the consequences;

(d) The right to be free from neglect, verbal, mental, emotional, physical, and sexual Abuse;

(e) The right to be free from financial exploitation;

(f) The right to be free from physical and chemical restraints;

(g) The right to be free from coercion and seclusion;

(h) The right to privacy;

(i) The right to voice Grievances or Complaints regarding services or any other issue without discrimination or reprisal for exercising such rights;

(j) The right to be free from discrimination as to race, color, religion, national origin, age, sex, sexual orientation, gender identity, disability, or any other protected status under state and federal law;

(k) The right and responsibility for the planning of the services to be furnished, the frequency of services to be provided, any changes in services, the Direct Support Workers schedule, and cessation of services;

(l) The right to select or otherwise approve the Direct Support Workers who provide services to the Individual before the Direct Support Workers begin providing the services;

(m) The right to train Direct Support Workers in the Individual’s specific service needs and in the provision services to the Individual;

(n) The right to direct the Individual’s own services that are provided by Direct Support Workers;

(o) The right to require an Agency with Choice to remove a Direct Support Worker from the Individual’s Services and Supports team;

(p) The right to schedule a Direct Support Worker’s time in accordance with the Individual’s desires, needs and authorized hours;

(q) The right to have access to their own records;

(r) The right to have Individual information and records confidentially maintained by the Agency with Choice; and

(s) The right to receive prior written notice before a Change of Ownership or a program closure.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0170 Delivery of Services

(1) In order to meet the Individual’s needs, the Agency with Choice must work with the Individual or their Authorized Representative to develop:

(a) The schedule for the provision of services specifying the total number of hours to be provided per month based on the Department’s authorized hours;

(b) The days of the week services will be provided;

(d) Other pertinent information about the Individual's needs in relation to the services to be provided to ensure the provision of safe and appropriate service delivery.

(2) An Individual or an Authorized Representative may request changes provided the changes do not require modifications to the Individual’s service authorization that would result in a change of authorized hours. All requested changes must be reviewed and approved by the Individual or Authorized Representative. These changes must be communicated to the assigned Direct Support Worker(s) either by phone, or electronic means.

(3) If an Individual experiences a significant Change of Condition that is a major change in the Individual’s health or functional abilities, the Agency with Choice must notify the Case Manager, and document the change. The Direct Support Worker must be updated, as needed.

(4) The Agency with Choice must ensure the Individual or the Authorized Representative is notified of any changes in the delivery of the Agency with Choice Services, as applicable, such as if the Agency with Choice becomes aware a Direct Support Worker is unavailable to cover scheduled hours or shifts.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0180 Initial Visit and Monitoring

(1) A representative of the Agency with Choice, who is not the Direct Support Worker, must contact the Individual at least every six months. Monitoring contacts may occur by phone or by other electronic means determined jointly with the Individual, or their Authorized Representative. The contact may not be conducted by a Direct Support Worker.

(2) The Agency with Choice, who is not the Direct Support Worker, must conduct at least one in-home visit with the Individual each 12 months, at a time determined jointly with the Individual or the Authorized Representative. The annual in-home visit replaces the need for a six-month monitoring visit. The in-home visit may not be conducted by a Direct Support Worker.

(3) Each contact and visit must be documented, dated, and signed by the Agency with Choice representative who conducted the visit or contact. The contacts and in-home visit should document the Individual’s level of satisfaction with their services, any concerns or support they need to continue to self-direct their services.

(4) Documentation of the contacts and visits must be made available to the Department, if requested.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0190 Quality Assurance and Performance Improvement

(1) An Agency with Choice must establish and maintain an effective, quality assurance and performance improvement program that evaluates and monitors the quality, safety, retention of Direct Support Workers, and appropriateness of services provided by the Agency with Choice, and must include at a minimum:

(a) A method to identify, analyze and correct events listed in OAR 411-039-0060 (9)(a), issues with infection control and other aspects of performance relating to services provided;

(b) A method to identify, and track quality indicators by high risk, high volume, problem prone areas and by the effect on Individual safety and quality of the services received;

(c) A method to ensure services provided by the Agency with Choice are self-directed by the Individual and honor the Individual’s needs and preferences; and

(d) A method to analyze workforce trends, proactive responses to identified challenges, address systemic issues, such as like high turnover among Direct Support Workers.

(2) After an analysis of the causes for any issues identified in section (1) of this rule, develop and implement a performance improvement program to ensure staff are trained in and familiar with any identified quality improvement activities.

(3) The improvement activities must be reviewed by a committee comprised of, at a minimum, Agency with Choice administrative staff, Direct Support Workers, and at least one Individual receiving Agency with Choice Services.

(4) Quality improvement activities must be conducted and documented at least quarterly. All reports of the quality assurance system and performance improvement must be submitted to the Department.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0200 Program Review and Investigations

(1) The Department must conduct a program review as defined in OAR 411-039-0030(3).

(2) The Department must conduct and complete an investigation upon receipt of information or allegations an Agency with Choice is not operating in compliance with these rules and complete the investigation within 90 days. For Abuse investigations must occur within the timeframes established in those rules.

(3) Program reviews and investigations may be conducted at other times as the Department deem necessary including:

(a) To determine if cited violations have been corrected;

(b) For the purpose of routine monitoring of Individual’s services, or to investigate a Grievance, Complaint or Formal Complaint;

(c) The Department has reason to believe the Agency with Choice has violated a regulation or provision of these rules; or

(d) The Department has reason to believe the Agency with Choice is operating without a license.

(4) The Department may conduct a program review or investigation without advance notification.

(5) An Agency with Choice must permit the Department staff access to any physical Agency with Choice business location from which it is operating its Agency with Choice. Department access to Individual’s homes should be coordinated with the Individual.

(6) Following a program review, the Department will conduct an exit conference with an Agency with Choice owner, Administrator, or Administrator's designee. During the exit conference, Department staff must:

(a) Inform the Agency with Choice owner, administrator, or Administrator's designee of the preliminary findings of the program review; and

(b) Give the owner, Administrator, or Administrator's designee an opportunity to submit additional facts or other information to the Department in response to the findings.

(7) When findings result in a referral to another regulatory agency, the Department staff must submit the applicable information to that agency for its review and determination of appropriate action.

(8) If no deficiencies are found during a program review, the Department must issue a written report to the Agency with Choice owner indicating that fact within 30 days of the exit conference confirming compliance with program rules.

(9) If deficiencies are found, the Department must issue a statement of deficiencies within 15 days of the exit conference citing the rule(s) alleged to be violated, the facts supporting the allegation, and a date by which corrections must be made. The written statement may include specific actions that must be taken for the Agency with Choice to maintain their license.

(10) A copy of the most current program review report and any conditions placed upon the license must be posted with the Agency with Choice license in public view near the main entrance to the Agency with Choice.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0210 Complaints

(1) Any person who believes these rules have been violated may file a Complaint verbally or in writing to the Department regarding an allegation as to the services provided by an Agency with Choice or violations of Agency with Choice laws or regulations.

(2) The identity of a person making a Complaint and Formal Complaint and any personally identifiable information of the reporter or someone else, is confidential and not subject to disclosure and can only be disclosed when legally required.

(3) Upon conclusion of an investigation of a Complaint, the Department may publicly release a report of its findings. However, the publicly released report must not disclose the identity of the complainant, witness, or any Individual associated with an Agency with Choice.

(4) The Department may use any information obtained during an investigation in an administrative or judicial proceeding concerning the licensing of an Agency with Choice.

(5) Any Agency with Choice employee who becomes aware of a violation of a law or these rules must immediately report it to the Department.

(6) The Agency with Choice must not interfere with a good faith disclosure of information by an employee or volunteer concerning violation(s) of laws or rules.

(7) The Licensee and Administrator must ensure any complainant, witness, or employee of an Agency with Choice is not subjected to retaliation by any Agency with Choice employee, for making a report, being interviewed about a Complaint, or being a witness, including, but not limited to, restriction of access to the Individual or, if an employee, dismissal or harassment.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0220 Abuse Reporting and Investigations

(1) Agency with Choice employees, agents and Licensee must not permit, aid, or engage in Abuse of Individuals who are served by the Agency with Choice. All Agency with Choice staff are Mandatory Reporters of Abuse.

(a) All Agency with Choice employees are required to immediately report Abuse or suspected Abuse to the ODHS SAFE line (1-855-503-SAFE (7233)), local APD office, local AAA office, or local law enforcement agency;

(b) The Agency with Choice Administrator, or designee, must immediately notify the local APD office, local AAA, or Department of any incident of Abuse or suspected Abuse, including events overheard or witnessed by observation;

(c) The local law enforcement agency must be called first when the suspected Abuse is believed to be a crime, including neglect that rises to a crime, financial exploitation, etc.; and

(d) Physical injury of unknown cause must be reported to the local APD office, local AAA, or Department as suspected Abuse.

(2) Upon any allegation of an event defined in OAR 411-039-0060 (9)(a) or Abuse, the Agency with Choice must promptly investigate, and document the report and take measures necessary to protect the Individual and prevent the reoccurrence of the event or Abuse. The investigation must document:

(a) Time, date, place and Individuals present;

(b) Description of the event as reported;

(d) Follow-up action; and

(e) Administrator’s review.

(3) Upon substantiation of Abuse, the Department must provide written notification of the findings to the Individual involved, and the Agency with Choice as defined in OAR chapter 411, division 020.

(4) The Agency with Choice must not hamper nor impede the Department or law enforcement from investigating Abuse and suspected crimes and must give full access of Agency with Choice records, including but not limited to alleged victim records, and Direct Support Worker training records. The Department must be able to interview all Agency with Choice employees, including Direct Support Workers without an Agency with Choice Administrator present, unless it is requested by them.

(5) An Agency with Choice must immediately terminate employment of a Direct Support Worker who has a substantiated claim of Abuse or neglect of an Individual from serving any Individual. If the Direct Support Worker was involved in other events listed in OAR 411-039-0060 (9)(a), the Agency with Choice will discuss with the Individual if they are comfortable with the Direct Support Worker continuing to provide Services and Supports.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0230 Enforcement

(1) Upon receipt of a statement of deficiencies, an Agency with Choice must be provided an opportunity to dispute the Department’s program review findings but must still comply with sections (2) and (3) of this rule.

(a) If an Agency with Choice desires an informal conference to dispute the Department's program review findings, the Agency with Choice must notify the Department in writing within 10 business days after receipt of the statement of deficiencies. The written request must include a detailed explanation of why the Agency with Choice believes the statement of deficiencies is incorrect;

(b) An Agency with Choice may not seek a delay of any enforcement action against it on the grounds the informal conference has not been completed; and

(c) If an Agency with Choice is successful in demonstrating the deficiencies should not have been cited, the Department may reissue the statement of deficiencies, removing such deficiencies. The reissued statement of deficiencies must state that it supersedes the previous statement of deficiencies and must clearly identify the date of the superseded statement of deficiencies;

(2) A signed plan of correction must be submitted to the Department within 10 business days from the date the statement of deficiencies was received by the Agency with Choice.

(3) An Agency with Choice must correct all deficiencies within 30 days from the date the statement of deficiencies was received by the Agency with Choice, unless an extension of time is requested from the Department. A request for such an extension must be submitted in writing and must accompany the plan of correction.

(4) The Department must determine if a written plan of correction is acceptable. If the plan of correction is not acceptable to the Department, the Department must notify the Agency with Choice owner or Administrator in writing:

(a) Identifying which provisions in the plan the Department finds unacceptable;

(b) Citing the reasons, the Department finds the provisions unacceptable; and

(c) Requesting that the plan of correction be modified and resubmitted no later than 10 business days from the date notification of non-compliance was received by the Agency with Choice owner or Administrator.

(5) If the Agency with Choice does not come into compliance by the date of correction reflected on the plan of correction or 30 days from the date of the exit conference, whichever is sooner, the Department may propose to deny, suspend or revoke the Agency with Choice license or impose civil penalties.

(6) An Agency with Choice must have an active license to operate. If a person or entity is found to be operating as an Agency with Choice without a valid license, the unlicensed Agency with Choice must, within 14 days of the receipt of an injunction obtained by the Department:

(a) Inform its Individuals receiving services that the Agency with Choice can no longer provide services; and

(b) Cease providing services to Individuals.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0240 Civil Penalties

(1) An Agency with Choice that violates applicable laws, rules, or a final order as determined by the Department, may be subject to the imposition of a civil penalty not to exceed $1,000 per violation.

(2) An Individual or entity who operates an AWC without a license is subject to the imposition of a civil penalty not to exceed $1,000 a day per violation.

(3) Violates applicable, but is not limited to:

(a) Failure to provide a written disclosure statement to the Individual or the representative prior to Agency with Choice Services being rendered;

(b) Failure to provide the contracted Agency with Choice Services;

(d) Refusal to allow access and program review.

(4) In determining the amount of a civil penalty, the Department must consider whether:

(a) The Department made repeated attempts to obtain compliance;

(b) The Licensee has a history of non-compliance with licensing laws and rules;

(d) There are mitigating factors, such as a Licensee’s cooperation with an investigation or actions to come into compliance.

(5) The Department must document its consideration of the factors in section (4) of this rule.

(6) Each day a violation continues is an additional violation.

(7) A civil penalty imposed under this rule must comply with ORS 183.746.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0250 Conditions

(1) Conditions may be attached to a license and take effect immediately upon issuance by the Department. The type of condition attached to a license must directly relate to a risk of harm or potential risk of harm to Individuals. Conditions may be attached upon a finding that:

(a) Information on the application or initial program review requires a condition to protect the health, safety, or welfare of the Individuals;

(b) A threat to the health, safety, or welfare of an Individual exists;

(d) The Agency with Choice is not being operated in compliance with these rules.

(2) Examples of conditions that may be imposed on a Licensee include, but are not limited to:

(a) Restricting the total number of Individuals served based on the Agency with Choice ability to meet the health and safety needs includes restricting new admissions when a threat to the current Individuals exists and adding new Individuals would compound that threat.

(b) Requiring additional qualifications or training of Licensee and staff.

(3) The Department must notify the Licensee in writing of any conditions imposed, the reason for the conditions, and be given an opportunity to request a hearing under Oregon Laws 2024, chapter 37, section 1 (13). A Licensee must request a hearing in writing within 21 calendar days after the date the notice was personally served or mailed. Conditions take effect immediately and are a final order of the Department unless later rescinded.

(4) In addition to, or in-lieu of, a contested case hearing, a Licensee may request an informal conference with the Department to discuss conditions imposed. The informal conference does not diminish the Licensee's right to a hearing.

(5) Conditions imposed remain in effect, until the Department has sufficient cause to believe the situation that warranted the condition has been remedied. If the Licensee believes the situation that warranted the condition has been remedied, the Licensee may request in writing to the Department that the condition be removed.

(6) Conditions must be posted with the license in a prominent place in the Agency with Choice and be available for inspection at all times.

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0260 Denial, Suspension or Revocation of License

(1) The Department may deny, suspend, or revoke the license of an Agency with Choice, in accordance with Oregon Laws 2024, chapter 37, section 1 (13), for the Agency with Choice’s failure to comply with these rules or if a Licensee or Administrator of the Agency with Choice permits, aids, or abets any illegal act affecting the welfare of an Individual.

(2) This section does not supersede or limit any other authority of the Department with regarding oversight of contracting entities or the imposition of civil penalties.

(3) If the Department intends to suspend, revoke, or deny an Agency with Choice license, it must do so in accordance with ORS 183.411 through 183.470.

(4) At any time, the Department may issue a Notice of Emergency License Suspension under ORS 183.430(2).

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Or. Admin. R. 411-039-0270 Financial Transparency and Reporting Requirements

(1) The rate paid to the Agency with Choice requires that:

(a) The Agency with Choice will ensure that no less than 85 percent of the total payments to the Agency with Choice is spent on total compensation for Direct Support Workers who furnish those services. For the purpose of these rules, total compensation includes wages and benefits including, but not limited to, health insurance, retirement plans, life and disability insurance, paid time off, mileage, employer employment taxes, employee employment taxes, employee required training, and workers compensation; and

(b) The amount for administration and overhead may not exceed 15 percent of the rate paid to the Agency with Choice by the Department.

(2) Any rate increase provided by the Department requires the Agency with Choice to maintain the 85 percent direct care worker compensation and benefits threshold.

(3) The Agency with Choice must ensure that any increase intended to improve Direct Support Workers’ compensation must be fully passed on to Direct Support Worker compensation and benefits.

(4) The Agency with Choice must file annually with the Department detailed cost reports based on the Agency with Choice’s reporting period for the period ending each June 30th, and as requested by the Department. The Agency with Choice must submit the cost report no later than October 31st of each year.

(5) The required cost report details include the following Agency with Choice expenditures:

(a) Average hourly wage provided to Direct Support Workers;

(b) Total costs of Direct Support Worker wages and the hours provided to Individuals;

(d) Total costs for overtime of Direct Support Workers, the percentage of Direct Support Workers receiving overtime, and the average number of overtime hours worked per week;

(e) Total costs for mileage reimbursement to Direct Support Workers;

(f) Supervisor and trainer wages, benefits and other expenses;

(g) Administrative costs and hours including CEO compensation; and

(h) Other overhead including, but not limited to, details on building, IT and corporate costs.

(6) The Agency with Choice must provide early cost reports if any of the following is true:

(a) The cost report is requested by the Department;

(b) There is a change of ownership; or

History

Statutory/Other Authority: Or Laws 2024, ch. 37
Statutes/Other Implemented: ORS 124.050 & Or Laws 2024, ch. 37
APD 17-2025, adopt filed 12/10/2025, effective 12/15/2025

Division 40 MEDICAID HOME DELIVERED MEALS

Or. Admin. R. 411-040-0000 Purpose and Scope

(1) Medicaid home delivered meals may be provided to eligible seniors and people with disabilities as part of a Medicaid long term care services plan to assist a participant to remain in their own home. Provision of home delivered meals reduces the reliance on paid staff during some meal times.

(2) Home delivered meals are available to eligible participants who choose to receive these services in lieu of meal preparation services.

History

Statutory/Other Authority: ORS 410.070, 411.060 & 411.070
Statutes/Other Implemented: ORS 410.070
APD 14-2014, f. & cert. ef 6-4-14
SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
Reverted to SPD 12-2004, f. & cert. ef. 6-1-04
SPD 26-2011(Temp), f. & cert. ef. 12-20-11 thru 6-13-12
SPD 12-2004, f. & cert. ef. 6-1-04
SSD 11-1982, f. & ef. 10-1-82

Or. Admin. R. 411-040-0010 Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 040:

(1) "Approved Carrier" means the United States Postal Service, or other carrier, who can ensure providers have passed criminal background checks to protect the well-being of the Medicaid eligible participant. Use of an Approved Carrier must be approved by the Department, Aging and People with Disabilities or the Area Agency on Aging (AAA).

(2) “Client Liability” means the dollar amount participants with excess income must contribute to the cost of service pursuant to OAR 461-160-0610 and 461-160-0620.

(3) "Department" means the Department of Human Services (DHS).

(4) "Homebound" means that leaving home is a significant effort to the point that leaving home unassisted is not normally possible.

(5) "Home Delivered Meals" means meals that are delivered to a Medicaid eligible participant in their own home or apartment per 411-040-0035 of this rule.

(6) "Meal preparation" means safely preparing food as defined in 411-015-0007(6).

(7) "Medicaid eligible individual" means a participant who meets the eligibility criteria defined in OAR 411-015-0000 through 411-015-0100.

(8) "Medicaid Home Delivered Meal Provider" means an approved home delivered meal provider that meets the qualifications in these rules and has an active Medicaid provider number.

(9) "Natural Supports" means resources and supports (e.g. relatives, friends, significant others, neighbors, roommates, or the community) who are willing to voluntarily provide services to an individual without the expectation of compensation. Natural supports are identified in collaboration with the individual and the potential "natural support". The natural support is required to have the skills, knowledge and ability to provide the needed services and supports.

(10) "Nutrition education" means a program to promote better health by providing accurate and culturally sensitive nutrition, physical fitness, or health (as it relates to nutrition) information and instruction to participants, caregivers, or participants and caregivers in a group or individual setting overseen by a dietitian or individual of comparable expertise.

(11) “Nutrition screening survey" means the act of screening a participant’s nutrition risk.

(12) "Participant" means a Medicaid eligible individual receiving Medicaid home delivered meals.

(13) "Provider" means Medicaid home delivered meal provider.

History

Statutory/Other Authority: ORS 410.070, 411.060 & 411.070
Statutes/Other Implemented: ORS 410.070
APD 14-2014, f. & cert. ef 6-4-14

Or. Admin. R. 411-040-0020 Client Eligibility and Responsibilities

(1) To be eligible for Medicaid home delivered meals a participant must:

(a) Be Medicaid eligible per 411-015-0100, and be receiving Medicaid long term services and supports in their own home;

(b) Be home-bound;

(d) Not have natural supports available that are willing and able to provide meal preparation services.

(2) To remain eligible for home delivered meals, participants are responsible for payment of their specified monthly client liability amount so home-delivered meals can be authorized.

(3) If the participant is determined ineligible for Medicaid home delivered meals, but needs food assistance, the case manager shall refer the participant to the nearest Aging and Disability Resource Connection for assistance.

History

Statutory/Other Authority: ORS 410.070, 411.060 & 411.070
Statutes/Other Implemented: ORS 410.070
APD 14-2014, f. & cert. ef 6-4-14

Or. Admin. R. 411-040-0030 Medicaid Home Delivered Meal Provider Qualifications and Responsibilities

(1) To be in alignment with the provision of services, home delivered meal providers must have contracts with, or be, an AAA as defined in 411-002-0100(1).

(2) The provider must be in compliance, during all stages of food service operation, with applicable federal, state and local regulations, codes, and licensor requirements relating to fire; health; sanitation; safety; building and other provisions relating to the public health, safety, and welfare of meal patrons.

(3) The provider must demonstrate that menu standards are developed to sustain and improve a participant’s health through the provision of safe and nutritious meals that are approved by a dietician.

(4) Each provider must be an enrolled Medicaid provider approved to provide Medicaid home delivered meals.

(5) The provider must ensure that all requirements in OAR 411-040-0035 through 411-040-0037 are met.

(6) Providers must ensure that anyone who delivers meals:

(a) Have passed a background check as defined in OAR 407-007-0275; or

(b) Uses an approved carrier.

(7) All requests for Medicaid home delivered meals received by the provider must be referred to the Department or the Medicaid AAA office for prior authorization.

(8) Meal providers must not solicit program income or voluntary donations from Medicaid eligible participants.

History

Statutory/Other Authority: ORS 410.070, 411.060 & 411.070
Statutes/Other Implemented: ORS 410.070
APD 14-2014, f. & cert. ef 6-4-14

Or. Admin. R. 411-040-0035 Meal Requirements

(1) Each meal served must meet the current United States Department of Agriculture and Health and Human Services Dietary Guidelines and contain at least 33-1/3 percent of the current Dietary Reference Intakes as established by the Food and Nutrition Board of the National Academy of Science-National Research Council.

(2) Foods must be prepared, served, and transported:

(a) With the least possible manual contact;

(b) With suitable utensils; and

(3) Meals may be hot, cold, frozen, dried, or canned with a satisfactory storage life.

(4) Meal frequency.

(a) In areas where the frequency of serving meals five or more days per week is not feasible, per the area plan, nutrition providers have the ability to provide meals at less frequent intervals.

(b) For participants whose case managers have assessed the participant as having low risks, during the Medicaid Risk Assessment process and as part of the individualized service plan, the provider may be authorized to provide frozen meals not to exceed 31 days’ worth of meals.

(5) All providers will have a safety plan to ensure participants will receive meals during emergencies, weather-related conditions, and natural disasters. Plans could include, but are not limited to, shelf-stable emergency meal packages, four-wheel drive vehicles, and volunteer arrangements with other community resources.

History

Statutory/Other Authority: ORS 410.070, 411.060 & 411.070
Statutes/Other Implemented: ORS 410.070
APD 14-2014, f. & cert. ef 6-4-14

Or. Admin. R. 411-040-0036 Service Requirements

(1) Except as provided in subsection (2), providers must provide:

(a) In-person delivery whereby a paid staff or volunteer delivers the meal to the participant’s home. To the extent possible, the staff or volunteers must report any changes in participant’s condition or concerns to the participant’s case manager.

(b) Nutrition screening survey.

(A)The nutrition screening survey must be designed to indicate signs of poor nutritional health. In situations in which the screening shows that the individual has poor nutritional health, the provider will contact the participant’s Medicaid case manager.

(B) Nutrition screening surveys will be completed at intake and at annual updates.

(A) Nutrition education will be provided a minimum of one time per year.

(B) Nutrition education is required to be offered at the first nutrition risk assessment.

(2) In situations where the AAA has approved alternative delivery carriers, the home delivered meal provider must have weekly contact with the participant to determine if there are any changes in condition or concerns.

History

Statutory/Other Authority: ORS 410.070, 411.060 & 411.070
Statutes/Other Implemented: ORS 410.070
APD 14-2014, f. & cert. ef 6-4-14

Or. Admin. R. 411-040-0037 Staff and Volunteer Requirements

(1) Prior to having direct contact with participants, staff and volunteers must successfully pass a criminal background check.

(2) All staff and volunteers involved in food preparation will have training in:

(a) Portion control;

(b) FDA Food Code practices for sanitary handling of food;

(d) Agency safety policies and procedures.

(3) All staff and volunteers having direct contact with a participant will have training in:

(a) Protecting confidentiality;

(b) How to report concerns, which may include: change of condition; self-neglect, and abuse, to appropriate staff for follow-up; and

(c) When to report to the case manager any participants considered high risk, as a result of the nutrition risk assessment.

History

Statutory/Other Authority: ORS 410.070, 411.060 & 411.070
Statutes/Other Implemented: ORS 410.070
APD 14-2014, f. & cert. ef 6-4-14

Or. Admin. R. 411-040-0040 Provider Payment

(1) Providers will be reimbursed on a per meal basis, no more than 1 meal per day within the month.

(2) Provider rates will be published on the Department’s rate table.

History

Statutory/Other Authority: ORS 410.070, 411.060 & 411.070
Statutes/Other Implemented: ORS 410.070
APD 14-2014, f. & cert. ef 6-4-14

Or. Admin. R. 411-040-0050 Local Office Responsibility and Oversight

(1) The Department shall establish, authorize, purchase, and monitor the standards for Medicaid paid home delivered meals.

(2) Case managers must authorize Medicaid home delivered meal services.

(3) Subsequent yearly nutrition education:

(a) May be determined by local Medicaid home delivered meal providers; and

(b) Will be monitored by the Medicaid case manager at least annually.

(4) Provision of the home delivered meals reduces the need for reliance on paid staff during some meal times, so meal preparation hours in the service plan must be reduced.

(5) The Department shall make payments to Medicaid paid home delivered meal providers for all home-delivered meals provided to participants.

History

Statutory/Other Authority: ORS 410.070, 411.060 & 411.070
Statutes/Other Implemented: ORS 410.070
APD 14-2014, f. & cert. ef 6-4-14

Or. Admin. R. 411-040-0060 Impact on Client Liability

(1) The cost for home delivered meals shall be calculated into the service plan, in addition to in-home services provided by a client-employed provider or a home care agency.

(2) Participants required to make a client contribution, under OAR 461-185-0050, must have their home-delivered meal costs added to cost of care calculations.

History

Statutory/Other Authority: ORS 410.070, 411.060 & 411.070
Statutes/Other Implemented: ORS 410.070
APD 14-2014, f. & cert. ef 6-4-14

Division 44 OREGON LIFESPAN RESPITE CARE PROGRAM

Or. Admin. R. 411-044-0000 Purpose and Scope

Lifespan respite care is a community-based system of accessible respite care services for any individual and/or family regardless of age, income, ethnicity, race, special need or situation. Lifespan respite care services can include providing respite-related information to the community, recruitment and training of paid and volunteer respite providers, connecting individuals and/or families with respite care providers and linking individuals and/or families with respite care payment resources.

History

Statutory/Other Authority: ORS 409.050 & 409.474
Statutes/Other Implemented: ORS 409.450 – 409.478
Renumbered from 410-015-0000 by SPD 25-2006, f. 7-12-06 cert. ef. 7-14-06
Suspended by OMAP 4-1999, f. & cert. ef. 2-23-99
OMAP 42-1998(Temp), f. & cert. ef. 11-9-98 thru 5-8-99
OMAP 19-1998, f. & cert. ef. 5-4-98

Or. Admin. R. 411-044-0010 Definitions

(1) "Department" means the Department of Human Services of the State of Oregon.

(2) "Special Needs" may encompass physical, emotional, and/or mental illnesses and/or conditions an individual may experience which result in the need for ongoing care and supervision, such as:

(a) Developmental disabilities;

(b) Physical disabilities;

(d) Emotional and behavioral disorders;

(e) Alzheimer's disease and related disorders;

(f) Chronic illness; and

(g) Medical fragility.

(3) "Special Situations" may include:

(a) A time in which a high risk of abuse and/or neglect may exist; and/or

(b) Other circumstances as defined by the governing body of the community-based lifespan program.

History

Statutory/Other Authority: ORS 409.050 & 409.474
Statutes/Other Implemented: ORS 409.450 – 409.478
Renumbered from 410-015-0010 by SPD 25-2006, f. 7-12-06 cert. ef. 7-14-06
Suspended by OMAP 4-1999, f. & cert. ef. 2-23-99
OMAP 42-1998(Temp), f. & cert. ef. 11-9-98 thru 5-8-99
OMAP 19-1998, f. & cert. ef. 5-4-98

Or. Admin. R. 411-044-0020 Application Procedures

(1) The Department may solicit applications for the development and implementation of community-based lifespan respite care services systems.

(2) Applicants shall be:

(a) Private non-profit;

(b) For profit;

(d) A coalition that has a designated fiscal agent.

(3) Applicants shall submit the application before the closing date and time specified in the application procedure.

(4) Applications shall contain at a minimum the following information:

(a) The name, address and telephone number of the applicant organization;

(b) The name, address and telephone number of the contact person;

(c) The names, addresses and telephone numbers of community partners participating in the development and implementation of the lifespan respite care program representing children, adults, seniors, and individuals with special needs;

(d) A projected budget detailing the project's financial needs, expenses, and other sources of support; and

(e) Any other information requested by the Department in the application packet.

History

Statutory/Other Authority: ORS 409.050 & 409.474
Statutes/Other Implemented: ORS 409.450 – 409.478
Renumbered from 410-015-0020 by SPD 25-2006, f. 7-12-06 cert. ef. 7-14-06
Suspended by OMAP 4-1999, f. & cert. ef. 2-23-99
OMAP 42-1998(Temp), f. & cert. ef. 11-9-98 thru 5-8-99
OMAP 19-1998, f. & cert. ef. 5-4-98

Or. Admin. R. 411-044-0030 Application Review

(1) The Department shall review all applications and may request any additional information needed to assure applications are complete.

(2) After an application is determined to be complete and concordant with the intended goals and outcomes of the program, it shall be forwarded to the Lifespan Advisory Review Committee, a sub-committee of the Oregon Family Support Council, for review and possible recommendation for selection approval.

(3) In reviewing applications, the Committee shall consider the following elements:

(a) The amount of available funds for the Oregon Lifespan Respite Care Program;

(b) The existence of a strong community coalition representing children, adults and seniors with special needs and situations. The coalition should include, but not be limited to, members from the following areas:

(A) Families and/or consumers;

(B) Respite providers;

(D) State, federal and/or county agencies;

(E) Private businesses;

(F) Civic, social and community organizations;

(G) Faith communities; and

(H) Community volunteers.

(c) The willingness and ability to contract with the Department and participate in all required Oregon Lifespan Respite Care Program activities;

(d) The ability to articulate program outcomes and strategies, which include Family Support principles, as described in ORS 417.342;

(e) The amount of in-kind services;

(f) The stability of other funding sources; and

(g) Additional departmental administrative costs or responsibilities associated with the individual application.

History

Statutory/Other Authority: ORS 409.050 & 409.474
Statutes/Other Implemented: ORS 409.450 – 409.478
Renumbered from 410-015-0030 by SPD 25-2006, f. 7-12-06 cert. ef. 7-14-06
Suspended by OMAP 4-1999, f. & cert. ef. 2-23-99
OMAP 42-1998(Temp), f. & cert. ef. 11-9-98 thru 5-8-99
OMAP 19-1998, f. & cert. ef. 5-4-98

Or. Admin. R. 411-044-0040 Selection

(1) The Director of the Department of Human Services or his/her designee shall make the final decision regarding selection of community-based lifespan respite programs.

(2) The Department shall notify applicants in writing of the approval or rejection of the applications.

(3) Selected applicants shall:

(a) Develop and maintain a point of contact for access to lifespan respite care services within a designated geographical area;

(b) Develop and maintain a mechanism to recruit and screen potential respite providers and volunteers;

(c) Identify local training resources and coordinate respite training opportunities for caregivers, respite providers, and families;

(d) Publicize the lifespan respite care program phone number and address; and

(e) Comply with all program policies and guidelines established by the Oregon Lifespan Respite Care Program.

(4) Selected applicants shall make available to the Department records and materials necessary to provide funding and to monitor the program, including projected and actual budgets, performance criteria and reports.

(5) If the term and conditions are not met, the Department may, upon written notice, take one or more of the following actions:

(a) Immediately revoke approval of funding;

(b) Require repayment of all or a portion of any funds advanced; or

History

Statutory/Other Authority: ORS 409.050 & 409.474
Statutes/Other Implemented: ORS 409.450 – 409.478
Renumbered from 410-015-0040 by SPD 25-2006, f. 7-12-06 cert. ef. 7-14-06
Suspended by OMAP 4-1999, f. & cert. ef. 2-23-99
OMAP 42-1998(Temp), f. & cert. ef. 11-9-98 thru 5-8-99
OMAP 19-1998, f. & cert. ef. 5-4-98

Division 45 PROGRAM OF ALL-INCLUSIVE CARE FOR THE ELDERLY (PACE)

Or. Admin. R. 411-045-0000 Purpose

(1) The Program of All-inclusive Care for the Elderly (PACE) is a permanent provider type under Medicare that allows states the option to pay for PACE services under Medicaid. The PACE program is capitated by both Medicare and Medicaid to provide all medical and long-term care services.

(2) The intent of these rules is to implement the PACE program as administered by the Department of Human Services and to address the responsibilities of the Department as the state administering agency under 42 CFR 460, that includes additional obligations of coordination with CMS in the administration of the Medicare aspects of the PACE program. The Department will regularly consult with CMS in conducting related responsibilities and in the implementation of the PACE program through the submission of appropriate state plan amendments and the PACE program agreement.

History

Statutory/Other Authority: ORS 410.090
Statutes/Other Implemented: ORS 410.070
SPD 2-2005, f. & cert. ef. 1-4-05
SDSD 5-2000, f. 12-29-00 cert. ef. 1-1-01

Or. Admin. R. 411-045-0010 Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 045:

(1) Administrative Hearing — A hearing related to a denial, reduction, or termination of benefits that is held when requested by the PACE participant or his or her representative. A hearing may also be held when requested by a PACE participant who believes a claim for services was not acted upon with reasonable promptness or believes the payor took an action erroneously.

(2) Advance Directive — A process that allows a person to have another person make health care decisions when he or she is unable to make the decision and tell a doctor what life sustaining measures to take if he or she is near death.

(3) Aging and People with Disabilities Division (APD) — A division within the Department that is the designated State Unit on Aging (SUA) that also administers Medicaid's long-term care program. APD is responsible for nursing facility and Medicaid home and community-based services for eligible older adults and individuals with disabilities. APD includes local offices and the AAAs who have contracted to perform specific functions of the licensing and enrollment processes.

(4) Alternate Service Settings — Residential 24-hour care facilities that include, but are not limited to, residential care facilities, assisted living facilities, adult foster homes, and nursing facilities.

(5) Americans with Disabilities Act (ADA) — Federal law defining the civil rights of persons with disabilities. The ADA requires that reasonable accommodations be made in employment, service delivery, and facility accessibility.

(6) Ancillary Services — Those medical services that are medically appropriate to support a covered service under the PACE benefit package. A list of ancillary services and limitations is specified in DMAP's Ancillary Services Criteria Guide.

(7) Appeal — A PACE participant's action taken with respect to any instance where the PACE program reduces, terminates, or denies a covered service.

(8) Area Agency on Aging (AAA) — An established public agency within a planning and service area designated under Section 305 of the Older American's Act that has responsibility for local administration of Department programs. AAAs contract with the Department to perform specific activities in relation to PACE programs including processing of applications for Medicaid and determining the level of care required under Oregon's State Medicaid Plan for coverage of nursing facility services.

(9) Assessment — The determination of a participant's need for covered services. An assessment involves the collection and evaluation of data by each of the members of the Interdisciplinary Team pertinent to the participant's health history and current problems obtained through interview, observation, and record review. The Assessment concludes with one of the following:

(a) Documentation of a diagnosis providing the clinical basis for a written care plan; or

(b) A written statement that the participant is not in need of covered services for a particular condition.

(10) Automated Information System (AIS) — A computer system that provides information on the current eligibility status for participants under the Medical Assistance Program.

(11) Care Plan — Service plan as defined in this rule.

(12) Centers for Medicare and Medicaid Services (CMS) — Formerly known as the Health Care Financing Administration (HCFA). The federal agency under the Department of Health and Human Services that is responsible for approving the PACE program and joining the state in signing an agreement with the PACE program once it has been approved as a provider under 42 CFR Part 460.

(13) Clinical Record — The clinical record includes, but is not limited to, the medical, social services, dental, and mental health records of a PACE participant. Clinical records include the Interdisciplinary Team's records, hospital records, and grievance and disenrollment records.

(14) Comfort Care — The provision of medical services or items that give comfort or pain relief to a participant who has a terminal illness. Comfort care includes the combination of medical and related services designed to make it possible for a participant with terminal illness to die with dignity, respect, and with as much comfort as is possible given the nature of the illness. Comfort care includes but is not limited to, pain medication, palliative services, and hospice care including those services directed toward ameliorating symptoms of pain or loss of bodily function or to prevent additional pain or disability. These guarantees are provided pursuant to 45 CFR, Chapter XIII, 1340.15. Where applicable comfort care is provided consistent with Section 4751 OBRA 1990 — Patient Self-Determination Act and ORS 127.505-127.660 and 127.800-127.897 relating to health care decisions. Comfort care does not include diagnostic or curative care for the primary illness or care focused on active treatment of the primary illness and intended to prolong life.

(15) Community Standard— Typical expectations for access to the health care delivery system in the PACE participant's community of residence. The Department requires that the health care delivery system available to PACE participants take into consideration the community standard and be adequate to meet the needs of PACE participants except where the community standard is less than sufficient to ensure quality of care.

(16) Covered Services — Those diagnoses, treatments, and services listed in OAR 410-141-0520. In addition, all services that are to be covered by Medicare are covered services even if the services fall below the currently funded line for the Oregon Health Plan. Covered services also include those services listed in 42 CFR Sections 460.92 and 460.94.

(17) Dentally Appropriate — Services that are required for prevention, diagnosis, or treatment of a dental condition and that are:

(a) Consistent with the symptoms of a dental condition or treatment of a dental condition;

(b) Appropriate with regard to standards of good dental practice and generally recognized by the relevant scientific community and professional standards of care as effective;

(d) The most cost effective of the alternative levels of dental services that may be safely provided to a PACE participant.

(18) Dental Emergency Services — Dental services provided for severe pain, bleeding, unusual swelling of the face or gums, or an avulsed tooth.

(19) Department — The Department of Human Services.

(20) DHS — Department of Human Services (DHS).

(21) Disenrollment — The act of discharging a PACE participant from a PACE program. After the effective date of disenrollment a PACE participant is no longer authorized to obtain covered services from the PACE program.

(22) Emergency Services — The health care and services provided for diagnosis and treatment of a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, may reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.

(23) Enrollment — A process for the PACE program. A PACE participant's enrollment with a PACE program indicates that the PACE participant obtains from, or is referred by, the PACE program for all covered services.

(24) Grievance — A PACE participant's or the participant's representative's clear expression of dissatisfaction with the PACE program that addresses issues that are part of the PACE program's contractual responsibility. The expression states the reason for the dissatisfaction and may be in whatever form of communication or language that is used by the participant or the participant's representative.

(25) Health Management Unit (HMU) — The DMAP unit responsible for adjustments to enrollments and retroactive disenrollments.

(26) Interdisciplinary Team (IDT) — PACE staff and PACE subcontractors with current and appropriate licensure, certification, or accreditation who are responsible for assessment and development of the PACE participant's care plan. An IDT may conduct assessments of PACE participants and provide services to PACE participants within their scope of practice, state licensure, or certification. An IDT includes at least one representative from each of the following groups:

(a) Medical Doctor, Osteopathic Physician, Nurse Practitioner, or Physician's Assistant;

(b) Registered Nurse or a Licensed Practical Nurse supervised by a Registered Nurse;

(c) Social Worker with a Master's degree or a Social Worker with a Bachelor degree who is supervised by a Master's level Social Worker;

(d) Occupational Therapist or a Certified Occupational Therapy Assistant supervised by an Occupational Therapist;

(e) Recreational Therapist or an Activity Coordinator with two years experience;

(f) Physical Therapist or a Physical Therapy Assistant supervised by a Physical Therapist;

(g) Dietician and Pharmacist as indicated; and

(h) In addition to the positions listed above in subsections (a) to (g) of this section, the IDT includes the PACE Center Manager, the Home Care Coordinator, Personal Care Attendant, and the Driver or Transportation Coordinator.

(27) Medicaid — A federal and state funded portion of the Medical Assistance Program established by Title XIX of the Social Security Act, as amended and administered in Oregon by the Department of Human Services.

(28) Medically Appropriate — Services and medical supplies required for prevention, diagnosis, or treatment of a health condition that encompasses physical or mental conditions, or injuries, and that are:

(a) Consistent with the symptoms of a health condition or treatment of a health condition;

(b) Appropriate with regard to standards of good health practice and generally recognized by the relevant scientific community and professional standards of care as effective;

(d) The most cost effective of the alternative levels of medical services or medical supplies that may be safely provided to a PACE participant in the PACE program's judgment.

(29) Medicare — The federal health insurance program for people who are 65 or older, certain younger people with disabilities, and people with End-Stage Renal Disease (permanent kidney failure requiring dialysis or a transplant, sometimes called ESRD).

(30) Non-Covered Services — Services or items the PACE program is not responsible for providing or paying for.

(31) Non-Participating Provider — A provider who does not have a contractual relationship with the PACE program, i.e., is not on their panel of providers.

(32) Division of Medical Assistance Programs (DMAP) — The division of the Oregon Health Authority responsible for coordinating medical assistance programs. DMAP writes and administers the state Medicaid rules for medical services, contracts with providers, maintains records of participant eligibility and processes, and pays DMAP providers and contractors such as PACE.

(33) Oregon Health Plan (OHP) — The Medicaid demonstration project that expands Medicaid eligibility. The Oregon Health Plan relies substantially upon a prioritization of health services and managed care to achieve the policy objectives of access, cost containment, efficacy, and cost effectiveness in the allocation of health resources.

(34) PACE — The Program of all Inclusive Care for the Elderly (PACE) is a managed care entity that provides medical, dental, mental health, social services, transportation, and long-term care services to persons age 55 and older on a prepaid capitated basis in accordance with a signed agreement with the Department and CMS.

(35) PACE Participant — An individual who meets the Department criteria for nursing facility care and is enrolled in the PACE program. These individuals are eligible under the following categories:

(a) AB/AD (Assistance to Blind and Disabled) with Medicare — Individuals with concurrent Medicare eligibility with income under Medicaid eligibility;

(b) AB/AD without Medicare — Individuals without Medicare with income under Medicaid eligibility;

(c) OAA (Old Age Assistance) with Medicare — Individuals with concurrent Medicare Part A or Medicare Parts A and B eligibility with income under Medicaid eligibility;

(d) OAA without Medicare — Individuals without Medicare with income under Medicaid eligibility; or

(e) Private — Individuals with or without Medicare with incomes over Medicaid eligibility.

(36) Participating Provider — An individual, facility, corporate entity, or other organization that supplies medical, dental, or mental health services or items who have agreed to provide those services or items and to bill in accordance with a signed agreement with a PACE program.

(37) Preventive Services — Those services as defined under Expanded Definition of Preventive Services in OAR 410-141-0480 and 410-141-0520.

(38) Primary Care Provider (PCP) — A medical practitioner who has responsibility for supervising and coordinating initial and primary care within his or her scope of practice for PACE participants. Primary Care Providers initiate referrals for care outside their scope of practice that may include consultations and specialist care, and assure the continuity of medically or dentally appropriate care.

(39) Quality Improvement — Quality improvement is the effort to improve the level of performance of a key process or processes in health and long term care. A quality improvement program measures the level of current performance of the processes, finds ways to improve the performance, and implements new and better methods for the processes. Quality Improvement includes the goals of quality assurance, quality control, quality planning, and quality management in health care. Quality of care reflects the degree to which health services for individuals and populations increases the likelihood of desired health outcomes and is consistent with current professional knowledge.

(40) Representative — A person who can assist the PACE participant in making administrative related decisions such as, but not limited to, completing an enrollment application, filing grievances, and requesting disenrollment. A representative may be, in the following order of priority, a person who is designated as the PACE participant's health care representative, a court-appointed guardian, a spouse, other family member as designated by the PACE participant, the Individual Service Plan Team (for individuals with intellectual or developmental disabilities), or a Department/AAA case manager or other Department designee. This definition does not apply to health care decisions unless the representative has legal authority to make such decisions.

(41) Seniors and People with Disabilities — Aging and People with Disabilities as defined in this rule.

(42) Service Area — The geographic area defined by Federal Information Processing Standards (FIPS) codes, or other criteria determined by the Department, in which the PACE program has agreed to provide services under the Oregon PACE program regulations and the Federal PACE regulations 42 CFR Part 460. The service area is defined in the PACE contract with the Department.

(43) Service Plan — An individualized, written plan that addresses all relevant aspects of a participant's health and socialization needs that is developed by the Interdisciplinary Team with the involvement of the participant and the participant's representative. A service plan is based on the findings of the participant's assessments and defines specific service and treatment goals and objectives, proposed interventions, and the measurable outcomes to be achieved. A service plan is reviewed at least every four months or as indicated by a change in the participant's condition.

(44) Triage — Evaluations conducted to determine whether or not an emergency condition exists, and to direct the DMAP member to the most appropriate setting for medically appropriate care.

(45) Urgent Care Services — Covered services required to prevent a serious deterioration of a PACE participant's health that results from an unforeseen illness or an injury and for dental services necessary to treat such conditions as lost fillings or crowns. Services that may be foreseen by the individual are not considered urgent services.

(46) Valid Claim:

(a) An invoice received by the PACE program for payment of covered health care services rendered to an eligible PACE participant that:

(A) May be processed without obtaining additional information from the provider of the service or from a third party; and

(B) Has been received within the time limitations prescribed in these rules.

(b) A "valid claim" is synonymous with the federal definition of a "clean claim" as defined in 42 CFR 447.45(b).

(47) Valid Pre-Authorization — A request, received by the PACE program for approval of covered health care services provided by a non-participating provider to an eligible individual, that may be processed without obtaining additional information from the provider of the service or from a third party.

History

Statutory/Other Authority: ORS 410.090
Statutes/Other Implemented: ORS 410.070
SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 2-2005, f. & cert. ef. 1-4-05
SDSD 5-2000, f. 12-29-00 cert. ef. 1-1-01

Or. Admin. R. 411-045-0020 Program Administration

(1) A PACE program must be, or be a distinct part of, one of the following:

(a) An entity of a city, county, state, or tribal government;

(b) A private, not-for-profit entity organized for charitable purposes under section 501(c)(3) of the Internal Revenue Code or 1986; or

(2) The PACE program's service area must be approved by both the Department and CMS.

(3) The PACE program must employ a program director who is responsible for oversight and administration of the program.

(4) The PACE program must employ a medical director who is responsible for the delivery of participant care as well as the performance of the quality improvement program.

(5) The PACE program must notify the Department in writing 90 days before changes in organizational structure, including ownership, take effect. The Department must approve such changes in advance.

(6) A PACE program must have an identifiable governing body (e.g. a board of directors) with full legal authority and responsibility for the following:

(a) Governance and operation;

(b) Development of policies consistent with the mission;

(d) Establishment of personnel;

(e) Fiscal operations; and

(f) Quality improvement program.

(7) A PACE program must provide training to maintain and improve the skills and knowledge of staff members in each of the PACE positions.

(8) PACE programs are responsible for payment of all covered services. Such services should be billed directly to the PACE program. PACE programs may require providers to obtain pre-authorization to deliver covered services other than emergency services.

(9) Payment by the PACE program to providers for covered services is a matter between the PACE program and the provider, except as follows:

(a) Pre-Authorizations:

(A) PACE programs must have written procedures for processing valid pre-authorization requests received from any provider;

(B) Authorizations for prescription drugs must be completed and the pharmacy notified within 24 hours. If an authorization for a prescription cannot be completed within the 24 hours, the PACE program must provide for the dispensing of at least a 72-hour supply if the medical need for the drug is immediate. The PACE program shall notify providers of such determination within 2 working days of receipt of the request; and

(C) PACE programs will notify PACE participants of a denial of an authorization request within five working days from the final determination using the Department approved client notice format.

(b) Claims Payment:

(A) PACE programs must have written procedures for processing claims submitted for payment from any source;

(B) PACE programs must pay or deny at least 90% of valid claims within 45 calendar days of receipt and at least 99% of valid claims within 60 calendars days of receipt. PACE programs shall make an initial determination on 99% of all claims submitted within 60 calendar days of receipt; and

(C) PACE programs must provide written notification of determinations when such determinations result in a denial of payment for services, for which the PACE participant may be financially responsible. Such notice must be provided to the PACE participant and the treating provider within fourteen (14) calendar days of the final determination. The notice to the participant must be a Department-approved notice format and will include information on the PACE program's internal appeals process, and the Notice of Hearing Rights (DMAP 3030) will be attached. The notice to the provider must include the reason for the denial.

(c) PACE programs are responsible for payment of Medicare coinsurances and deductibles up to the Medicare or PACE program's allowable amount for covered services the PACE participant receives with authorized referrals and for urgent or emergency services from non-participating providers.

(d) PACE programs will pay transportation, meals and lodging costs for the PACE participant and any required attendant for out-of-state services (as defined in DMAP general rules) that the PACE program has arranged and authorized when those services are available within the state, unless otherwise approved by the Department.

(e) PACE programs will be responsible for payment of covered services provided by a non-participating provider that were not pre-authorized if the following conditions exist:

(A) It can be verified that the participating provider ordered or directed the covered services to be delivered by a non-participating provider;

(B) The covered service was delivered in good faith without the pre-authorization;

(C) It was a covered service that would have been pre-authorized with a participating provider if the PACE program's referral protocols had been followed; and

(D) The PACE programs will be responsible for payment to non-participating providers according to the PACE program's reimbursement policies.

(10) Under a PACE program agreement and 42 CFR 460.180, CMS makes a prospective monthly payment to the PACE organization of a capitation rate for each Medicare participant. Consistent with the requirements of 42 CFR 460.180, PACE programs are responsible for payment up to the PACE contracted rates for covered services the PACE participant receives for authorized referral care, and for urgent or emergency services received from non-contracted providers.

(11) Under the PACE program agreement and 42 CFR 460.182, the Department makes a prospective monthly payment to the PACE organization of a capitation rate for each Medicaid participant. The PACE program must accept the capitation payment as payment in full for Medicaid participants and may not bill, charge, collect or receive any other form of payment from the Department or from or on behalf of the participant, except as follows:

(a) Payment with respect to the applicable spend-down liability and any amounts due under the post-eligibility treatment of income;

(b) Medicare payment received from CMS or from other payors, in accordance with section (10) of this rule; or

(d) Fee for service payments by the Department or Medicare prior to the participant being capitated.

(12) A PACE program must meet the requirements stated in 42CFR Part 460, Programs of All Inclusive Care for the Elderly (PACE) except where these rules are at variance.

History

Statutory/Other Authority: ORS 410.090
Statutes/Other Implemented: ORS 410.070
SPD 2-2005, f. & cert. ef. 1-4-05
SDSD 5-2000, f. 12-29-00 cert. ef. 1-1-01

Or. Admin. R. 411-045-0030 Financial

(1) PACE programs will assume the risk for providing capitated services under their contracts with the Department. PACE programs must maintain sound financial management procedures, maintain protections against insolvency, and generate periodic financial reports for submission to the Department as applicable:

(2) PACE programs must comply with solvency requirements specified in contracts with the Department, as applicable. Solvency requirements of PACE programs must include the following components:

(a) Maintenance of restricted reserve funds with balances equal to amounts specified in contracts with the Department;

(b) Protection against catastrophic and unexpected expenses related to capitated services for PACE programs. The method of protection may include the purchase of stop loss coverage, reinsurance, self-insurance or any other alternative determined acceptable by the Department, as applicable. Self-insurance must be determined appropriate by the Department; and

(c) Maintenance of professional liability coverage of not less than $1,000,000 per person per incident and not less than $1,000,000 in the aggregate either through binder issued by an insurance carrier or by self-insurance with proof of same, except to the extent that the Oregon Tort Claims Act, ORS 30.260 to 30.300 is applicable.

(3) The PACE program must be able to satisfy the fiscal soundness requirements in 42 CFR Sec. 460.80. If the amount required in the federal PACE regulations exceeds the sum of the restricted reserve and net worth requirement, the difference may be a combination of insolvency insurance, reinsurance, letters of credit, or excess net worth.

History

Statutory/Other Authority: ORS 410.090
Statutes/Other Implemented: ORS 410.070
SPD 2-2005, f. & cert. ef. 1-4-05
SDSD 5-2000, f. 12-29-00 cert. ef. 1-1-01

Or. Admin. R. 411-045-0040 PACE Marketing and Informational Requirements

(1) The PACE program may inform the general public of its program through appropriate informational activities and media. The PACE program must ensure that prohibited marketing activities as defined in 42 CFR 460.82 are not conducted by its employees or its agents.

(2) PACE programs will ensure that all staff who have contact with potential PACE participants are fully informed of PACE program policies, including enrollment, disenrollment and grievance policies and the provision of language and sign language interpreter services including providers who have bilingual capacity.

(3) PACE programs will develop informational materials for potential PACE participants in accordance with the following standards:

(a) PACE programs will provide informational materials sufficient for eligible PACE participants to make an informed decision about applying for enrollment. Information on participating providers must be made available from the program, upon request to potential enrollees, and must include enrollment requirements, benefits and services, locations of PACE centers, and choice of centers and PCPs, list of specialists, fees and other charges;

(b) PACE programs will produce printed informational materials that, at a minimum will include, the Marketing brochures, Participant Handbook, Enrollment Agreement, Disenrollment forms, and Denial of Services notices. These informational materials will be culturally sensitive and in the primary language of each substantial population (35 households) of non-English speaking PACE applicants and participants and in alternate forms for all vision impaired PACE applicants and participants. Alternate forms may include, but are not limited to, audio tapes, closed-captioned videos, large type and Braille;

(c) No written information will be provided to potential PACE participants that has not been approved by the Department. Approval or denial will be granted within 30 days of receipt by the Department. No response in 30 days constitutes approval. Any written communication by the PACE program or its subcontractors and providers that is intended solely for PACE participants and pertains to requirements to receive care at service sites or benefits must be approved by the Department prior to distribution; and

(d) PACE programs will provide written notice to affected PACE participants of any significant changes in program or service sites that impacts the PACE participants' ability to access care or services from PACE providers. Such notice will be provided to PACE participants or their representatives at least 14 calendar days prior to the effective date of that change, or as soon as possible, if the provider has not given the PACE program sufficient notification to meet the 14 days notice requirement. The Department will review and approve such materials within two working days of receipt by the Department.

(4) Participant Handbook Materials:

(a) The Participant Handbook will be made available as described above and will be distributed within 14 calendar days of the PACE participant's effective date of coverage with the PACE program;

(b) At a minimum the information in the Participant Handbook will contain the following elements:

(A) Location(s) and office hours of the PACE program;

(B) Telephone number(s) to call for more information and telephone numbers relating to information listed below;

(D) How to access urgent care services and advice;

(E) How and when to use emergency services including ambulance;

(F) Information on the grievance process, including confidentiality and requesting an administrative hearing;

(G) How to access interpreter services including sign interpreters;

(H) PACE participant rights and responsibilities;

(I) PACE participant's possible responsibility for charges including Medicare deductibles and coinsurances if he or she goes outside of the PACE program for non-emergent care, obtain non-covered services or services not authorized by the Interdisciplinary Team (IDT);

(J) A clear statement that level of care decisions (i.e., whether or not a participant needs continuing nursing home care or may be discharged to a community based facility), are determined by the participant's Interdisciplinary Team after consulting with the participant and their family. The participant may appeal that decision but does not have the choice of remaining at a particular level of care unless the level of care warrants such and is approved by the Interdisciplinary Team;

(K) Information on the availability of social services and assistance in placement in community based housing and facilities;

(L) How to obtain specialty care, mental health and chemical dependency services;

(M) Information on Advance Directives and Physician Order for Life Sustaining Treatment ( POLST);

(N) How to obtain copies of the participant's records (and that the participant may be charged a reasonable copying fee);

(O) How to obtain non-emergent ambulance services and other medical transportation to appointments, as appropriate;

(P) Explanation of covered and non-covered services;

(Q) How to obtain prescriptions; and

(R) The PACE program’s confidentiality policy.

(c) The Participant Handbook will be reviewed by the PACE program for accuracy at least yearly and updated with new or corrected information as needed to reflect the PACE program's internal changes and regulatory changes. If changes impact the PACE participant’s ability to use services or benefits, the updated materials will be distributed to all PACE participants after approval by the Department.

(5) PACE programs will offer orientation to the PACE program to new participants in person within 30 days of enrollment.

History

Statutory/Other Authority: ORS 410.090
Statutes/Other Implemented: ORS 410.070
SPD 2-2005, f. & cert. ef. 1-4-05
SDSD 5-2000, f. 12-29-00 cert. ef. 1-1-01

Or. Admin. R. 411-045-0050 Enrollment

(1) ELIGIBILITY: To be eligible to enroll in a PACE program a person must:

(a) Reside in the PACE program's approved service area upon enrollment;

(b) Be 55 years of age or older;

(c) Be able to be maintained in a community-based setting at the time of enrollment without jeopardizing his or her health or safety or the health and safety of others;

(d) Be determined by the local Department/AAA agency to need the level of care required under Oregon's State Medicaid Plan for coverage of nursing facility services in accordance with the rules in OAR chapter 411, division 15 (Long-Term Care Service Priorities for Individuals Served);

(e) Be Medicaid eligible or be willing to pay private fees; and

(f) Be willing to abide by the provision that requires enrollees to receive all health and long term care services exclusively from the PACE program and its contracted or referred providers.

(2) The criteria for determining that an individual is unable to live safely in the community and thereby may be denied enrollment is as follows:

(a) The individual demonstrates imminent danger to self or others in accordance with the definition in OAR 411-015-0005;

(b) There is evidence in the individual's clinical record that shows he or she has been repeatedly placed in appropriate care settings and, despite medically appropriate treatment, placement has resulted in frequent hospitalizations or failed placements;

(c) At the time of application, the individual is determined to be eligible for enhanced care services or long term care at Oregon State Hospital by either the enhanced care Services Coordinator or the OSH Gero-Psychiatric Outreach Team;

(d) At the time of application, the individual has a physician documented condition that meets the criteria for Medicare skilled care and does not appear to be able to be discharged to the community within the next 30 days; or

(e) At the time of application, the applicant lives in his or her own home and wishes to remain there but requires 24-hour care to remain safely in their home.

(3) If either the PACE program or the local Department/AAA case manager has concerns about the safety of a potential enrollee, a case conference may be convened to review the case with outside consultants as needed for further evaluation.

(4) ENROLLMENT/SCREENING AND INTAKE:

(a) Department/AAA staff processes an application for Medicaid services and determines the level of care required under Oregon's State Medicaid Plan for coverage of nursing facility services. Department/AAA staff follows the appropriate PACE enrollment protocols as outlined in the Department/AAA Policy Manuals.

(b) Department/AAA staff conducts initial screening and intake, including providing assistance in completing the application and obtaining relevant information.

(c) The Department provides for the calculation of any applicable spend-down liability and for post-eligibility treatment of income for Medicaid participants in the same manner as the Department treats spend-down liability and post-eligibility income for individuals receiving Medicaid home and community-based services (OAR 461-160-0620).

(d) The Department/AAA staff forwards intake information of potential enrollees to the PACE program staff who assesses the applicant's appropriateness for enrollment in the PACE program in accordance with these rules and the requirements of 42 CFR 460.152. Potential enrollees may be denied enrollment by the PACE program if the PACE program determines the individual is not able to be maintained in a community-based setting without jeopardizing his or her health or safety or the health and safety of others.

(e) If the potential enrollee or his or her representative is in disagreement with the PACE program's decision not to enroll the person, he or she may file an appeal with the Department.

(f) All letters to applicants regarding denial of enrollment by the PACE program must include the reason for the denial and the applicants appeal rights. This letter along with documentation of pertinent information related to the decision must be forwarded to the Department for review.

History

Statutory/Other Authority: ORS 410.090
Statutes/Other Implemented: ORS 410.070
SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 2-2005, f. & cert. ef. 1-4-05
SDSD 5-2000, f. 12-29-00 cert. ef. 1-1-01

Or. Admin. R. 411-045-0060 Disenrollment

(1) PACE Participant Requests for Disenrollment:

(a) All PACE participant initiated requests for disenrollment from PACE programs must be initiated by the PACE participant or his or her representative;

(b) An applicant may request disenrollment if he or she has surgery scheduled at the time the PACE enrollment is effective and the provider is not on the PACE program's provider panel and the participant wishes to have the services performed by that provider; and

(c) PACE participant or representative requests for disenrollment will be effective at the end of the month following the date of request for disenrollment except in the case of (b) above.

(2) PACE program requests for disenrollment:

(a) Causes for disenrollment:

(A) The Department may disenroll PACE participants for the following causes when requested by the PACE program subject to ADA requirements and approval by the Department:

(i) Participant's behavior is disruptive, unruly, or abusive to the point that his or her enrollment seriously impairs the provider’s ability to furnish services to either the participant or other participants; the participant commits or threatens an act of physical violence directed at PACE staff, other patients, property, or other providers; participant commits fraudulent or illegal acts such as: permitting use of his or her medical ID card by others, altering a prescription, theft or other criminal acts committed in any providers or PACE programs premises. The PACE program will report any illegal acts to law enforcement authorities or to the Medicaid Fraud Unit as appropriate;

(ii) The participant fails to pay the PACE premium or loses Medicaid eligibility and is unable to pay the PACE premium;

(iii) The PACE participant moves out of the PACE program's service area, and that move was not facilitated by the PACE program; or

(B) Other reasons for the PACE program's requests for administrative disenrollment include the following:

(i) If a PACE participant is enrolled in the PACE program on the same day the participant is admitted to the hospital, the PACE program will be responsible for said hospitalization. If the participant is enrolled after the first day of the inpatient stay, the participant will be disenrolled, and the date of enrollment will be the next available enrollment date following discharge from inpatient hospital services; or

(ii) The participant is admitted to a state psychiatric institution.

(b) PACE participants will not be disenrolled solely for the following reasons:

(A) Because of a physical or mental disability;

(B) Because of an adverse change in the participant's health;

(D) Because the participant requests an administrative hearing; or

(E) Because the participant makes decisions regarding his or her medical care with which the PACE program disagrees.

(c) Requests by the PACE program for disenrollment of specific PACE participants will be submitted in writing to the Department for approval with copies and verbal communication to the SPD/AAA local office. The PACE program must document the reasons for the request, provide written evidence to support the basis for the request, and document that attempts at intervention were made. The following is the minimal documentation and process the Department will request:

(A) Documentation in the PACE participant's clinical record at the time the problem is identified;

(B) Documentation regarding how the problem was addressed in the care plan. The PACE program will inform the participant or his or her representative that if the problem persists it may result in disenrollment;

(C) A written request to disenroll the participant to the Department, with a copy to the participant's SPD/AAA caseworker. Documentation with the request will include the reason the PACE program is requesting disenrollment; a summary of the PACE program's efforts to resolve the problem and other options attempted before requesting disenrollment; and

(D) If the request is due to a behavioral problem, the following documentation must also be submitted:

(i) A written assessment of the relationship of the behavior to the disability including: current medical knowledge or best available objective evidence to determine the nature, duration and severity of the risk to the health or safety of others; the probability that potential injury to others will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk to others;

(ii) An Interdisciplinary Team review that includes a mental health professional or behavioral specialist to assess the behavior, its history, and previous history of efforts to manage behavior;

(iii) If warranted, a clinical assessment that the behavior will not respond to reasonable clinical or social interventions;

(iv) Documentation in the care plan of any accommodations that have been attempted; and

(v) Any additional information or assessments requested by the Department.

(d) Disenrollment requests will be reviewed according to the following process:

(A) The request will be evaluated by a team of Department representatives who may request additional information from the SPD/AAA case manager, or other agencies as needed;

(B) The Department representatives will review the request and notify the PACE program of the decision within ten working days of receipt. Written decisions, including reasons for denials, will be sent to the PACE program within 15 working days from receipt of request;

(C) If the request is approved the disenrollment date is the end of the month after the date of approval. The PACE program must send the participant a letter within 14 days after the request was approved, with a copy to the participant's SPD/AAA case manager and DMAP's Health Management Unit (HMU). The letter must give the disenrollment date, the reason for disenrollment, and the notice of participant's right to an administrative hearing.

(e) If a request for disenrollment is approved the PACE program will be responsible for facilitating a PACE participant's enrollment into other programs by:

(A) Making appropriate referrals, ensuring clinical records are made available to new providers within 10 days of disenrollment to ensure participant’s needs are met without interruption of care or services; and

(B) Working with CMS and the Department to reinstate the participant in other Medicare and Medicaid programs for which they are eligible.

(f) If a participant requests a hearing, the participant will continue to be enrolled until an administrative hearing decision has been mailed to the participant and the PACE program.

(g) If a disenrollment date is determined from the administrative hearing, the Department sends a letter to the participant with a copy to the participant's SPD/AAA case manager and the PACE program. The letter will inform the participant of the reason for the disenrollment decision.

(3) Department Initiated disenrollments: The Department may initiate and disenroll PACE participants as follows:

(a) If a Medicaid-only PACE participant moves out of the PACE program's service area(s), the effective date of disenrollment will be the date specified by the Department and the Department will recoup the balance of that month's capitation payment. If the participant has Medicare, the effective date of disenrollment will be the first of the month following the move out of the service area. If the participant has neither Medicare or Medicaid, the date of disenrollment will be the date specified by the Department;

(b) If the PACE participant is no longer eligible under SPD’s long-term care criteria or under eligibility criteria for PACE, the effective date of disenrollment will be the date specified by the Department; or

(c) If the PACE participant dies, the effective date of disenrollment will be the end of the month following the date of death, and the Department will recoup any capitation payments made to PACE program after the end of the month.

(4) If the disenrollment is generated by the Department under subsection (3)(a) or subsection (3)(b) of this rule, the Department will inform the participant of the disenrollment decision in writing, including the right to request an administrative hearing. If a participant requests an administrative hearing, the participant will continue to be enrolled until a hearing decision has been mailed to the participant.

History

Statutory/Other Authority: ORS 410.090
Statutes/Other Implemented: ORS 410.070
SPD 2-2005, f. & cert. ef. 1-4-05
SDSD 5-2000, f. 12-29-00 cert. ef. 1-1-01

Or. Admin. R. 411-045-0070 Access to Care

(1) PACE programs will develop written policies and procedures for communicating with, and providing care to PACE participants who have difficulty communicating due to a medical condition or who are living in a household where there is no adult available to communicate in English or where there is no telephone. Such policies and procedures will address the provision of qualified interpreter services by phone or in person in the PACE Center, PACE administrative offices, and participant's residence.

(2) PACE programs will provide or ensure the provision of qualified interpreter services for covered medical, mental health or dental care visits, including home health visits and after hours emergency calls, to interpret for persons with hearing impairment or in the primary language of non-English speaking PACE participants.

(a) Interpreters must be linguistically appropriate and be capable of communicating in English and the primary language of the PACE participant and be able to translate clinical information effectively. Interpreter services must be sufficient for the provider to be able to understand the PACE participant's grievance; to make a diagnosis; respond to a participant's questions and concerns; and to communicate instructions to the PACE participant; and

(b) Interpreters must be culturally appropriate, i.e., demonstrating both awareness for and sensitivity to cultural differences and similarities and the effect of those on the medical care of the PACE participant.

(3) PACE programs must have written policies and procedures that ensure compliance with requirements of the Americans with Disabilities Act (ADA) of 1990 in providing access to covered services for all PACE participants and must arrange for services to be provided by non-participating referral providers when necessary:

(a) The policies and procedures must include the assurance of appropriate physical access to obtain covered services for all PACE participants including, but not limited to the following:

(A) Street level access or accessible ramp into facility;

(B) Wheelchair access to lavatory;

(D) Doors with levered hardware or other special adaptations for wheelchair access.

(b) PACE programs must ensure that providers, their facilities and personnel are prepared to meet the special needs of PACE participants who require accommodations because of a disability. PACE programs must monitor providers for compliance with ADA and take corrective action, when necessary.

History

Statutory/Other Authority: ORS 410.090
Statutes/Other Implemented: ORS 410.070
SPD 2-2005, f. & cert. ef. 1-4-05
SDSD 5-2000, f. 12-29-00 cert. ef. 1-1-01

Or. Admin. R. 411-045-0080 Provision of Services

(1) PACE Services:

(a) PACE covered services for all participants must be the same regardless of the source of payment. They must include all OHP covered services specified in OAR 410-141-0480 and Medicare covered services. In addition the covered services must include the following:

(A) Interdisciplinary assessment and treatment planning;

(B) Case management and social work services;

(D) Nutritional counseling;

(E) Recreational therapy;

(F) Meals and nutritional supplement as appropriate;

(G) Community based long term care including nursing facility care as appropriate; and

(H) Other services determined necessary by the Interdisciplinary Team to improve or maintain the PACE participants overall health and functioning or to provide pain management and comfort care.

(b) The following are non-covered services under PACE:

(A) Any service that is not authorized by the Interdisciplinary Team, even if it is a covered service, unless it is an emergency service;

(B) Any service listed in OAR 410-141-0500 Excluded Services and Limitations as described in 410-120-1200, or in the individual DMAP Provider Guides;

(C) Any service that is excluded under the Oregon Health Plan unless it is a covered service under 42 CFR 460.92 or Medicare;

(D) Excluded services listed in 42 CFR 460.96; and

(E) Services furnished outside of the United States except as permitted under 42 CFR 424.122 through 424.124 and under Oregon's approved Medicaid plan.

(c) The PACE program must operate at least one PACE center either in or contiguous to its defined service area, with sufficient capacity to allow routine attendance by PACE participants. The frequency of attendance at a PACE Center is determined by the Interdisciplinary Team and is to be based on the needs and preferences of each participant.

(d) A PACE program must ensure accessible and adequate services to meet the needs of its participants.

(e) The PACE program must establish an Interdisciplinary Team at each PACE Center to comprehensively assess and develop a written care plan to furnish care that meets the needs of each participant in all care settings 24 hours a day, every day of the year.

(f) Each PACE Center must employ at a minimum a half-time physician and a full-time Center Manager, Registered Nurse and Social Worker with a Master’s degree before they may add a Nurse Practitioner, Physician Assistant, Licensed Practical Nurse or Social Worker with a Bachelor degree.

(g) The Interdisciplinary Team members must have appropriate licensure for their respective disciplines within the state. One year’s experience in working with the elderly or in caregiving is required with exceptions approved by the Department.

(h) Personal care attendants, who are not Certified Nursing Assistants, must be enrolled in a Department approved training program within the service area within 6 months of hire and complete the program within 12 months of hire.

(i) The Interdisciplinary Team is responsible for the initial assessment, periodic reassessments, care plan, and coordination of 24 hour care delivery.

(A) The initial assessment must be completed within 10 working days following enrollment.

(B) The Interdisciplinary Team must consolidate their individual assessments into a care plan within 10 working days following enrollment.

(C) The appropriate Interdisciplinary Team members must update the care plan within 5 working days following a significant change in the participant's health status or at the request of the participant or the participant's representative.

(D) The Interdisciplinary Team members actively involved in the participant's care plan must conduct an in-person reassessment and revise the care plan with the participant and the participant's representative or caregiver at least semiannually, and meet with the members of the Interdisciplinary Team and update the care plan as needed. To the extent it is appropriate, the participant and the participant's representative or caregiver shall be involved in establishing the participant's goals.

(E) The Interdisciplinary Team must implement, coordinate and monitor the effectiveness of the care plan and, as appropriate, involve the participant and the participant's representative in care conferences or family meetings when there are issues or changes in the care plan.

(F) The care plan must specify the care needed to meet the participant's medical, physical, emotional and social needs as identified in the individual assessments. The team must document the care plan and any changes made to it in the participant's clinical record.

(2) Health Care:

(a) PACE programs will have written policies and procedures that ensure the provision of all medically and dentally appropriate care and covered services, including urgent and emergency services, preventive services and ancillary services included in the PACE contract with the Department. PACE programs must communicate these policies and procedures to PACE staff and contracted providers, regularly monitor compliance with these policies and procedures, and take any corrective action necessary to ensure compliance. PACE programs must document all monitoring and corrective action activities.

(b) The PACE program must maintain a provider panel sufficient to ensure adequate capacity and expertise to provide timely and appropriate access to covered services.

(c) PACE programs must ensure that all providers providing services to PACE participants are credentialed upon initial contract with the PACE program and re-credentialed no less frequently than biennially thereafter. This process must include a review and determination based on the results of the PACE program's quality improvement activities.

(d) The credentialing and re-credentialing process must include review of any information in the National Practitioner Databank; and

(A) A determination, based on the requirements of the discipline or profession, that providers have current licensure in the state in which they practice or appropriate certification; and

(B) Applicable hospital privileges; and

(e) The PACE program may elect to contract for or to delegate responsibility for this process but the PACE program will retain responsibility for delegated activities, including oversight of the following processes:

(A) PACE programs must ensure that services are provided within the scope of license or certification of the provider or facility, and that providers are appropriately supervised according to their scope of practice;

(B) PACE programs, or their delegated agent, must maintain records documenting academic credentials, training received, licenses or certifications of staff and facilities used, and reports from the National Practitioner Data Bank;

(C) PACE programs must not refer PACE participants to or use providers who have been suspended or terminated from the Division of Medical Assistance Program or excluded as Medicare/Medicaid providers by CMS or convicted of criminal offenses against Medicare, Medicaid, or Title XX of the Social Security Act or related state law by any lawful court in this state. PACE programs must not accept billings for services to PACE participants provided after the date of such providers suspension or termination or conviction.

(f) PACE programs must have written procedures that allow for choice of a Primary Care Provider (PCP) for physical health within the PACE program's PCPs or contracted providers. Information about which PCPs are not accepting new patients will be provided by the PACE program to potential PACE participants.

(g)(A) PACE programs must ensure a newly enrolled PACE participant receives timely, adequate and appropriate health care services necessary to establish and maintain the health of the PACE participant. PACE programs must coordinate services for PACE participants who require services from agencies providing non-covered services. The PCP will arrange, coordinate, and monitor all medical, mental health, and dental care for that PACE participant on an ongoing basis.

(B) A PACE program's liability covers the period between the participant's enrollment and disenrollment with the PACE program, unless the participant is hospitalized at the time of disenrollment. In such an event, the PACE program is responsible for the participant in accordance with its contract with the Department. The PACE program must have written procedures that describe how it will comply with this obligation.

(h) The PACE program must identify the training needs of its provider panel and PACE staff and address such needs to improve the ability of the providers and staff to deliver covered services within the PACE program.

(3) Emergency and Urgent Care Services:

(a) PACE programs must have written policies and procedures and monitoring systems that ensure the provision of appropriate urgent care, emergency, and triage services 24-hours a day, 7-days-a-week for all PACE participants. PACE programs must communicate these policies and procedures to their staff and contracted providers; regularly monitor compliance with these policies and procedures and take any corrective action necessary to ensure provider compliance. PACE programs must document all monitoring and corrective action activities.

(b) PACE programs must have written policies and procedures and monitoring processes to ensure that urgent or emergency calls are responded to appropriately. These policies should address the following elements:

(A) The maintenance of 24-hour telephone coverage (not a recording) either onsite or through call sharing or an answering service, adequate to triage urgent care and emergency calls from PACE participants;

(B) The standards for call-back for emergency or urgent care, routine problems, and the provision of interpretive services after office hours. Urgent calls will be returned appropriate to the participant's condition but in no event more than 30 minutes after receipt. If information is not adequate to determine if the call is urgent, the call will be returned within 60 minutes to fully assess the nature of the call. If information is adequate to determine the call may be emergent in nature, the call must be returned immediately;

(C) Provisions for notifying other providers requesting approval to treat a PACE participant, including emergency departments;

(D) Provisions to ensure that relevant information is entered into the appropriate clinical record of the PACE participant regardless of who responds to the call or the time of day the call is received. PACE programs must monitor for compliance with this requirement;

(E) Written procedures and trained staff to communicate with hearing impaired PACE participants via TDD/TTY or Relay Service, and with limited English proficient PACE participants;

(F) Telephone coverage at PACE program centers and administrative offices that will permit access to administrative staff during normal office hours, including lunch hours, and have assigned administrative staff available for emergencies after hours and on weekends; and

(G) Provisions to monitor compliance with the policies and procedures governing 24-hour telephone coverage and on-call PCP and administrative coverage, take corrective action as needed, and report findings to the PACE program's Quality Improvement Committee.

(c) If a screening examination in an emergency room leads to a clinical determination by the examining physician that an actual emergency medical condition exists under the prudent layperson standard as defined in emergency services, the PACE program must pay for all services required to stabilize the patient. The PACE program may not require prior authorization for emergency services. The PACE program may not retroactively deny a claim for an emergency screening examination because the condition, that appeared to be an emergency medical condition under the prudent layperson standard, turned out to be non-emergency in nature.

(d) When a PACE participant's PCP, or other PACE program representative instructs the PACE participant or his or her representative to seek emergency services, in or out of the network, the PACE program is responsible for payment of the screening examination and for other medically appropriate services. The PACE program is responsible for payment of post-stabilization care that was:

(A) Pre-authorized by the PACE program; or

(B) Not pre-authorized by the PACE program if the program (or the on-call provider) failed to respond to a request for pre-authorization within one hour of the request being made, or the PACE program or provider on call could not be contacted.

(4) Continuity of Care:

(a) PACE programs must develop and maintain a formal referral system consisting of a network of consultation and referral providers, including alternative care settings, for all services covered in their contract with the Department. PACE programs must ensure that access to and quality of care provided in all referral settings is monitored. Referral services and services received in alternative care settings must be reflected in the PACE participant's clinical record. PACE programs must establish and follow written procedures for participating and non-participating providers in the PACE programs referral system. Procedures will include the maintenance of records within the referral system sufficient to document the flow of referral requests, approvals and denials in the system.

(b) PACE programs must have written procedures for referrals that ensure adequate prior notice of the referral to the referral providers and adequate documentation of the referral in the PACE participant's clinical record. These procedures must include:

(A) Review of information by the referring provider;

(B) Entry of information into the PACE participant's clinical record; and

(C) Monitoring of referrals to ensure that information, including information pertaining to ongoing referral appointments, is obtained from the referral providers, reviewed by the referring practitioner, and entered into the clinical record.

(c) PACE programs must have written procedures to orient and train their staff and the staff in contracted alternative care settings in the appropriate use of the urgent and emergency care systems, and the need to send any documents from emergency care to the PACE program.

(d) If a PACE participant is hospitalized in an inpatient or outpatient setting, PACE programs must ensure that:

(A) A notation is made in the PACE participant's clinical record of the reason, date, and expected duration of the hospitalization; and

(B) Upon discharge, a notation is made in the PACE participant's clinical record of the actual duration of the hospitalization and follow-up plans, including appointments for provider visits; and

(C) Pertinent reports from the hospitalization are entered in the PACE participant's clinical record. Such reports must include, as applicable, the reports of consulting practitioner's physical history, psycho-social history, list of medications and dosages, progress notes, and discharge summary.

(e) For PACE participants living in residential facilities or homes providing ongoing care, the IDT will work with the appropriate staff person identified by the facility to ensure that the PACE participant has timely and appropriate access to services according to the PACE participant's care plan, and to ensure coordination of care provided by the PACE program and care provided by the facility or home.

(f) For PACE participants living in residential facilities or homes providing ongoing care, PACE programs will provide medications in a manner that is compatible with the appropriate medication dispensing system of the facility, that meets state dispensing laws. PACE programs must provide emergency prescriptions on a 24-hour basis.

(g) When a PACE participant's care is being transferred from the PACE program to the PACE participant's new health care provider, the PACE program will make every reasonable effort within the laws governing confidentiality to coordinate transfer of the PACE participant into the care of the new provider.

(h) If a Primary Care Provider (PCP) terminates the patient/provider relationship, the PACE program will arrange for the participant to transfer his or her care to another PCP on the PACE program's panel who will accept the participant as his or her patient. All terminations of provider/patient relationships must be according to the PACE program's policies.

(i) PACE programs must have written procedures and criteria for health education of PACE participants and their caregivers. Health education will include: information on specific health care procedures, instruction in self-management of health care, promotion and maintenance of optimal health care status, patient self-care, and disease and accident prevention. Health education may be provided by PACE staff or other individual(s) or program(s) approved by the PACE program. PACE programs will endeavor to provide health education in a culturally sensitive manner to communicate most effectively with individuals from non-dominant cultures.

(5) Long term Care Services:

(a) PACE programs will have written policies and procedures that ensure the provision of all long term care services included in the PACE contract with the Department. PACE programs must communicate these policies and procedures to PACE staff and contracted providers, regularly monitor compliance with these policies and procedures, and take any corrective action necessary to ensure compliance. PACE programs must document all monitoring and corrective action activities.

(b) The PACE program must maintain a provider panel (either staff or contracted providers) sufficient to ensure adequate capacity and expertise to provide timely and appropriate access to covered long term care services.

(c) The PACE program must identify the training needs of its provider panel and PACE staff and address such needs to improve the ability of the providers and staff to deliver covered long term care services under the PACE program.

(d) In addition to Medicare covered services and the DMAP covered services listed in OAR 411-045-0080(1)(a), the PACE program is responsible for providing services either directly or through contracted providers that are licensed pursuant to state law including but not limited to the following:

(A) Comprehensive case management;

(B) In-Home Services as defined in OAR 411-030-0002–411-030-0090;

(D) Personal Care Services as defined in OAR 411-034-0000–411-034-0090;

(E) Non-medical transportation;

(F) Adult Day Services as defined in OAR 411-066-0000–411-066-0020;

(G) Residential Care Facility Services;

(H) Assisted Living Facility Services;

(I) Adult Foster Home Services; and

(J) Nursing Facility Services.

(e) If the PACE program's facility is not in compliance with the provisions defined in OAR 411-066-0000–411-066-0020, they must submit a request to the Administrator of the Department for a variance. This request will be reviewed by the Administrator of the Department or his or her designee, and the representatives from the Department assigned to the PACE program.

(f) When a PACE program provides community based or long term care for residents outside of a participant's own residence it must assure that such facilities are licensed by the state. If the PACE program's facilities are not in compliance with the licensure requirements for those facilities, the PACE program must submit a request to the Department for a variance.

History

Statutory/Other Authority: ORS 410.090
Statutes/Other Implemented: ORS 410.070
SPD 2-2005, f. & cert. ef. 1-4-05
SDSD 5-2000, f. 12-29-00 cert. ef. 1-1-01

Or. Admin. R. 411-045-0090 Quality Improvement System

(1) A PACE program must have a planned, systematic and ongoing process for monitoring, collecting data and evaluating data and using that process for improving the quality and appropriateness of services provided to PACE participants. This process must include an internal Quality Improvement Program based on written policies, standards and procedures that are in accordance with relevant law, accepted medical practice and with accepted professional standards.

(2) A PACE program must designate a Quality Improvement Coordinator who will develop and coordinate systems to facilitate the work of the Quality Improvement Committee. The Quality Improvement Coordinator is generally responsible for the operations of the Quality Improvement Program and must have the management authority to implement changes to the Quality Improvement Program within the parameters of the PACE program. The Quality Improvement Coordinator must be qualified to assess the care of people who are aged, blind, or disabled or must retain consultation from individuals who are so qualified.

(3) The PACE program must have a written quality assessment and performance improvement plan. The plan must include all items included in the PACE program's contract with the Department.

History

Statutory/Other Authority: ORS 410.090
Statutes/Other Implemented: ORS 410.070
SPD 2-2005, f. & cert. ef. 1-4-05
SDSD 5-2000, f. 12-29-00 cert. ef. 1-1-01

Or. Admin. R. 411-045-0100 Confidentiality and Reporting

(1) The PACE program must have policies and procedures that ensure maintenance of a clinical record keeping system that is consistent with state and federal regulations to which the PACE program is subject.

(2) Access to clinical records:

(a) Provider Access to clinical records:

(A) PACE programs will release health service information requested by a provider involved in the care of a PACE participant within ten working days of receiving a signed release;

(B) PACE programs will assure that health service providers have access to the applicable contents of a PACE participant's mental health records when necessary for use in the diagnosis or treatment of the participant. Such access is permitted under ORS 179.505;

(b) PACE Participant Access to Records: Except as provided in ORS 179.505(9), the PACE program will, upon request, provide the participant access to his or her own clinical record and provide copies within ten working days of the request. The PACE program may charge the PACE participant for reasonable duplication costs;

(c) Third Party Access to Records: Except as otherwise provided in this rule, the PACE program will upon written consent of the PACE participant, or his or her legal guardian, provide access to participant's clinical record. The PACE program may charge for reasonable duplication costs.

(3) Confidentiality:

(a) PACE programs must have written policies and procedures to ensure that clinical records related to participants receiving services are kept confidential in accordance with ORS 179.505–179.507, 411.320, 433.045(3), 42 CFR Part 2, 42 CFR Part 431, subpart F, 45 CFR 205.50. If the PACE program is a public body within the meaning of the Oregon public records law, such policies and procedures will ensure that PACE participant's privacy is maintained in accordance with 192.502(2), 192.502(8) (Confidential under Oregon law) and 192.502(9) (Confidential under Federal law) or other relevant public record exemptions.

(b) The PACE program staff and their providers must not release or disclose any information concerning a PACE participant to anyone other than the PACE participant or the participant's guardian for any purpose not directly connected with the administration of the Medicare program for Medicare recipients or of Title XIX of the Social Security Act for Medicaid recipients except as directed by the PACE participant;

(c) Except in an emergency, PACE program providers must obtain a written consent from the PACE participant or the legal guardian, or the legal Power of Attorney for health care decisions of the PACE participant before releasing information. The written consent, e.g., the DHR 2098 and 2099, will specify the type of information to be released and the recipient of the information, and a copy of the consent form will be placed in the PACE participants clinical record. In an emergency, release of service information will be limited to the extent necessary to meet the emergency information needs and then only to those persons involved in providing emergency medical services to the PACE participant.

(d) The PACE program staff and it agents, employees and subcontractors must protect the PACE participant's individually identifiable health information obtained or maintained from unauthorized use or disclosure consistent with the requirements in the Health Insurance Portability and Accountability Act or the federal regulations implementing the Act (collectively referred to as HIPAA).

(4) Mandatory Reporters: Employees of a PACE program have a responsibility and legal obligation to observe, detect and report to Adult Protective Services any signs or presence of abuse or neglect. The identity of the person reporting suspected abuse is confidential. Identity of the reporting person may be disclosed with the consent of that person, by judicial process or as required to perform the investigation by a law enforcement agency.

History

Statutory/Other Authority: ORS 410.090
Statutes/Other Implemented: ORS 410.070
SPD 2-2005, f. & cert. ef. 1-4-05
SDSD 5-2000, f. 12-29-00 cert. ef. 1-1-01

Or. Admin. R. 411-045-0110 Participant Rights

(1) PACE programs must have written policies and procedures that ensure PACE participants have the rights and responsibilities included in this rule. The PACE organization must inform a participant upon enrollment, in writing, of his or her rights and responsibilities, and all rules and regulations governing participation.

(2) PACE programs must communicate these policies and procedures to PACE staff and participating providers.

(3) PACE programs must monitor compliance with policies and procedures governing PACE participant rights and responsibilities, take corrective action as needed, and report findings to the PACE programs Quality Improvement Committee.

(4) PACE participants must have the following rights:

(a) To be treated with dignity and respect. To be free from abuse or neglect;

(b) To be treated by providers the same as other people seeking health and long term care services;

(d) To have a friend, family member, representative, or advocate, present during appointments and at other times as needed within clinical guidelines;

(e) To be actively involved in the development of his or her care plan;

(f) To be given information about his or her condition and covered and non-covered services necessary to allow an informed decision about proposed treatment(s);

(g) To consent to treatment or refuse services, and be told the consequences of that decision, except for court ordered services;

(h) To receive written materials describing rights, responsibilities, benefits available, how to access services, and what to do in an emergency;

(i) To have written materials explained in a manner that is understandable to the PACE participant;

(j) To receive necessary and reasonable services to diagnose the presenting condition;

(k) To receive covered services under the PACE program that meet generally accepted standards of practice and are medically appropriate;

(l) To obtain covered preventive services;

(m) To have access to urgent and emergency services 24 hours a day, 7 days a week as described in OAR 411-045-0080(3);

(n) To receive a referral to specialty practitioners for medically appropriate covered services;

(o) To have a clinical record maintained that documents conditions, services received, and referrals made;

(p) To have access to one's own clinical record, unless restricted by statute;

(q) To transfer a copy of one's clinical record to another provider;

(r) To execute a statement of wishes for treatment, including the right to accept or refuse medical, surgical, chemical dependency or mental health treatment and the right to execute directives and powers of attorney for health care established under ORS 127 as amended by the Oregon Legislative Assembly 1993 and the OBRA 1990 — Patient Self-Determination Act;

(s) To receive written notices before a denial of, or change in, a benefit or service level is made, unless such notice is not required by federal or state regulations;

(t) To receive information on how to make a grievance with the PACE program and receive a response as defined in 411-045-0120;

(u) To request an administrative hearing with the Department of Human Services;

(v) To receive interpreter services as defined in OAR 411-045-0070 of the rule;

(w) To have the use of restraints (both physical and chemical) limited to the least restrictive and most effective method available. The use of such restraints must meet the requirements in 42 CFR 460.114; and

(x) To request that a qualified specialist for women's health services furnish routine or preventive women's health services.

History

Statutory/Other Authority: ORS 410.090
Statutes/Other Implemented: ORS 410.070
SPD 2-2005, f. & cert. ef. 1-4-05
SDSD 5-2000, f. 12-29-00 cert. ef. 1-1-01

Or. Admin. R. 411-045-0120 Grievance Process

(1) PACE programs must have written policies and procedures for the receipt, disposition and documentation of all grievances from PACE participants and their representatives. The PACE program's written procedures for handling grievances, must, at a minimum:

(a) Address how the PACE program will accept, process and respond to all grievances from PACE participants or their representatives, including expedited and additional reviews; and the continuation of care during the appeal process;

(b) Address the resolution of all grievances that PACE participants identify as needing resolution and must describe how grievances will be resolved or reviewed should the PACE participant or his or her representative decline to provide a release of information;

(c) Address how information concerning an PACE participant's grievance is kept confidential, with the exception that the Department and the local SPD/AAA office have the right to this information without a signed release from the PACE participant;

(d) Describe how the PACE program informs PACE participants, both orally and in writing, about the PACE program's grievance procedures. Information provided to the participant must include at least:

(A) Written material describing the grievance process;

(B) Assurance in all written, oral, and posted material of PACE participant confidentiality in the grievance process; and

(C) Information on alternatives to the PACE programs grievance and appeals process, including but not limited to, the Medicare appeals process, and the state's administrative hearing process.

(e) Include a requirement for a Department approved grievance and appeals log to be maintained by the PACE program; and

(f) Addresses how the PACE program will ensure the availability of a supply of blank complaint forms (OHP 3001) in all PACE sites and in the administrative offices.

(2) The PACE program must assure that a participant's or his or her representative's expression of dissatisfaction, or grievance is recognized and resolved by the PACE program's staff as follows:

(a) A PACE participant or the PACE participant's representative may relate any incident or concern to a PACE program staff person by indicating or expressing dissatisfaction. Grievances may also be termed concerns, complaints, problems, or issues by the PACE participant or the participant's representative;

(b) If the PACE participant or the participant's representative indicates dissatisfaction or concern, the PACE program staff person will advise the PACE participant or his or her representative that he or she may make a grievance using the PACE program's grievance process;

(c) Any PACE staff person the participant makes a grievance to must either resolve the grievance and communicate the grievance and its resolution to the PACE program staff person designated for receiving grievances, or direct the PACE participant to that person;

(d) If the PACE participant or participant's representative's intent is unclear, the PACE program's designee will determine if the expression of dissatisfaction is a grievance in need of resolution or if the PACE participant or the participant's representative does not wish a resolution and only wishes to register the grievance. If the participant or his or her representative wishes only to register the grievance, the grievance should be logged and reported the same as other grievances;

(e) If a PACE participant or the PACE participant's representative wishes the grievance to be resolved, the PACE program will ask the PACE participant or his or her representative to consent verbally to the release of information regarding the grievance to individuals who are directly involved in the grievance or to other individuals as needed to resolve the grievance. Verbal consent must be documented in the grievance file. A PACE participant's or his or her representative's consent to release information related to the grievance does not constitute consent to release medical information. If the participant or the participant's representative does not give consent, he or she should be advised that the grievance may not be resolved to their satisfaction;

(f) For situations when the PACE participant's life, health, or ability to regain maximum functioning is at risk, an expedited grievance process may be requested by the PACE participant or his or her representative, or the PACE program staff. In such cases, the investigation will begin within 24 hours and a determination must be provided to the PACE participant or his or her representative within 72 hours unless the PACE participant requests an extension to 14 days or the PACE program finds that the delay is in the best interest of the participant;

(g) Complaints concerning denial of service or service coverage will be handled as appeals as described in OAR 411-045-0130;

(h). The PACE program must within 5 working days from the date the participant or his or her representative files the grievance either:

(A) Make a decision on the grievance and proceed according to subsection (2)(i) of this rule; or

(B) Notify the PACE participant or the PACE participant's representative in writing that a delay indecision of up to 30 calendar days is necessary to resolve the grievance. The letter must specify the reasons the additional time is necessary.

(i) The PACE program's decision must be communicated to the PACE participant or his or her representative orally or in writing no later than 30 calendar days from the date of receipt. The decision must contain the following:

(A) An oral decision must address each aspect of the participant's grievance and explain the reason for the PACE program's decision. The oral decision must include informing the PACE participant of his or her rights to an administrative hearing;

(B) A written decision must be made if the grievance was received in writing

(i) The written decision on the grievance must review each element of the PACE participant's grievance and address each of those concerns specifically, including the reasons for the PACE program's decision;

(ii) The written decision must have the Notice of Hearing Rights (DMAP 3030).

(j) If the PACE participant does not wish to attempt to resolve the grievance through the use of the PACE program's internal grievance procedure, the staff person will notify the PACE participant or his or her representative that he or she has the right to seek resolution through the state's administrative hearing process, or if the participant is a Medicare beneficiary, through the Medicare appeals process. Under no circumstances may the PACE program discourage a PACE participant's use of the administrative hearing process. The PACE program, however, may explain to the PACE participant the potential benefits of using the PACE program's grievance procedure;

(k) Hearing requests made without previous use of the PACE program's grievance process will be forwarded to the PACE staff person designated to receive grievances for additional review by the SPD/AAA PACE Liaison Case Manager and reviewed as an extended grievance or as part of a informal meeting requested by the SPD/AAA Case Manager.

(3) Extended Review of Grievance:

(a) The PACE program may provide for additional review of a participant's grievance, as follows: If the PACE participant or his or her representative indicates dissatisfaction with the decision on the participant's grievance, the PACE program may provide the PACE participant with the opportunity to request another review pursuant to section (3) of this rule, in addition to the notice of hearing rights and hearing request;

(b) The additional or extended review may be offered by the PACE program in conjunction with the decision on the initial grievance and will not release the PACE program from the obligations to notify the participant or his or her representative of the participant's right to an administrative hearing and to provide a copy of DHS 443;

(c) The request for additional PACE program review of the grievance may be conveyed by the PACE participant, the PACE participant's representative or PACE programs designee, upon the request of the PACE participant;

(d) The additional PACE program review of the grievance will be reviewed, investigated, considered or heard by either:

(A) The PACE program's medical or program director; who was not involved in the original action; or

(B) A person or group, such as the Quality Improvement Committee or board of directors, responsible for internal review with the authority to make a final clinical or administrative decision at the PACE program level.

(e) A written decision, including the reasons for the PACE program's decision, will be mailed to the PACE participant or his or her representative no later than 30 calendar days from the date of receipt of the request for additional PACE program review of the grievance, unless:

(A) Further time is needed for the receipt of information requested from or submitted by the PACE participant and the new time frame is communicated to the participant in writing; or

(B) The PACE participant fails to provide the requested information within 30 calendar days of the request by the PACE program (or another mutually agreed upon time frame) the grievance may be resolved against the PACE participant.

(f) The PACE program's decision on the additional review of the PACE participant's grievance must have an additional Notice of Hearing Rights (DMAP 3030) attached.

(4) Responsibility for Documentation and Quality Improvement Review of Grievances:

(a) The PACE program's documentation must include, at the minimum:

(A) The log of all grievances including grievances that the participant chooses either to resolve through another process, or not to have resolved. The log will identify the PACE participant, the date of the grievance, the nature of the grievance, the resolution and the date of resolution or the date of a grievance where no resolution was requested; and

(B) A file of grievances and records of their review or investigation and resolution, including all written decisions and copies of correspondence with the PACE participant related to the grievance will be retained for seven years.

(b) The PACE programs must have written procedures for the review and analysis of all grievances received by the PACE program and the operation of the entire grievance process. The analysis of grievances will be forwarded to the Quality Improvement Committee as necessary to comply with the Quality Improvement standards;

(c) PACE programs will monitor the written log, on a monthly basis, for receipt, disposition and documentation of grievances.

(d) Monitoring of grievances will include, at a minimum, a review for completeness, accuracy, timeliness of documentation, and compliance with plan procedures for receipt, disposition, and documentation of grievances.

(5) Issues involving abuse or neglect shall be reported be PACE to the local SPD/AAA Protective Services office and shall be investigated according to the setting in which the incident occurred. PACE program staff are to be considered mandatory reporters under ORS 124.060 and 124.050(5).

History

Statutory/Other Authority: ORS 410.090
Statutes/Other Implemented: ORS 410.070
SPD 2-2005, f. & cert. ef. 1-4-05
SDSD 5-2000, f. 12-29-00 cert. ef. 1-1-01

Or. Admin. R. 411-045-0130 Appeal Process

(1) All denials, reductions, or terminations of services or service coverage by the PACE program must be in writing in accordance with Section (3) of this rule. PACE programs must make available to all PACE staff and contracted providers information concerning client notices, appeals and hearings processes.

(2) When the PACE program authorizes a course of treatment or covered service, but subsequently acts (as defined in 42 CFR 431.201) to terminate, discontinue, or reduce the course of treatment or a covered service, the PACE program must mail a written notice to the participant at least ten (10) working days before the date of the termination or reduction of the covered service unless there is documentation that the participant had previously agreed to the change as part of the course of treatment.

(3) The written client notice must be a Department approved format and is to be used for all denials, reductions, or terminations of services and denials of claims payment. The notice must inform the PACE participant of the following:

(a) Relevant information to include but is not limited to the following:

(A) Date of notice;

(B) Program name;

(D) Participant’s name and ID number;

(E) Date of Request/Service;

(F) Service or Item Requested or provided;

(G) Who Requested or Provided the item or service;

(H) Effective Date of Action;

(b) Reasons for the action to include the following:

(A) Treatment is not covered, item requires pre-authorization and it was not pre-authorized;

(B) It is not medically appropriate;

(D) Person was not a participant at the time of the service or is not a participant at the time of a requested service.

(E) The provider is not on the panel and person did not obtain prior approval;

(c) The PACE participant's right to file an appeal with the plan and request an administrative hearing with the Department including attaching the Notice of Hearing Rights (DMAP 3030) that includes a statement that the PACE participant may request continuation of benefits until a decision is rendered; and

(d) The telephone number to contact for additional information.

(4) The PACE program will have the following responsibilities in relation to section (2) of this rule:

(a) The PACE program must continue services if the PACE participant or PACE participant's representative requests an administrative hearing before the effective date of the client notice and requests that services be continued. The service must be continued until whichever of the following occurs first (but in no event should exceed ninety (90) days from the date of the participant's request for an administrative hearing):

(A) The current authorization expires; or

(B) A decision is rendered about the appeal; or

(b) The PACE program must notify the PACE participant or PACE participant's representative in writing that it is continuing the service. The notice must inform the PACE participant or PACE participant's representative that if the hearing is resolved against the PACE participant, the cost of any services continued after the effective date of the client notice may be recovered from the PACE participant pursuant to 42 CFR 431.230(b);

(A) The PACE program takes an action without providing the required notice and the PACE participant requests a hearing;

(B) The PACE program does not provide the notice in the time required under section (2) of this rule and the PACE participant requests a hearing within 10 days of the mailing of the notice of action; or

(d) The PACE program must promptly correct the action taken up to the limit of the original authorization, retroactive to the date the action was taken, if the hearing decision is favorable to the PACE participant, or the Department or the PACE program decides in the PACE participant's favor before the hearing even if the PACE participant has lost eligibility after the date the action was taken.

(5) If an appeal is made to a PACE program's staff person the appeal must be recognized by the PACE program, forwarded to the PACE staff person responsible for appeals, and answered in writing:

(a) The PACE program's staff person must notify the PACE participant or the participant's representative in accessible format of the decision that denied, discontinued or reduced the service(s) or coverage within five (5) working days. The decision letter must include at least the elements included in Section (3) of this rule;

(b) A copy of the Notice of Hearing Rights (DMAP 3030) and Administrative Hearing Request (DHS 443) must be attached.

History

Statutory/Other Authority: ORS 410.090
Statutes/Other Implemented: ORS 410.070
SPD 2-2005, f. & cert. ef. 1-4-05
SDSD 5-2000, f. 12-29-00 cert. ef. 1-1-01

Or. Admin. R. 411-045-0140 Administrative Hearings

(1) PACE participants are entitled to an administrative hearing by the Department regarding the action by the PACE program to deny services, payment of a claim, or to terminate, discontinue or reduce a course of treatment. PACE participants are also entitled to an administrative hearing for issues related to their eligibility for PACE benefits, or issues related to enrollment in a PACE program. Administrative hearings are governed by the following:

(a) A written hearing request must be received by the SPD/AAA PACE Liaison Case Manager no later than the 45th day following the date of the Notice of Action or written decision regarding an appeal;

(b) If the action involves a Notice of Action or decision concerning an appeal that involves continuation of services, and the PACE participant or PACE participant's representative wishes to have services continued while the hearing issue is being resolved, the PACE participant or PACE participant's representative must request a hearing before the effective date of the intended action or within 10 calendar days after the notice of action or written grievance decision was mailed or given to the PACE participant or PACE participant's representative.

(2) The SPD/AAA PACE Liaison Case Manager will review the administrative hearing requests, documentation related to the hearing issue, and computer records to determine whether the claimant or the person for whom the request is being made is or was a PACE participant at the time the action was taken, whether the hearing request was timely (requested within 45 calendar days of the Notice of Action, or the decision about a grievance) and whether continuation of benefits or services has been requested.

(3) The hearing request (DHS 443) must be referred to the Central Hearings Panel and a hearing officer requested. PACE administrative hearings are governed by OAR 461-025-0300–0375 and the following, except to the extent that Department rules apply.

(4) A final order must be issued or the case otherwise resolved by the Department no later than 90 days following the Department's receipt of the request for hearing. Delay due to a postponement or continuance granted at the PACE participant or the PACE participant representative's request or with the consent of the PACE participant or the PACE participant's representative will not be counted in computing the time limit. The final order is the final decision of the Department.

(5) The PACE program will immediately transmit to the SPD/AAA PACE Liaison Case Manager any hearing request submitted on behalf of a participant.

(6) If an administrative hearing is requested by a PACE participant or the participant's representative, the PACE program will cooperate in the hearing process and will make available, as determined necessary by the Department, all persons with relevant information, including the staff person who attempted resolution of the grievance or appeal. The PACE program will also provide all pertinent files and clinical records, as well as the results of the review by the PACE program of the grievance or appeal in the hearing request and any attempts at resolution by the PACE program to the Department.

(7) If the PACE participant or his or her representative files a request for an administrative hearing, the SPD/AAA PACE Liaison Case Manager will immediately notify the PACE program. The PACE program will review the hearing request as a grievance or an appeal depending on the nature of the complaint. The SPD/AAA PACE Liaison Case Manager shall evaluate the request and, if warranted, request an informal meeting and will notify the other departments as appropriate.

(8) A PACE participant or his or her representative may request a delay in the administrative hearing in writing. This delay will not relieve the PACE program of resolving the grievance or appeal that was referred to them by the SPD/AAA PACE Liaison Case Manager within 30 days.

(9) PACE programs will review the hearing request, which has not been previously received or reviewed as a grievance or appeal, using the PACE program's grievance and appeals process as follows:

(a) The grievance or appeal will be reviewed immediately and will be resolved, if possible, within 30 days of receipt of the request for hearing in the Department;

(b) The PACE program's decision must be in writing and will be provided to the SPD/AAA PACE Liaison Case Manager, and to the PACE participant or his or her representative;

(c) If the grievance or appeal is not resolved within 30 days, or the participant or his or her representative does not accept resolution proposed by the PACE program on the hearing request, the PACE program will provide the SPD/AAA PACE Liaison Case Manager with all pertinent material and documentation within 30 days from the date of the transmittal of the request for hearing from the Department grievances and appeals are defined in OAR 410-141-0000, Definitions.

(10) If the PACE participant or his or her representative chooses to use the PACE program's grievance or appeal procedure as well as the administrative hearing process, the PACE program will ensure that the process is completed within 30 days of receipt, and the records sent to by the 30th day.

(11) If a PACE participant or the PACE participant's representative feels the participant's medical or dental problem cannot wait for the normal PACE program review process, including the PACE program's final resolution he or she may request an expedited hearing. The PACE program will inform PACE participants of the participants' rights to request an expedited hearing and provide participants with a copy of DHS Form 443 and Notice of Hearing Rights.

(12) Expedited hearings are requested using DHS Form 443.

(13) The PACE program will submit relevant documentation to DMAP's Medical Director within, as nearly as possible, 2 working days for a decision as to the necessity of an expedited administrative hearing. DMAP's Medical Director, in consultation with SPD’s Medical Director, must decide within, as nearly as possible, 2 working days from date of request, if that PACE participant is entitled to an expedited hearing.

History

Statutory/Other Authority: ORS 410.090
Statutes/Other Implemented: ORS 410.070
SPD 2-2005, f. & cert. ef. 1-4-05
SDSD 5-2000, f. 12-29-00 cert. ef. 1-1-01

Division 46 BEHAVIOR SUPPORT SERVICES

Or. Admin. R. 411-046-0100 Purpose

(1) The rules in OAR chapter 411, division 46 establish standards and procedures for Medicaid Behavior Support Services. Behavior Support Services are provided to support a wide range of individuals who receive Medicaid funded home and community-based care services. The scope of these rules cover:

(a) Department contractors of Behavior Support Services;

(b) Licensed assisted living, residential, and adult foster home providers who provide Behavior Support interventions Services to eligible individuals who receive Behavior Support Services;

(c) In-home agencies, specialized living, or homecare workers who provide Behavior Support interventions to eligible individuals who receive Behavior Support Services.

(2) Behavior Support Services are provided by a behavior consultant who provides eligible individuals and their caregivers with:

(a) A Behavior Support Plan;

(b) Ideas and strategies to support an individualized Activity Plan; and

(3) The goals of Behavior Support Services are to:

(a) Ensure all individuals eligible for State Plan K Community First Choice or Independent Choices receive behavior interventions in a person-centered manner that follows the behavior support standards described in these rules.

(b) Ensure individuals who have diagnoses that place them ‘at risk’ of negative behaviors receive proactive environmental strategies and activities which promote:

(A) Placement stability;

(B) Quality of life; and

(c) Provide caregivers with the environmental strategies and communication skills to revise and implement a Behavior Support Plan.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 17-2014, f. & cert. ef. 6-23-14

Or. Admin. R. 411-046-0110 Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 046:

(1) "Abuse" means Abuse of an adult or elderly person as defined in ORS 124.050-095 and 430.735–430.765; and as defined in OAR 411-020-0002 for older adults and individuals with a physical disability who are 18 years of age or older.

(2) "Acquired brain injury or traumatic brain injury" means individuals who have or who are at risk of developing challenging behaviors as a result of a recent or longstanding brain injury diagnosis and who can benefit from Behavior Support Services. Acquired brain injury may include individuals with cognitive and behavioral disorders related to stroke, spinal cord injuries, or other neurological diseases that may benefit from Behavior Support Services.

(3) "Activation date" means service activation date as defined in these rules.

(4) "Activity evaluation" is part of the person-centered evaluation to determine what activities an individual enjoys doing.

(5) "Activity Plan" is part of the Behavior Support Plan and includes an activity list of the specific, private, group and community person-centered activities the individual finds meaningful or enjoys. The plan includes strategies to help caregivers ensure these activities become part of the individual’s daily routine.

(6) "Adult foster home" means a licensed home providing services to a person who is eligible for or is receiving Behavior Support Services per OAR chapter 411, division 50.

(7) "Behavior consultants" are Medicaid providers who have a contract with the Department to provide Behavior Support Services. When Behavior Support Services are provided as part of a supplemental or specific needs contract, per OAR chapter 411, division 027, the behavior consultant is a designated employee, who meets the qualifications of a behavior consultant, and has a job description to provide Behavior Support Services.

(8) "Behavior interventions" mean any planned or repeated pattern of interventions or social interactions intended to modify an individual’s environment or behavior.

(9) "Behavioral support" means the theories and evidenced-based practices supporting a proactive approach to behavioral intervention and that:

(a) Emphasize the development of functional alternative behavior;

(b) Prevent the need for, or minimize the use of, intrusive or restrictive interventions;

(d) Evaluate the effectiveness of behavior interventions based on objective data.

(10) "Behavior Support Interventions" means the caregiver’s implementation of the Behavior Support Plan.

(11) "Behavior Support Plan" means the written document that describes individualized support strategies designed to make the individual’s challenging behaviors irrelevant, inefficient or ineffective while reinforcing alternative behavior that achieves and satisfies the same need as the challenging behavior. The Behavior Support Plan will identify caregiver interventions to help caregivers deescalate, reduce, or tolerate challenging behavior when it occurs. The strategies focus on environmental, social, and physical factors that affect the behavior, while including supports for communication, personal choice, and specific preferences.

(12) "Behavior Support Services" mean a set of Medicaid funded services that include:

(a) Person-centered evaluation;

(b) A Behavior Support Plan;

(d) Monitoring to evaluate the plan’s impact;

(e) Revision of the plan;

(f) Updating coaching and activities; and

(g) May include consultation with the caregiver on mitigating behaviors that place an individual's health and safety at risk and to prevent institutionalization.

(13) "Business day" means the days the "local office" is open.

(14) "Caregiver" means any person providing services to an eligible individual in a home and community-based care setting. Caregivers are designated by their employer to receive coaching from the behavior consultant.

(15) "Case manager" means a person employed by the Department or Area Agency on Aging who:

(a) Assesses the service needs of an applicant;

(b) Determines eligibility;

(d) Authorizes referrals for a Behavior Support Service consultation, or placement in a program where Behavior Support interventions are provided, as part of the Medicaid supplemental or specific needs contracted service rate.

(16) "Coaching" means the direction provided by the behavior consultant to caregivers or designated caregivers on the Behavior Support and Activity Plans. Coaching includes:

(a) Demonstrations by the consultant;

(b) Observation or role play by caregivers on providing a specified intervention; and

(17) "Crisis management" means an individual:

(a) Has a medical or physical health need;

(b) Is exhibiting psychiatric symptoms or behaviors that necessitate emergency medical attention;

(d) Needs hospitalization for physical health or psychiatric health reasons.

(18) "Dementia" means major neurocognitive disorders, listed in the Diagnostic and Statistical Manual of Mental Disorders (DSMV), which result in loss of cognitive function, interfere with an individual's daily functioning, and may affect an individual's language; memory; speech; movement; perception; and ability to think, learn, reason or follow social norms. Symptoms may include changes in personality, mood, and behavior.

(19) "Department" means the Department of Human Services or the Department's designee.

(20) "Designated caregivers" means the employees of a home or community-based care contractor, who are assigned to assist the behavior consultant with gathering information, review of the Behavior Plans, and are the recipients of coaching activities. The person responsible for coordination of services provided to an individual residing in their own home, under OAR chapter 411, division 30, is considered either the ‘designated caregiver’ or the person who assigns designated caregivers.

(21) "Enhanced care services" means a selected licensed adult foster home, nursing, or residential care facility where long term care supports are provided under a specific needs contract and mental health rehabilitation services are provided on site five to seven days a week.

(22) "Exception payment" means a payment to the provider per OAR 411-027-0050.

(23) "Healthcare provider" means a licensed provider providing services to an eligible individual including, but not limited to:

(a) Home health,

(b) Hospice,

(d) Primary care,

(e) Specialty care,

(f) Pharmacy, or

(g) Hospitalization.

(24) "Home and community-based care contractor" means a Department contractor who is providing Medicaid funded residential or in-home services to an individual eligible for or receiving services under these rules. Residential or in-home services include:

(a) Adult foster homes;

(b) Assisted Living Facilities;

(d) Residential care facilities;

(e) Specialized living; and

(f) In-home services.

(25) "Home and community-based care services" mean services approved by the Centers for Medicare and Medicaid Services for eligible individuals who are aged and physically disabled in accordance with State Plan K Community First Choice requirements.

(26) "Individual" means a person eligible for and receiving Behavior Support Services.

(27) "In-home care agency" means a licensed agency as described in OAR chapter 333, division 536 or a "home health agency" as defined in ORS 443.005, which has a contract with the Department to provide services for State Plan K Community First Choice or Independent Choice.

(28) "In-home services" means the Medicaid Program provided under OAR chapter 411, division 30, using caregivers who are either employees of in-home care agencies or who are employed by the Individual.

(29) "Initial person-centered evaluation" means the person-centered evaluation the behavior consultant begins at the first visit to determine what behavior supports the individual needs.

(30) "Local office" means the Department office or Area Agency on Aging, responsible for Medicaid services including case management, referral, authorization, and oversight of Behavior Support Services provided to an individual.

(31) "Mandatory Department forms" mean the forms required to document the services in these rules. Mandatory forms are posted on the Department website.

(32) "Memory care communities" means the programs that include Behavior Support Services per OAR chapter 411, division 57.

(33) "Person-centered" means a formal or informal planning process for gathering and organizing information to help an individual:

(a) Determine and describe choices about personal goals, activities, and lifestyle preferences;

(b) Design strategies and networks of support to achieve goals and a preferred lifestyle using individual strengths, relationships, and resources; and

(34) "Person-centered evaluation” means the information gathered by the behavior consultant to create a Behavior Support Plan, which includes an activity evaluation. The person-centered evaluation process includes observation of the individual and interviews with the individual, their caregivers, members of the individual's service planning team, the case manager, and social supports.

(35) "Provider" means an entity that hires employees or subcontractors who meet the behavior consultant qualifications in OAR 411-046-0180, have a contract with the Department to provide Behavior Support Services, and is an enrolled Medicaid provider who meets:

(a) The requirements in these rules;

(b) The requirements in OAR 407-120-0300 Medicaid provider enrollment and claiming; and

(36) "Residential care and assisted living facilities" means the licensed entity providing services per OAR chapter 411, division 54 to an individual eligible for or receiving Behavior Support Services.

(37) "Service activation date" means the date which all timeframes begin. This date is either the date of the referral for Behavior Support Services, or a later date that is approved by local office management.

(38) "Service plan" means the service or care plan provided to the Medicaid eligible individual who is determined to need or is receiving Behavior Support Services required under:

(a) Adult Foster Homes, OAR chapter 411, division 50;

(b) Residential Care and Assisted Living Facilities, OAR chapter 411, division 54;

(d) In-Home Services, OAR chapter 411, division 030.

(39) "Specialized living services" means the Department contractor performing services provided per OAR chapter 411, division 65 for an individual living in a designated home-based location.

(40) "Specific needs or supplemental contract" means the services which are covered under OAR 411-027-0075, payment limitations in community-based care services.

(41) "Service notes" means the documentation which documents the coaching, monitoring, and other services provided by the behavior consultant to implement the Behavior Support Plan on the Department's mandatory form.

(42) "These rules" mean the rules in OAR chapter 411, division 46.

(43) "Written approval" means the Department’s certification of a provider to be a behavior consultant.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 17-2014, f. & cert. ef. 6-23-14

Or. Admin. R. 411-046-0120 Eligibility

(1) Individuals must meet the following requirements to receive Behavior Support Services:

(a) Be eligible for home and community-based care services provided through APD; and

(b) Be receiving services through either State Plan K Community First Choice or Independent Choices.

(2) Behavior Support Services may be provided to eligible individuals noted in (1) above who may benefit from the service or have caregivers who may benefit from the service based on the individual's functional needs assessment that is performed by the case manager. An eligible individual includes, but is not limited to:

(a) An individual at risk of requiring behavior interventions;

(b) An individual whose caregiver requests assistance in developing person-centered interventions;

(d) An individual at risk of involuntary move out or who has received an eviction notice;

(e) An individual receiving Medicaid service payments to support behavior interventions, such as a behavior add-on or an exception; or

(f) An individual whose provider receives a payment for costs associated with interventions needed to address the individual’s challenging behaviors.

(3) All Behavior Support Services must be pre-authorized by:

(a) The eligible individual’s case manager; or

(b) A Department authorized placement in a home or community-based care setting where the Medicaid service payment includes Behavior Support Services.

(4) Eligible individuals, or their designated representative, may request or refuse to participate in Behavior Support Services. Consultation may still be provided to the care provider.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 17-2014, f. & cert. ef. 6-23-14

Or. Admin. R. 411-046-0130 Limitations

(1) Behavior Support Services, defined in this rule, may not be provided to:

(a) Individuals who are receiving:

(A) Specific needs setting contracted rate for "enhanced care services"; or

(B) Services through Developmental Disabilities per OAR chapter 411, division 308, OAR chapter 411, division 330, or OAR chapter 411, division 325.

(b) Individuals receiving services in a nursing facility or hospital;

(2) Behavior consultation services may not be provided solely to:

(a) Assist in protective service investigations or licensing inspections;

(b) Assist in administrative functions such as, pre-admission screenings, eligibility determinations, or case manager assessments; or

(c) Replace or support interventions for adult protective services, crisis management, law enforcement, or 911 emergency services that are required when the behavior of concern is causing an immediate danger to the client, other residents, or caregivers.

(3) Behavior Support Services are separate from interventions addressing behavior symptoms as part of:

(a) Mental health therapy or counseling;

(b) Health or mental health plan coverage; or

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 17-2014, f. & cert. ef. 6-23-14

Or. Admin. R. 411-046-0140 Behavior Support Services

(1) Behavior Support Services assist individuals with behavioral challenges, due to their disability, in accomplishing activities of daily living, instrumental activities of daily living, and health-related tasks.

(2) Behavior Support Services include consultation to the caregiver on mitigating behavior that may place the individual's health and safety at risk and to prevent institutionalization.

(3) All referrals must be made by the individual’s case manager, on the Department's mandatory form, which is sent to the Behavior Support Service provider.

(4) Behavior Support Service providers, their employees, or subcontractors acting as behavior consultants, must provide the following services to individuals they accept for services:

(a) Review of Referral.

(A) The Behavior Support Service consultant or provider must provide a documented decision regarding denial or acceptance of the referral within 2 business days.

(B) Service activation dates that are more than 7 days past the referral acceptance date must be approved by the referring Case Manager.

(C) Providers must ensure adequate numbers of behavior consultants are available to meet the service needs of all individuals accepted for service.

(D) The following entities must be informed of accepted referrals by the case manager:

(i) The individual or their legal representative; and

(ii) The person in charge of the individual's Medicaid residential or home-based service plan.

(b) Person-Centered Evaluations.

(A) An initial person-centered evaluation shall be started within 5 business days of the service activation date. The evaluation may be updated at the discretion of the behavior consultant, based on information gathered from coaching activities.

(B) Person-centered evaluation activities must support the Behavior Support Plan interventions, the scope of services provided, and include, at a minimum the content noted on the Department’s mandatory form.

(D) As part of the person-centered evaluation, the behavior consultant must conduct an activity evaluation.

(A) The Behavior Support Plan shall be documented on the Department’s mandatory form and completed within 20 business days of the initial person-centered evaluation or updated within 5 business days of any new evaluation activity. The plan must support the interventions and scope of the services provided.

(B) The behavior consultant is responsible for developing a Behavior Support Plan that considers the resources available at the individual’s home.

(C) All strategies in the Behavior Support Plan must align with the individual’s residential service or care plan and activity program required under licensing or Medicaid Program rules.

(D) The Behavior Support Plan must be explained to the individual in a manner the individual can understand.

(E) The plan must include:

(i) An Activity Plan that is developed following an activity evaluation. The activity evaluation must examine, but is not limited to examining, the individuals:

(I) Past and current interests;

(II) Current abilities and skills as they relate to activities of daily living, instrumental activities of daily living, and health-related tasks;

(III) Emotional and social needs and patterns;

(IV) Physical abilities and limitations;

(V) Adaptations necessary for the resident to participate in their activities of choice;

(ii) A list of person-centered activities must be identified based on the evaluation and included as a distinct part of the Behavior Support Plan. The list must include structured and non-structured activities that meet the individual's current preferences. Activities include, but are not limited to:

(I) Occupation or chore related tasks;

(II) Scheduled and planned events (e.g. entertainment, outings);

(III) Spontaneous activities for enjoyment or that may help diffuse a behavior;

(IV) One to one activities that encourage positive relationships between residents and staff (e.g. life story, reminiscing, music);

(V) Spiritual, creative, and intellectual activities;

(VI) Sensory stimulation activities;

(VII) Physical activities that enhance or maintain a resident’s ability to ambulate or move;

(VIII) Outdoor activities; and

(IX) Night time activities.

(F) Identification of strategies to help caregivers provide activities and address emergent behaviors.

(G) Completed Behavior Support Plans, and any subsequent updates, must be reviewed with, and provided to, the people responsible for the individual’s residential or home-based service plan and provided to the case manager.

(H) The behavior consultant must document a minimum of one review of the Behavior Support Plan with a designated caregiver on the Department’s mandatory form.

(I) Behavior Support and Activity Plans must be modified based on feedback from coaching activities, to ensure caregiver participation and to evaluate the proposed strategies.

(d) Coaching Caregivers.

(A) The behavior consultant must develop a coaching plan describing how they will coach each caregiver to implement the Behavior Support Plan. The coaching plan may be included in the Behavior Support Plan.

(B) The behavior consultant must schedule and initiate onsite coaching to the designated caregivers within 30 business days of service activation.

(C) The behavior consultant should review information with the caregiver's employer and include, at a minimum the following content:

(i) Review of the Behavior Support Plan;

(ii) Discussion on how activities can be incorporated into the individual’s daily routine;

(iii) Demonstration of desired interventions by the behavior consultant;

(iv) Observation or role play by the caregiver on implementing portions of the Behavior Plan; and

(v) Gathering of feedback from caregivers on how to modify the plan or activities.

(vi) The review may be conducted as part of a coaching activity.

(vii) The Behavior consultant will advise caregivers to contact primary the health care provider or long term care nurse, as a part of coaching, when it relates to an individual possibly experiencing a medical issue that may be impacting their behaviors, or if medication interaction may be a concern related to behaviors.

(D) Documentation of all coaching activity, including dates and participants, must be provided on the Department’s mandatory form and, upon request, provided to the employers or supervisors of the designated caregivers who received coaching.

(e) Monitoring.

(A) The behavior consultant must provide at least two onsite monitoring visits to:

(i) Conduct observations;

(ii) Gather information;

(iii) Evaluate caregiver and individual responses to the Behavior Support and the Activity Plans; and

(iv) Carry out coaching activities.

(B) After the Behavior Support Plan is completed and a minimum of two on-site coaching visits are conducted, monitoring can be provided by phone or through secure video conferencing, if all parties agree.

(f) Service Plan Coordination.

(A) Completed Behavior Support Plans are considered part of the individual’s activity, service, or care plan required by the home and community-based care license or Medicaid Program.

(i) Home and community-based care contractors must assign enough designated caregivers to ensure the interventions described in the Behavior Support Plan, including the Behavior Support Interventions, can be implemented in accordance with licensing or Medicaid Program standards.

(ii) Home and community-based care contractors must identify charting protocols for the behavior consultant to document any onsite activity provided to the eligible individual or their caregiver.

(iii) If the behavior consultant identifies any barriers that prevent the implementation of the Behavior Plan, they must notify the home and community-based care contractor within 2 business days.

(iv) Home and community-based care contractors must report to case managers, within 5 business days, if the Behavior Support Plan cannot be implemented or if the behavior consultant is not utilizing input from caregivers or the service planning team.

(B) Behavior consultants who are not providing services as part of a supplemental or specific needs setting contract may participate on the individual’s service planning team or mental health treatment team only to review the individual’s Behavior Support Plan.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 17-2014, f. & cert. ef. 6-23-14

Or. Admin. R. 411-046-0150 Authorizations

(1) Behavior Support Services must be prior-authorized by the eligible individual’s case manager using the referral process noted in OAR 411-046-0140(4)(a). The Case manager is responsible for ensuring the individual is eligible for an initial referral and ongoing Behavior Support Services.

(2) Service hours for person-centered evaluation and development of the Behavior Support Plan are authorized by the individual’s case manager effective on the date the behavior consultant accepts and signs the Department approved referral form.

(3) Case managers can authorize up to 40 hours for the initial assessment, service planning, and follow up. An additional 40 hours may be approved by the local office management for ongoing service delivery. The Department may approve additional hours as defined in OAR 411-046-0220 if the individual’s functional needs assessment indicates the need for additional hours.

(4) For services noted in OAR 411-046-0140(4)(a) to (4)(f), the provider should make every effort to complete them within 120 days from the service activation date. However, prior authorizations are effective for a full 12 month period from the initial service activation date. After 12 months, a new authorization must be requested and approved.

(5) Authorizations for service hours must be completed by the local office within 5 business days of receiving notification of referral acceptance.

(6) Prior authorizations are in effect for a 12 month period from the initial service activation date. After 12 months, a new authorization must be requested and approved.

(7) Requests for more than 80 hours of service must be reviewed and approved by the Department.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 17-2014, f. & cert. ef. 6-23-14

Or. Admin. R. 411-046-0160 Communication

(1) Required Reporting.

Behavior consultants must report suspected or known neglect or abuse of all adults and elderly individuals as required by ORS 124.050 to 095, 430.735 to 765 and 419B to 419B.045.

(2) Confidentiality.

(a) Behavior consultants must adhere to the confidentiality standards as described in the Department contract as well as the Federal HIPAA privacy rules.

(b) Any written, verbal, digital, video, and electronic information regarding an individual must adhere to the Department's confidentiality standards as described in OAR chapter 407, division 14 and Federal HIPAA standards.

(3) Notification.

(a) Behavior consultants must notify the home and community-based care contractor of the following:

(A) Life threatening health and safety concerns must be reported immediately. This communication may occur in person or by phone.

(B) Concerns regarding a caregiver's response to coaching activity must be reported as soon as possible. This communication may occur in person, by phone, or by email.

(C) Any permanent reassignment of a behavior consultant must be reported within 5 business days or prior to onsite service delivery. This communication may occur in person, by phone, or by email.

(b) Behavior consultants must notify the case manager or local office designee of the following:

(A) Life threatening health and safety concerns of an individual must be reported immediately, by phone or in person.

(B) Concerns regarding the individual’s placement must be reported within one business day. This communication may occur by email or phone.

(C) Any permanent reassignment of a behavior consultant, must be reported within 5 business days or prior to onsite service delivery. This communication may occur by email or phone.

(D) An administrator, licensee, or designated caregiver who is unwilling or unable to implement the Behavior Support Plan, after completion of coaching plans and service coordination activities. This communication may occur by email or phone.

(c) Case managers and behavior consultants are required to exchange information regarding changes in the individual’s eligibility status, service location, or service needs during the duration of the Behavior Support Service.

(d) Behavior consultants must report suspected abuse immediately to the local Departmental office, designee office, or by calling the Department’s toll-free abuse reporting hotline.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 17-2014, f. & cert. ef. 6-23-14

Or. Admin. R. 411-046-0170 Documentation

(1) Compliance with documentation standards in this rule and completion of mandatory Department forms is intended to ensure communication between case managers and home and community-based care providers.

(2) The documentation requirements in this rule do not replace or substitute for the documentation requirements in the:

(a) Medicaid Provider Rules governing provider requirements as described in OAR chapter 407, division 120, Provider Rules, MMIS Provider Enrollment and Claiming; Contractor Audits, Appeals and Post Payment Recoveries;

(b) Medicaid General Rules under OAR chapter 410, division 120 as applicable; and

(3) Behavior consultants are expected to complete mandatory Department forms for support services provided under 411-046-0140.

(4) Use of alternative, but equivalent forms, may be approved by the Department using the exceptions process under 411-046-0220 or as defined in supplemental or specific needs setting contracts or individuals who receive Behavior Support Services as part of their monthly service rate.

(5) Mandatory forms must be sent to the case manager before or at the time of submission of invoices or before receipt of the monthly Medicaid service rate.

(a) Documentation must support the services billed and adhere to the timeframes noted in this rule and on the mandatory forms.

(b) Claims will not be paid until the mandatory forms are submitted to the individual’s case manager and the documentation noted in 411-046-0170(2) is completed.

(6) Behavior Support Service providers are expected to maintain a written record of all services provided to, and for, an individual and an individual's caregiver.

(a) The record must include copies of all documentation provided to the:

(A) Case manager;

(B) Home and community-based care contractor; and

(b) The record must be retained until the behavior consultant no longer provides services to the individual, at which time, the behavior consultant or the agency must provide a copy of any part of the record that was not previously provided to the case manager.

(c) The behavior consultant or agency must retain the original record, following HIPAA practices, for a period of seven years.

(d) All documentation must be provided in HIPAA secure format.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 17-2014, f. & cert. ef. 6-23-14

Or. Admin. R. 411-046-0180 Qualifications for Providers and Behavior Consultants

(1) The Department shall select qualified providers according to standards:

(a) In these rules;

(b) In OAR 407-120-0320; and

(2) Providers must be enrolled as a Medicaid provider.

(3) Behavior consultants must complete the background check process described in OAR 407-007-0200 to 407-007-0370 with an outcome of approved or approved with restrictions.

(4) Behavior Support Service Medicaid providers must have a Department contract to provide:

(a) Home or community-based care services defined under a specific needs setting, and which includes Behavior Support Services as part of the contracted rate; or

(b) Behavior Support Services with qualified employees or subcontractors who provide time limited consultation, at a range of settings, where the referred individual lives.

(5) A Behavior Support Service Medicaid provider must employ or subcontract with behavior consultants who meet all of the following requirements:

(a) Pass the Department required criminal record check processes per OAR 407-007-0200 to 407-007-0370 and meet one of the following:

(A) Pass the Behavior Consultant Competency Evaluation administered by a Department approved contractor;

(B) Possess and maintain certification from a Department approved program noted on the Department website; or

(C) Have written approval to perform behavior consultant work from the Department based upon review of resume, certification, or education. Requests for this approval must follow 411-046-0220, exceptions to rules.

(b) Maintain compliance with continuing education requirements under 411-046-0210.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 17-2014, f. & cert. ef. 6-23-14

Or. Admin. R. 411-046-0190 Disenrollment or Termination

(1) Medicaid providers of Behavior Support Services, their behavior consultant employees, or subcontractors may be terminated or prohibited from providing services for any of the following:

(a) Violation of any part of these rules;

(b) Violation of the protective service and abuse rules in OAR chapter 411, division 20 and chapter 407, division 45;

(c) A demonstrated pattern of repeated unsubstantiated complaints of neglect and abuse per OAR chapter 411, division 020 and chapter 407, division 045;

(d) Failure to meet behavior consultant qualifications or continuing education requirements;

(e) Failure to provide copies of records to designated Department or Oregon Health Authority entities;

(f) Repeated failure to participate in Behavior Support Plan review or service planning meetings when requested by an individual's case manager;

(g) Failure to provide the services noted in these rules; or

(h) Fraud or misrepresentation in the provision of services under these rules.

(2) Medicaid providers have rights to appeal a termination based on OAR 407-120-0360(8)(g) and, as applicable, OAR chapter 410, division 120.

(3) Medicaid providers of these services must provide 30 day written notice, or more if specified in contract, to the Department of the decision to cease services.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 17-2014, f. & cert. ef. 6-23-14

Or. Admin. R. 411-046-0200 Compensation and Billing

(1) All billing and claims must comply with OAR 407-120-0330; OAR 407-120-0340; and chapter 410, division 120, as applicable.

(2) Compensation for Behavior Support Services in supplemental or specific needs setting contracts shall be defined through the Department contract.

(3) The Department may adjust rates in underserved areas to ensure individuals have access to services.

(4) Failure to comply with standards in this rule may result in determination of overpayment for which restitution may be sought.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 17-2014, f. & cert. ef. 6-23-14

Or. Admin. R. 411-046-0210 Continuing Education Requirements

(1) Behavior consultants must maintain a record verifying completion of at least 12 hours of continuing education per year in person-centered care or behavior support training that is provided by a Department approved trainer or training organization noted on the Department website.

(2) Requests for documentation verifying compliance with this requirement must be provided upon request to the Department.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 17-2014, f. & cert. ef. 6-23-14

Or. Admin. R. 411-046-0220 Exceptions to Rules

(1) Exceptions to these rules may be made by the Department central office and must be granted by the Department in writing. Implementation of an exception may not occur without written approval.

(2) On a case specific basis, the following exceptions may be granted by local office managers:

(a) Changing the timeframes for service activation,

(b) Initiating the person-centered evaluation,

(d) Initiating coaching.

(3) Requests for exceptions to the rules must include, but are not limited to, a written request provided to central office management for prior approval. Documentation must include:

(a) Local office management support for the exception request;

(b) Description of the benefit to the individual or program served by the Department as result of the exception;

(A) The exception will be granted;

(B) Rationale for why the exception is needed;

(D) Identification of alternatives (including rule compliance); and

(E) Costs, if any, of the exception.

(4) Exceptions will not impact compliance, and will not result in non-compliance, with any OAR other than chapter 411, division 46.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 17-2014, f. & cert. ef. 6-23-14

Division 48 LONG TERM CARE COMMUNITY NURSING

Or. Admin. R. 411-048-0150 Purpose

(1) The rules in OAR chapter 411, division 048 establish standards and procedures for Medicaid enrolled providers who provide long term care community nursing services. Long term care community nursing services provide ongoing registered nurse (RN) services to eligible individuals who are receiving services in a Medicaid-funded home and community-based setting.

(2) Long term care community nursing services provide the following:

(a) Evaluation and identification of supports that help an individual maintain maximum functioning and minimize health risks, while promoting the individual's autonomy and self-management of healthcare.

(b) Teaching an individual, or the individual's caregiver or family, what is necessary to assure the individual's health and safety in a Medicaid-funded home and community-based setting as described in OAR 411-048-0180.

(d) Providing case managers and healthcare providers with the information needed to maintain an individual’s health, safety, and community living situation while honoring the individual's autonomy and choices.

History

Statutory/Other Authority: ORS 409.050 & 410.070
Statutes/Other Implemented: ORS 409.010 & 410.070
APD 30-2021, amend filed 08/25/2021, effective 08/25/2021
APD 10-2021, temporary amend filed 02/24/2021, effective 03/01/2021 through 08/27/2021
SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 8-2013, f. & cert. ef. 4-15-13

Or. Admin. R. 411-048-0160 Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 048:

(1) "AAA" means the Area Agency on Aging designated by the Department that is responsible for providing a comprehensive and coordinated system of services to older adults and adults with disabilities in a designated planning and service area.

(2) "Abuse" means:

(a) "Abuse" as it applies to a "child" as those terms are defined in ORS 419B.005.

(b) "Abuse" as it applies to a "child in care" as those terms are defined in ORS 418.257.

(d) "Abuse" as defined in ORS 124.005 and OAR 411-020-0002 for older adults and adults with a physical disability who are 18 years of age or older.

(3) "Business Day" means the day that the "Local Office" is open for business.

(4) "Care Coordination" means the email, faxes, phone calls, meetings and other types of information exchange, consultation, and advocacy provided by an RN on behalf of an individual that is necessary for the RN’s assessments, complete medication reviews, provide for individual safety needs, and implement an individual's Nursing Service Plan.

(5) "Caregiver" means any person responsible for providing services to an eligible individual in a Medicaid-funded home and community-based setting. A caregiver may include an unlicensed person as a designated caregiver as described in OAR chapter 851, division 048.

(6) "Case Manager" means a person employed by the Department, CDDP, Support Services Brokerage, or AAA who assesses the service needs of an applicant, determines eligibility, and offers service choices to the eligible individual. The case manager authorizes and implements an individual's plan for services and monitors the services delivered.

(7) "CDDP" means "Community Developmental Disability Program" as defined in OAR 411-317-0000.

(8) "Day Support Activities" as defined in OAR 411-317-0000.

(9) "Delegation Process" means the standards and processes described in OAR chapter 851, divisions 006, 045, and 047.

(10) "Department" means the Oregon Department of Human Services or the Department's designee.

(11) "Department Approved Form" means the forms used by an RN and case manager to support these rules. The Department maintains these documents on the Department's website https://www.oregon.gov/odhs/providers-partners/ltccn/Pages/resources.aspx#forms

(12) "Direct Hands-on Nursing" means an RN providing treatment or therapies directly to an individual instead of teaching or delegating the tasks of nursing to the individual's caregiver. Payment for direct hands-on nursing services is not reimbursed unless an exception has been granted by the Department as described in OAR 411-048-0170.

(13) "Documentation" means a written record of all services provided to, and for, an individual and an individual's caregiver that is maintained by an RN as described in OAR 411-048-0200.

(14) "Employment Services" through the Office of Developmental Disabilities Services as defined in OAR 411-317-0000 or through Vocational Rehabilitation as described in OAR chapter 582.

(15) "Enrolled Medicaid Provider" means an entity or individual that meets and completes all the requirements in these rules, OAR 407-120-0300 to 0400, and OAR chapter 410, division 120, as applicable.

(16) "Healthcare Provider" means a licensed provider delivering services to an eligible individual such as, but not limited to, home health, hospice, mental health, primary care, specialty care, durable medical equipment, pharmacy, or hospitalization.

(17) "Home" means a non-licensed setting where an individual is receiving Medicaid-funded home and community-based services.

(18) "Home and Community-Based Services" as defined in OAR 411-004-0010.

(19) "Home Health Agency" as defined in ORS 443.443.014.

(20) "Individual" means a person eligible for long term care community nursing services under these rules.

(21) "In-Home Care Agency" as defined in ORS 443.305.

(22) "Local Office" means the Department office, AAA, CDDP, or Support Services Brokerage, responsible for Medicaid services including case management, referral, authorization, and oversight of long term care community nursing services in the region where the individual lives and where the long term care community nursing services are delivered.

(23) "Long Term Care Community Nursing Services" mean a distinct set of services that focus on an individual’s chronic and ongoing health and activity of daily living needs. Long term care community nursing services includes assessments, monitoring, delegation, teaching, and coordination of services that addresses an individual’s health and safety needs in a Nursing Service Plan that supports individual choice and autonomy. The requirements in these rules are provided in addition to any nursing related requirements stipulated in the licensing rules governing the individual's place of residence.

(24) "Medication Review" means a review focused on an individual's medication regime that includes examination of the prescriber's orders and related administration records, consultation with a pharmacist or the prescriber, clarification of PRN (as needed) parameters, and the development of a teaching plan based upon the needs of the individual or the individual's caregiver. In an unlicensed setting, the medication review may include observation and teaching related to administration methods and storage systems.

(25) "Nursing Assessment" for the purpose of payment under this program means an assessment defined in OAR chapter 851, division 006 and codified in OAR chapter 851, division 045 as a legal requirement of the RN practice and within the scope of the nurse’s license.

(26) "Nursing Service Plan" also referred to as Plan of Care, means the plan that is developed by an RN based on an RN’s initial nursing assessment of the individual, reassessment, or updates made to a nursing assessment as a result of monitoring visits.

(27) "OSBN" means the Oregon State Board of Nursing. OSBN is the agency responsible for regulating nursing education, licensing, and practice for the purpose of protecting the public's health, safety, and well-being.

(28) "Rate Schedule" means the rate schedule maintained by the Department in OAR 411-027-0170 and posted at http://www.dhs.state.or.us/spd/tools/program/osip/rateschedule.pdf.

(29) "RN" means a registered nurse licensed by the OSBN. An RN providing long term care community nursing services under these rules is either an independent contractor who is an enrolled Medicaid provider or an employee of an organization that is an enrolled Medicaid provider. A Licensed Practical Nurse (LPN) or Certified Nursing Assistant (CNA) are not an RN under these rules.

(30) "Support Services Brokerage" means "Brokerage" as defined in OAR 411-317-0000.

(31) "These Rules" mean the rules in OAR chapter 411, division 048.

(32) “Unregulated Assistive Person” or “UAP” is the same as caregiver as defined in (5) of these rules. CNAs and Certified Medication Aides (CMAs) are certified and not licensed.

History

Statutory/Other Authority: ORS 409.050 & 410.070
Statutes/Other Implemented: ORS 409.010 & 410.070
APD 18-2023, amend filed 10/13/2023, effective 11/01/2023
APD 30-2021, amend filed 08/25/2021, effective 08/25/2021
APD 10-2021, temporary amend filed 02/24/2021, effective 03/01/2021 through 08/27/2021
APD 34-2014, f. & cert. ef. 10-1-14
APD 12-2014(Temp), f. & cert. ef. 5-1-14 thru 10-28-14
SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 8-2013, f. & cert. ef. 4-15-13

Or. Admin. R. 411-048-0170 Eligibility and Limitations

(1) ELIGIBILITY. Long term care community nursing services may be provided by an RN to an individual if the individual meets the following requirements:

(a) The individual must be determined eligible for Medicaid-funded home and community-based services provided through the Department.

(b) The individual must be receiving services through one of the following:

(A) A child who lives in the family home and receives children’s intensive in-home services as described in OAR chapter 411, division 300.

(B) An adult foster home for:

(i) Individuals with intellectual or developmental disabilities as described in OAR chapter 411, division 360; or

(ii) Individuals found eligible for service in OAR chapter 411, division 015 residing in a Medicaid enrolled adult foster home as described in OAR chapter 411, divisions 049 through 052.

(C) A foster home for children with intellectual or developmental disabilities as described in OAR chapter 411, division 346.

(D) An adult or child who live in their own or family home as described in OAR chapter 411, division 030 or division 450.

(E) Independent Choices Program participants as described in OAR chapter 411, division 030.

(F) State Plan personal care participants as described in OAR chapter 411, division 034 or division 455.

(G) An adult who is eligible to receive day support activities as described in OAR chapter 411, division 450 or eligible to receive employment services as described in OAR chapter 411, division 345.

(H) Long term care community nursing services may be provided for individuals while receiving services in settings for employment services or day support activities regardless of their residential home and community-based setting.

(c) The individual must be referred by their case manager for long term care community nursing services. Individuals may request long term care community nursing services through their case manager.

(2) LIMITATIONS.

(a) Long term care community nursing services may not be provided to:

(A) A resident of a nursing facility, assisted living facility, or residential care facility.

(B) An individual residing in a setting where nursing services are already provided and paid as part of a contract or agreement with the Department. The Department will not issue duplicate or unbundled payments for nursing services.

(b) Case managers may not prior authorize long term care community nursing services that duplicate nursing services provided by Medicare or other Medicaid programs.

(c) Long term care community nursing services do not include nursing activities used for administrative functions such as protective service investigations, pre-admission screenings, eligibility determinations, licensing inspections, case manager assessments, or corrective action activities. This limitation does not include authorized care coordination as defined in OAR 411-048-0160.

(d) Long term care community nursing services do not include reimbursement for direct hands-on nursing as defined in OAR 411-048-0160.

(3) EXCEPTIONS. An exception to sections (2)(c) and (2)(d) of this rule may be requested as described in OAR 411-048-0250.

History

Statutory/Other Authority: ORS 409.050 & 410.070
Statutes/Other Implemented: ORS 409.010 & 410.070
APD 18-2023, amend filed 10/13/2023, effective 11/01/2023
APD 30-2021, amend filed 08/25/2021, effective 08/25/2021
APD 10-2021, temporary amend filed 02/24/2021, effective 03/01/2021 through 08/27/2021
APD 34-2014, f. & cert. ef. 10-1-14
APD 12-2014(Temp), f. & cert. ef. 5-1-14 thru 10-28-14
SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SPD 8-2013, f. & cert. ef. 4-15-13

Or. Admin. R. 411-048-0180 Long Term Care Community Nursing Services

When authorized by an individual's case manager, the following long term care community nursing services must be provided by an RN in accordance with these rules and the scope of practice as stated in the OSBN rules in OAR chapter 851.

(1) REVIEW OF REFERRAL. An RN must screen a referral and notify the individual's case manager of their decision to accept or refuse the referral within two business days of receiving the referral on the Department approved form. The RN may refuse any referral.

(2) INITIAL ASSESSMENT. The RN must perform a face-to-face nursing assessment within 10 business days following the acceptance of a referral. The assessment is defined in OAR chapter 851, division 006 and regulated by OAR chapter 851, division 045.

(a) The RN must document the nursing assessment pursuant to OAR chapter 851, divisions 006 and 045.

(b) The RN must send copies of the nursing assessment to the individual's case manager. If the RN recommends ongoing long term care community nursing services, the RN must also send a copy of the Nursing Service Plan as described in section (4) of this rule..

(3) REASSESSMENT. For the purpose of this rule, the RN must perform a face-to-face reassessment and update the individual's Nursing Service Plan at a minimum annually. Based on the RN’s assessment of the individual, the RN may determine that an assessment needs to occur more frequently. Reasons for increased frequency may include, but are not limited to, a change of condition or change of environment.

(a) The RN must complete the reassessment within 10 business days of the date the reassessment started.

(b) The RN must document the date, time and results of the reassessment and send copies of the reassessment to the individual's case manager and include an updated Nursing Service Plan as described in section (4) of this rule.

(c) Each reassessment requires the RN to update the nursing service plan and perform a medication review. The documentation must support the reason for the re-assessment, have a detailed description of the activities the RN provided to develop the new nursing service plan and include detailed information about the changes in the individual’s condition and the scope, duration, and frequency of all nursing interventions.

(4) NURSING SERVICE PLAN. Based on the initial assessment or reassessment, the RN develops or updates the individual's Nursing Service Plan and must:

(a) Prioritize actual or potential client needs, risk of both;

(b) Identify expected outcomes for needs and risks identified using quantitative and qualitative measures of effectiveness;

(c) Establish interventions and strategies designed to assist the client in attaining expected outcomes and the planned scope, duration and frequency of each intervention;

(d) Identify implementation, timelines, and documentation requirements for the plan of care;

(e) Utilize standardized language appropriate to the context of care;

(f) Complete and document Nursing Service Plan on the Department approved form and provide the Nursing Service Plan to an Individual’s case manager within 10 business days of the date that an initial assessment or a reassessment is initiated; and

(g) Attend a minimum of two Nursing Service Plan review meetings each year with an individual’s case manager. This meeting can be held face-to-face, phone or other secure state approved conference technology.

(5) DELEGATION. The RN must follow the standards and documentation requirements for delegation of nursing tasks as required by OAR chapter 851, divisions 006, 045, and 047.

(a) The RN alone, based on professional judgment and the Oregon Nurse Practice Act regulations, makes the determination to delegate or not delegate a nursing procedure to a UAP, or to rescind a UAP’s authorization to perform a nursing procedure.

(b) The RN must provide the case manager with:

(A) An estimate of the number of hours required for the delegation process;

(B) The individual delegation process needs identified in the Nursing Service Plan; and

(C) Keep the case manager informed of ongoing delegation activities on the Nursing Service Summary form (SDS 0752) and Nursing Service Plan form (SDS 0754).

(c) The RN must keep Medicaid funded home and community-based setting providers informed through completion of the Nursing Service Summary form (SDS 0754) for delegation at initial assessment and all subsequent delegation activities of the delegation decisions and activities provided to unregulated assistive person..

(6) TEACHING. The RN must follow the standards and documentation requirements for teaching health promotion as described in OAR 851-045-0060.

(a) The RN must develop and document a teaching plan that describes and communicates the reason the teaching is needed and the specific goals for the individual or the individual's caregiver.

(b) Teaching related to non-injectable medications must be provided by an RN in accordance with OAR chapter 851, division 045 and The Teaching of the Administration of Lifesaving Treatments specific to intramuscular injections identified in ORS 433.800 through 433.830 must be provided by the RN in accordance with Oregon Health Authority Training on Lifesaving Treatment Protocols. https://www.oregon.gov/oha/ph/providerpartnerresources/emstraumasystems/pages/epi-protocol-training.aspx

(7) MONITORING. The RN must provide monitoring visits at the individual’s home, sufficient in frequency and duration to implement and keep current an individual's Nursing Service Plan.

(a) The RN must document the projected frequency of monitoring visits in an individual's Nursing Service Plan and may adjust the frequency based on the complexity of the Nursing Service Plan and the individual's needs.

(b) Calls with providers, caregivers, or an individual to review health status, follow up on instructions, or exchange information related to care coordination are considered a monitoring visit.

(8) MEDICATION REVIEW. The RN must provide a medication review during each monitoring visit and as part of an initial assessment or reassessment. The scope of a medication review shall be based on the needs of the individual or the individual's caregiver. Information collected and evaluated as part of a medication review may result in changes to an RN's nursing plan of care, subsequent Teaching Plan or care coordination activity.

(9) CARE COORDINATION. The RN provides care coordination in order to advocate for health care services that an individual needs and to gather the information that is needed to complete the assessment, nursing service plan or reassessment process, and medication review. The RN uses care coordination to provide updated information to people involved in an individual’s health care via phone calls, faxes, electronic mediums, or meetings. Care coordination is provided, but not limited, to case managers, other nurses, healthcare providers, and non-caregiving family members or legal representatives.

(10) Time spent completing the services described in sections (3) through (9) of this rule may be included in the claim for the respective service but must meet documentation standards specified in OAR 410-120-1360(2)(a)(b) and the Department’s Long Term Care Community Nursing Procedure Codes and Payment Authorization Guidelines.

(11) PRIOR AUTHORIZATION. All long term care community nursing services in sections (2) through (9) of this rule must be prior authorized by an individual’s case manager.

(a) The RN must use an individual's Nursing Service Plan to estimate the number of hours needed for long term care community nursing services within a six month time period. The RN must document the estimated number of long term care community nursing service hours on the Department approved form for authorization and send the Department approved form for authorization to the individual's case manager.

(b) The case manager must authorize the proposed hours after reviewing the individual's completed Nursing Service Plan. The case manager must complete the prior authorization within five business days of receiving the Department approved form for authorization and the individual's completed Nursing Service Plan.

(12) Prior authorization for the initial assessment and delegation of services described in sections (2) and (5) of this rule is granted once the Department approved form for referral is signed by the RN and the individual's case manager. The payment received by an RN for initial assessment shall include compensation for all long term care community nursing services excluding delegation, provided by the RN to the individual and the individual's caregiver. Payment is not provided until prior authorization as described in section (11) of this rule has been provided to the RN by the individual's case manager.

(13) The RN must use the Department approved Service Summary form as the communication tool for case managers and caregivers to document the monitoring, care coordination, teaching, delegation, or other services as noted in these rules provided to each individual.

(14) A local office manager may grant an exception to the timeframes required in this rule on a case specific basis.

History

Statutory/Other Authority: ORS 409.050 & 410.070
Statutes/Other Implemented: ORS 409.010 & 410.070
APD 18-2023, amend filed 10/13/2023, effective 11/01/2023
APD 30-2021, amend filed 08/25/2021, effective 08/25/2021
SPD 8-2013, f. & cert. ef. 4-15-13

Or. Admin. R. 411-048-0190 Communication and Notification Practices

(1) MANDATORY REPORTING. The RN must report suspected or known neglect or abuse of all older adults, adults, and children as required by ORS 124.050 to 095, ORS 418, ORS 430.735 to 765, ORS 441, ORS 419B.005 to 045, ORS 676.150 and OSBN’s ORS 678.135.

(2) The RN or agency must notify the Department in writing of material changes in any status or condition that relates to their qualifications or eligibility to provide medical assistance services.

(3) CONFIDENTIALITY.

(a) The RN must protect client confidential information in a manner consistent with current laws, standards as described in OAR chapter 851 as well as the federal regulations adopted to implement the Health Insurance Portability and Accountability Act.

(b) The RN must provide all written, verbal, digital, video, and electronic information regarding an individual in accordance with the Department's confidentiality parameters as described in OAR chapter 407, division 014 and the federal regulations adopted to implement the Health Insurance Portability and Accountability Act.

(4) NOTIFICATION.

(a) The RN must communicate any potential or actual life-threatening health and safety concerns immediately to:

(A) 911, police, or physician as appropriate to address emergent or urgent safety concerns; and

(B) The local office protective service worker, worker of the day, or case manager.

(b) If while performing long term care community nursing services under these rules the RN determines that an individual's health condition is unstable or a significant change of condition is noted, the RN must either notify the individual's physician or primary care provider directly or ensure that the individual's UAP has reported this information to the physician or primary care provider.

(c) The RN must notify the individual's case manager or local office management within one business day the individual’s non-life threatening but high-risk concerns including:

(A) Changes in condition as described in subsection (b) of this section,

(B) Concerns about, or changes in, the client’s current place of residence, or

(d) The RN must notify the individual's case manager if the RN becomes aware that an individual has recently received a significant healthcare intervention such as an emergency room visit, hospitalization, a change in physician, referral to a specialist, home health, or hospice.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 18-2023, amend filed 10/13/2023, effective 11/01/2023
SPD 8-2013, f. & cert. ef. 4-15-13

Or. Admin. R. 411-048-0200 Additional Documentation Requirements

(1) The RN must meet the documentation, record keeping, and communication standards as required by the Department. The RN who meets the Department’s standards remains responsible to also document in accordance with the Nurse Practice Act. This documentation shall include a record of all RN delegation as described in OAR 411-048-0180 and the RN’s initial and assessment of the nursing procedures delegated to the individual’s unregulated assistive person.

(2) The documentation standards in this rule and on the Department approved forms provided by the Department do not replace or substitute for the documentation requirements in the:

(a) Rules for professional nursing standards as prescribed by the OSBN in OAR chapter 851, divisions 006, 045, and 047;

(b) Medicaid provider rules governing provider requirements in OAR chapter 407, division 120; and

(3) The RN is expected to complete the Department approved forms specified by the Department to support the long term care community nursing services in these rules. The Department may approve the use of alternative but equivalent forms.

(4) The RN must send completed forms to the case manager prior to or at the time of invoice submission. Documentation must support the long term care community nursing services billed and adhere to the timeframes noted in these rules.

(a) An individual's case manager must receive the required forms and documentation to pay a claim.

(b) The provider must submit true, accurate and complete information when billing the Department. Use of a billing provider does not overrule the performing provider’s responsibility for the truth and accuracy of submitted information.

(c) Authorization or payment by the department does not restrict or limit the Department, Authority or any state or federal oversight entity’s right to review or audit a claim before or after the payment.

(d) Failure to comply with the documentation standards in this rule may result in the determination of overpayment for which recovery may be sought.

(5) All electronic documentation must be sent in HIPAA secured format.

(6) The self-employed RN that is enrolled as a Medicaid provider or an agency enrolled as a Medicaid provider as described in OAR 411-048-0210 must maintain a record of all long term care community nursing services provided to each assigned individual and the individual's caregiver and as required by OAR 410-120-1280 for individuals served through a Medicaid program.

(a) The record must include copies of all documentation provided to the local office as well as any additional documentation the RN or agency maintained to meet OSBN and Medicaid provider rules.

(b) The documentation must be retained in an electronic or hard copy format until the RN or agency no longer provides long term care community nursing services to the individual, at which time the RN or agency must provide the individual's case manager a copy of any part of the record not previously provided.

(c) The RN or agency must retain original records in hard copy or electronic format for each individual following Department security and HIPAA practices for a period of seven years.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 18-2023, amend filed 10/13/2023, effective 11/01/2023
SPD 8-2013, f. & cert. ef. 4-15-13

Or. Admin. R. 411-048-0210 Qualifications for Enrolled Medicaid Providers

(1) The Department may determine the number and type of enrolled Medicaid providers in a geographic area to assure that there is an appropriate number of qualified enrolled Medicaid providers to meet the needs of individuals eligible for long term care community nursing services.

(2) The Department shall select qualified enrolled Medicaid providers for long term care community nursing services according to the standards in these rules, OAR 407-120-0320, and OAR chapter 410, division 120 as applicable.

(3) The long term care community nursing services provided under these rules may be delivered by the following enrolled Medicaid providers:

(a) An RN who is a self-employed provider.

(b) Home health agencies meeting the requirements in OAR chapter 333, division 027.

(4) A self-employed RN who enrolls with the Department to provide long term care community nursing services under these rules must:

(a) Pass a background check as defined in OAR 407-007-0200 to 407-007-0370 and OAR 407-007-0600 to 407-007-0640; and

(b) Provide and have available verification of all of the following:

(A) A current and unencumbered Oregon Registered RN license.

(B) Certification of professional liability insurance and commercial general liability insurance with coverage that meets Department requirements.

(i) A minimum of two years full time or equivalent verifiable experience practicing as an RN in an in-home, home health, skilled nursing, hospital, or Department licensed community setting. At least one of these two years must have occurred within three years of the date the RN enrolls with the Department; and

(ii) One year experience with providing RN delegation service in the last two years or

(iii) A pass score on the Department's test on OSBN’s OAR chapter 851, divisions 006, 045, and 047 to demonstrate satisfactory experience and the skills necessary to perform the duties as described under these rules.

(D) Contact information for people or entities that verify the qualifications and expertise documented pursuant to this section.

(5) Agencies listed in section (3)(b) and (c) of this rule who enroll with the Department to provide long term care community nursing services under these rules must:

(a) Have a current and unencumbered Oregon license pursuant to OAR chapter 333, division 027 or OAR chapter 333, division 536 and maintain compliance with existing in home or home health agency licensing rules;

(b) Provide and have available verification of all of the following:

(A) Policies and procedures for the in home or home health agency to credential RNs before hiring or contracting and recredential RNs at least every three years to ensure each RN has and maintains a current and unencumbered Oregon RN license at all times. The agency must maintain records of all credentialing and recredentialing activities.

(B) Certification of professional liability insurance and commercial general liability insurance with coverage that meets Department requirements.

(C) Documentation verifying the qualification and expertise of the RNs hired by the agency to provide long term care community nursing services including:

(i) Experience with the RN delegation process in the community-based setting;

(ii) Contact information for people or entities that verify the qualifications and experience documented pursuant to this section; and

(iii) A background check as defined in OAR 407-007-0200 to 407-007-0370 and OAR 407-007-0600 to 407-007-0640.

(D) Evidence of policies and procedures ensuring that the agency and its employees follow the specific standards in OAR chapter 411, division 048 and OAR chapter 410, division 120 (as applicable) that may exceed OAR chapter 333, divisions 027 or 536.

History

Statutory/Other Authority: ORS 409.050 & 410.070
Statutes/Other Implemented: ORS 409.010 & 410.070
APD 18-2023, amend filed 10/13/2023, effective 11/01/2023
APD 30-2021, amend filed 08/25/2021, effective 08/25/2021
SPD 8-2013, f. & cert. ef. 4-15-13

Or. Admin. R. 411-048-0220 Medicaid Provider Disenrollment / Termination

(1) Enrolled Medicaid providers of long term care community nursing services, or RN employees of an agency enrolled as a Medicaid provider delivering long term care community nursing services may be denied enrollment, terminated, or prohibited from providing long term care community nursing services for, but not limited to, any of the following:

(a) Violation of any part of these rules at any time.

(b) Violation of the protective service and abuse rules in OAR chapter 411, division 020 and OAR chapter 407, division 045.

(c) Violation of the applicable service rules in OAR chapter 410, division 120 or 173, or the provider rules in OAR chapter 333, division 027 or 536.

(d) Any sanction or action as a result of an OSBN investigation.

(e) Failure to keep required licensure or certifications current.

(f) Failure to provide copies of the records described in these rules to designated Department or Oregon Health Authority entities.

(g) Failure to participate in Nursing Service Plan review or care coordination meetings when requested by an individual's case manager.

(h) Failure to obtain a pass score on the Department's test on OSBN’s OAR division 006, 045, and 047 as requested by the Department.

(i) Failure to provide services.

(j) Fraud or misrepresentation in the application for enrollment or for the provision of long-term care community nursing services.

(k) Evidence of conduct derogatory to the standards of nursing as described in OAR 851-045-0070 that results in referral to OSBN.

(l) A demonstrated pattern of repeated unsubstantiated complaints of neglect or abuse per OAR chapter 411, division 020 or OAR chapter 407, division 045.

(m) Exclusion by the Office of Inspector General from participating in publicly funded programs. Agencies listed in section (3)(b) and (c) of this rule are prohibited from employing or paying any excluded person or entity and must promptly notify the Authority Health Systems Division's Provider Enrollment Unit or the Office of Inspector General in writing of any violation.

(2) Enrolled Medicaid providers may appeal a termination of their Medicaid provider number based on OAR 407-120-0360(8)(g) and OAR chapter 410, division 120 as applicable.

(3) Enrolled Medicaid providers of long term care community nursing services must provide advance written notice to the Department at least 30 days prior to no longer providing long term care community nursing services.

(4) An RN ending long term care community nursing services must comply with the OSBN's standards regarding transition of care and transfer or rescinding of delegations per OAR chapter 851, division 047.

History

Statutory/Other Authority: ORS 409.050 & 410.070
Statutes/Other Implemented: ORS 409.010 & 410.070
APD 18-2023, amend filed 10/13/2023, effective 11/01/2023
APD 30-2021, amend filed 08/25/2021, effective 08/25/2021
SPD 8-2013, f. & cert. ef. 4-15-13

Or. Admin. R. 411-048-0230 Compensation and Billing

(1) All long term care community nursing services must be authorized by an individual's case manager using Department approved forms provided by the Department prior to the delivery of long term care community nursing services.

(2) All billing and claims must comply with:

(a) OAR 407-120-0330 and 407-120-0340;

(b) OAR chapter 410, divisions 120 and 173 as applicable; and

(c) The Long Term Care Nursing Procedure Codes and Payment Authorization Guidelines posted at https://www.oregon.gov/odhs/providers-partners/ltccn/Pages/resources.aspx#billing

(3) Compensation for long term care community nursing services in OAR 411-048-0180 shall be defined in the Department's rate schedule. The Department may adjust rates in underserved areas to assure that individuals have access to long term care community nursing services.

(4) Payment for non-Medicaid covered services must be prior authorized by the Department and billed on Department approved invoices.

(a) Rates for non-Medicaid services shall be determined by the Department but may not exceed the rate noted on the Department's rate schedule.

(b) The Department makes payment for non-Medicaid covered services within 45 days of receipt of the completed invoice.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 18-2023, amend filed 10/13/2023, effective 11/01/2023
SPD 8-2013, f. & cert. ef. 4-15-13

Or. Admin. R. 411-048-0240 Orientation Requirements

(1) A self-employed RN or agency administrator as described in OAR 411-048-0210 must complete an orientation with the Local Office for the area they intend to provide services. The orientation must be completed prior to accepting Referrals as described under OAR 411-048-0180.

(2) Local office management and RN or agency administrator shall review at a minimum the following:

(a) Local area practices that the RN should be aware of, schedules or best access times for case managers.

(b) Local CCO resources and practices that the RN or agency may need to know about.

(d) Develop expectation regarding when the RN or agency should contact management for concerns regarding the program, a client, a case manager or other providers.

(e) Review any questions the RN or agency may have from the program material and connect with LTCCN Contract Administrator for any additional guidance.

(f) Other procedures as required by ODHS offices or designee.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 18-2023, amend filed 10/13/2023, effective 11/01/2023
SPD 8-2013, f. & cert. ef. 4-15-13

Or. Admin. R. 411-048-0250 Variances

(1) The Department may grant a variance to these rules. Implementation of a variance may not occur without the Department's written approval.

(2) A request for a variance to these rules must include but not be limited to the following standards:

(a) A written request must be provided to central office Department management for prior approval. The variance request must include;

(A) Local office management support for the variance request;

(B) A description of the benefit to the individual served by the Department that may occur as result of the variance; and

(C) Details regarding the specific rule for which the variance may be granted, the rationale for why the variance is needed, the proposed duration of the variance, identification of alternatives (including rule compliance), and costs of the variance if any.

(b) The variance may not impact compliance with any rules other than these rules for long term care community nursing services in OAR chapter 411, division 048.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 18-2023, amend filed 10/13/2023, effective 11/01/2023
SPD 8-2013, f. & cert. ef. 4-15-13

Division 49 ADULT FOSTER HOMES FOR OLDER ADULTS OR ADULTS WITH PHYSICAL DISABILITIES - PURPOSE, DEFINITIONS, AND LICENSURE

Or. Admin. R. 411-049-0100 Purpose

(1) The purpose of the rules in OAR chapter 411, division 049, 050, 051, and 052 is to establish the minimum standards and procedures for Adult Foster Homes (AFH) that provide care and services for adults who are older or adults with physical disabilities in a homelike environment that is safe and secure.

(2) Adult foster homes:

(a) Provide necessary care and services that emphasize the resident's independence through a cooperative relationship between the resident (or court-appointed guardian) and the resident's care providers.

(b) Care and services are provided in a setting that protects and encourages resident dignity, choice, and decision-making while addressing the needs of the resident in a manner that supports and enables the residents to maximize their ability to function at the highest level of independence possible.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730 & 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 443.001 - 443.004, 443.705 - 443.825 & 443.875, 443.991
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-049-0102 Temporary rule language in effect until 01/27/2027. Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 049, 050, 051, and 052:

(1) "AAA" means an Area Agency on Aging, which is an established public agency within a planning and service area designated under Section 305 of the Older Americans Act that has responsibility for local administration of programs within the Oregon Department of Human Services (ODHS).

(2) "Abuse" means "abuse" as defined in OAR 411-020-0002 (Adult Protective Services).

(3) "Activities of Daily Living (ADL)" mean the personal, functional activities described in OAR 411-015-0006 required by an individual for continued well-being, which are essential for health and safety. Activities include eating, dressing and grooming, bathing and personal hygiene, mobility, elimination, and cognition.

(4) "Administrator" means the person who is designated by the Licensee that is responsible for the daily operation and maintenance of the AFH.

(5) "Adult Day services" means care, assistance, and supervision of an individual who is older, as defined in these rules, who does not stay overnight.

(6) "Adult Foster Home (AFH)" means any family home or other facility where residential care is provided in a homelike environment for compensation to five or fewer adults who are not related to the licensee, administrator, resident manager, or floating resident manager, by blood, marriage, or adoption and who are 65 years of age or older or an adult with a physical disability. AFHs are home and community-based settings as defined in OAR chapter 411, division 004. For the purpose of these rules:

(a) "Adult foster home" does not include any house, institution, hotel, or other similar living situation that supplies room or board only, if no resident thereof requires any element of care.

(b) "Facility" and "Home" are synonymous with the term "Adult Foster Home".

(7) "Advance Directive" or "Advance Directive for Health Care" means the legal document signed by a resident that provides health care instructions in the event the resident is no longer able to give directions regarding his or her wishes. The directive gives the resident the means to control his or her own health care in any circumstance. "Advance Directive for Health Care" does not include Physician Orders for Life-Sustaining Treatment (POLST).

(8) "Applicant" means an individual, partnership, corporation, or other entity who completes an application to own or operate an AFH. An individual applicant may also complete an application to become an administrator, resident manager, floating resident manager, or shift caregiver. "Applicant" is synonymous with "Co-applicant".

(9) "Background Check" means a criminal records check and abuse check as defined in OAR 407-007-0210. An approved "Background Check" means a final determination, made by an authorized agency or district that the subject individual is fit to:

(a) Hold a position, paid or not paid;

(b) Obtain or retain credentials;

(d) Otherwise provide services necessary for the health, welfare, maintenance or protection of an individual.

(10) "Background Check Rules" means the rules in OAR 407-007-0200 to 407-007-0370.

(11) "Back-Up Provider Agreement" means an agreement between the licensee and another licensee, approved administrator, resident manager, or approved floating resident manager, who does not live in the home, and has agreed to oversee the operation of an AFH of the same license classification or higher in the event of an emergency. The Department’s (APD 0350) form may be used in place of the succession plan. (See “Succession Plan”).

(12) "Behavioral Interventions" mean those interventions that modify a resident's behavior or a resident's environment.

(13) "Board of Nursing Rules" means the standards and practice for licensed practical nurses and registered nurses to teach and delegate to unlicensed persons according to the statutes and rules of the Oregon State Board of Nursing (OSBN) ORS 678.010 to 678.445 and OAR chapter 851, division 045 and 047.

(14) "Care" means the provision of assistance with activities of daily living to promote a resident's maximum independence and enhance the resident's quality of life. "Care" includes, but is not limited to, assistance with bathing, dressing, grooming, eating, money management, recreation, and medication management excluding assistance with self-medication.

(15) "Caregiver" means any person providing care and services to residents. (See "Qualified Caregiver").

(16) "Care Plan" means a licensee or administrator's written description of a resident's needs, preferences, and capabilities, including by whom, when, and how often care and services are to be provided.

(17) "CFR" or "Code of Federal Regulations" or means the codification of the rules and regulations published in the Federal Register and produced by the executive departments and agencies of the federal government of the United States.

(18) "Classification" means a designation of license assigned to a licensee based on the qualifications of the licensee, administrator, resident manager, floating resident manager, and shift caregivers, as applicable.

(19) "CMS" means the United States Department of Health and Human Services, Centers for Medicare and Medicaid Services.

(20) "Compensation" means monetary or in-kind payments by or on behalf of a resident to a licensee in exchange for room, board, care, and services. "Compensation" does not include the voluntary sharing of expenses between or among roommates.

(21) "Complaint" means an allegation of abuse, a violation of these rules, or an expression of dissatisfaction relating to a resident or the condition of an AFH.

(22) "Condition" means a provision attached to a new or existing license that limits or restricts the scope of the license or imposes additional requirements on the licensee.

(23) "Consumer" means an individual eligible for Medicaid services for whom case management services are provided by the Department.

(24) "Delegation" means the process where a registered nurse teaches and supervises a nursing procedure to an unlicensed person. The OSBN defines an unlicensed person as any caregiver or certified nursing assistant (CNA). (See OAR chapter 851, division 047).

(25) "Department" means the Oregon Department of Human Services (ODHS) unless otherwise specified.

(26) "Designated Representative" means:

(a) Any adult, such as a parent, family member, guardian, advocate, or other person who is:

(A) Chosen by the individual, or as applicable the legal representative;

(B) Not a paid provider for the individual; and

(C) Authorized by the individual, or as applicable the legal representative, to serve as the representative of the individual, or as applicable the legal representative, in connection with the provision of funded supports.

(b) The power to act as a designated representative is valid until the individual modifies the authorization or notifies the agency that the designated representative is no longer authorized to act on the individual's behalf.

(27) "Director" means the Director of the Oregon Department of Human Services or that person's designee.

(28) "Disability" means a physical, cognitive, or emotional impairment, which for an individual, constitutes or results in a functional limitation in one or more activities of daily living.

(29) "Emergency Preparedness Plan" means a written procedure that identifies a facility's response to an emergency or disaster for minimizing loss of life, mitigating trauma, and to the extent possible, maintaining services for residents, and preventing or reducing property loss.

(30) "Entity" means an individual, a trust or estate, a partnership, a corporation (including associations, joint stock companies, and insurance companies), a state, or a political subdivision or instrumentality, including a municipal corporation.

(31) "Exclusion Lists" mean the following federal lists that exclude listed individuals from receiving federal awards, not limited to Medicaid and Medicare programs:

(a) The U.S. Office of Inspector General's Exclusion List at www.exclusions.oig.hhs.gov/; and

(b) The U.S. General Services Administration's System for Award Management Exclusion List at www.sam.gov.

(32) "Exempt Area" means a county where there is a county agency that provides similar programs for licensing and inspection of AFHs that the Director finds are equal or superior to the requirements of ORS 443.705 to 443.825 and that the Director has exempted from the license, inspection, and fee provisions of ORS 443.705 to 443.825.

(33) "Family Member" means spouses in a legally recognized marriage or domestic partnership, natural parent, child, sibling, adopted child, adoptive parent, adoptive sibling, stepparent, stepchild, stepbrother, stepsister, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild, aunt, uncle, niece, nephew, or first cousin.

(34) "Final Point of Safety" means a designated assembly area located on a public sidewalk or street not less than 50 feet away from an AFH where occupants of the home evacuate in the event of an emergency.

(35) "Floating Resident Manager" means an employee of the licensee, approved by the LLA, who under the direction of the licensee, is directly responsible for the care of residents in one or more AFHs owned by that licensee. A "floating resident manager" is not required to live in any one AFH owned by his or her employer, except on a temporary basis, as directed by the licensee, when the regularly scheduled caregiver is unavailable.

(36) “Gender expression” means a person’s gender-related appearance and behavior, whether or not these are stereotypically associated with the sex the person was assigned at birth.

(37) “Gender identity” means a person’s internal, deeply held knowledge or sense of the person’s gender, regardless of physical appearance, surgical history, genitalia, legal sex, sex assigned at birth or name and sex as it appears in medical records or as it is described by any other person, including a family member, conservator or legal representative of the person. A person’s gender identity is the last gender identity conveyed by a person who lacks the present ability to communicate.

(38) “Gender nonconforming” means having a gender expression that does not conform to stereotypical expectations of one’s gender.

(39) “Gender transition” means a process by which a person begins to live according to that person’s gender identity rather than the sex the person was assigned at birth. The process may include changing the person’s clothing, appearance, name or identification documents or undergoing medical treatments.

(40) “Harass” or “harassment” means to act in a manner that is unwanted, unwelcomed, or uninvited, or that demeans, threatens or offends a resident.

(a) This includes bullying, denigrating, or threatening a resident based on a resident’s actual or perceived status as a member of one of the protected classes in Oregon, as provided:

(A) Race.

(B) Color.

(D) Religion.

(E) Disability.

(F) Sex (includes pregnancy).

(G) Sexual orientation.

(H) Gender identity.

(I) Age.

(J) Marital status

(b) An example of “harassment” includes, but is not limited to, requiring a resident to show identity documents in order to gain entrance to a restroom or other area of a care facility that is available to other person of the same gender identity as the resident.

(41) "Home and Community-Based Services" or "HCBS" means Home and Community-Based Services as defined in OAR chapter 411, division 004.

(42) "Home and Community-Based Settings" or "HCB Settings" means a physical location meeting the qualities of OAR 411-004-0020 where an individual receives Home and Community-Based Services.

(43) "Homelike" means an environment that promotes the dignity, security, and comfort of residents through the provision of personalized care and services, and encourages independence, choice, and decision-making by the residents.

(44) "House Policies" or the "Home's Policies" means the written and posted statements addressing house activities in an AFH identified in the Residency Agreement.

(45) "Indirect Ownership Interest" means an ownership interest in an entity that has an ownership interest in the AFH.

(46) "Individual" means an adult who is at least 65 years of age or is an adult with physical disabilities who is receiving Home and Community-Based Services, including those receiving adult day services.

(47) "Individually-Based Limitation" or "Limitation" means any limitation to the qualities outlined in OAR 411-004-0020(1)(d) and (2)(d) to (2)(j) due to health and safety risks. An individually-based limitation is based on specific assessed need and only implemented with the informed consent of the resident or, as applicable, the legal representative of the resident, as described in OAR 411-004-0040.

(48) "Informed Consent" means:

(a) Options, risks, and benefits have been explained to the individual and, as applicable the legal representative of the individual, in a manner that the individual, and as applicable, the representative, comprehends; and

(b) The individual or, as applicable, the legal representative of the individual, consents to a person-centered service plan of action, including any individually-based limitations to the rules, before implementation of the initial or updated person-centered service plan or any individually-based limitation.

(49) "Initial Point of Safety" means a designated area that has unobstructed direct access to a public sidewalk or street located not less than 25 feet away from an AFH where occupants of the home evacuate to in the event of an emergency and for the purpose of conducting evacuation drills.

(50) "Investigative Authority" means the Office of Adult Abuse Prevention and Investigation (OAAPI), local Department offices, and Area Agencies on Aging that contract with the Department to provide adult protective services to adults who are older or adults with physical, mental, or developmental disabilities.

(51) "Legal Representative" means a person who has the legal authority to act for an individual. The legal representative only has authority to act within the scope and limits of their authority as designated by the court or other agreement.

(a) Legal representatives acting outside of their authority or scope must meet the definition of designated representative.

(52) "Level" means the designation of ventilator-assisted care assigned to an AFH license based on the qualifications of the licensee, administrator, resident manager, floating resident manager, and shift caregivers, as applicable.

(53) “LGBTQIA2S+” means lesbian, gay, bisexual, transgender, queer, intersex, asexual, Two Spirit, nonbinary or other minority gender identity or sexual orientation. These terms are defined below:

(a) “Lesbian” means the sexual orientation of a person who is female, feminine or nonbinary and who is physically, romantically or emotionally attracted to other women. Some lesbians may prefer to identify as gay, a gay woman, queer or in other ways.

(b) “Gay” means the sexual orientation of a person attracted to people of the same gender. Although often used as an umbrella term, it is used more specifically to describe men attracted to men.

(c) “Bisexual” means a person who has the potential to be physically, romantically and/or emotionally attracted to people of more than one gender, not necessarily at the same time, in the same way or to the same degree.

(d) “Transgender” means having a gender identity or gender expression that differs from the sex one was assigned at birth, regardless of whether one has undergone or is in the process of undergoing gender-affirming care. Being transgender does not imply any specific sexual orientation. Therefore, transgender people may identify as straight, gay, lesbian, bisexual, etc.

(e) “Queer” means people who do not identify as exclusively straight or a person who has non-binary or gender-expansive identities and is often used as a catch-all to refer to the LGBTQIA2S+ population as a whole. This term was previously used as a slur but has been reclaimed by many parts of the LGBTQIA2S+ movement. It can also include transgender people who identify as male or female. The term should only be used to refer to a specific person if that person self-identifies as queer.

(f) “Intersex” means someone born with a variety of differences in their sex traits and reproductive anatomy. Intersex traits greatly vary, including differences in, but not limited to, hormone production and reproductive anatomy.

(g) “Asexual” or “Ace” means a complete or partial lack of sexual attraction or lack of interest in sexual activity with others. Asexuality exists on a spectrum, and asexual people may experience no, little or conditional sexual attraction. Many people who are asexual still identify with a specific romantic orientation.

(h) “2S” or “Two-Spirit” means a term used within some Indigenous communities, encompassing cultural, spiritual, sexual and gender identity. The term reflects complex indigenous understandings of gender roles, spirituality, and the long history of sexual and gender diversity in Indigenous cultures. The definition and common use of the term two-spirit may vary among Tribes and Tribal communities.

(i) The “+” means all other identities and expressions of gender, romantic and sexual orientation, including minority gender identities.

(j) “Nonbinary” means a person who does not identify exclusively as a man or a woman. Nonbinary people may identify as being both a man and a woman, somewhere in between, or as falling completely outside these categories. While many also identify as transgender, not all nonbinary people do. Nonbinary can also be used as an umbrella term encompassing identities such as agender, bigender, genderqueer or gender-fluid.

(54) "Licensed Health Care Professional" means a person who possesses a professional medical license that is valid in Oregon. Examples include, but are not limited to, a registered nurse (RN), nurse practitioner (NP), licensed practical nurse (LPN), medical doctor (MD), osteopathic physician (DO), respiratory therapist (RT), physical therapist (PT), physician assistant (PA), or occupational therapist (OT).

(55) "Licensee" means the applicant to whom an AFH license has been issued. "Licensee" is synonymous with "Co-Licensee" in these rules.

(56) "Limited Adult Foster Home" means a home that provides care and services for compensation to a specific individual who is unrelated to the licensee, but with whom the licensee has an established relationship of no less than one year.

(57) "Liquid Resource" means cash or those assets that may readily be converted to cash, such as a life insurance policy that has a cash value, stock certificates, or a guaranteed line of credit from a financial institution.

(58) "Local Licensing Authority" or "LLA" means the local Department offices and Area Agencies on Aging that contract with the Department to perform specific functions of the AFH licensing process.

(59) "Management agreement" means a written, executed agreement between the licensee and another individual or entity regarding the provision of operational services on behalf of the licensee.

(60) “Negligible Harm” means an adverse event or situation resulting in consequences so minor that no regulatory response, remediation, or corrective action is required.

(61) "Nursing Care" means the practice of nursing by a licensed nurse, including tasks and functions relating to the provision of "nursing care" that are taught or delegated under specified conditions by a registered nurse to a person other than licensed nursing personnel, as governed by ORS chapter 678 and rules adopted by the OSBN in OAR chapter 851.

(62) "Occupant" means any person residing in or using the facilities of an AFH, including residents, licensees, resident manager, floating resident manager, friends or family members, adult day services individuals, and room and board tenants.

(63) "OHA" Means the Oregon Health Authority.

(64) "Older" means any person at least 65 years of age.

(65) "Ombudsman" means the Oregon Long-Term Care Ombudsman (LTCO) or a designee appointee that serves as an LTCO representative to investigate and resolve complaints on behalf of AFH residents.

(66) "Owner" is synonymous with "Licensee" as defined in this rule.

(67) "Ownership Interest" means the possession of equity in the capital, stock, or profits of an AFH.

(68) "Person" has the same meaning as set forth in ORS 174.100(6).

(69) "Person-Centered Service Plan" has the meaning given in OAR chapter 411, division 004.

(a) FOR MEDICAID CONSUMERS. The person-centered service plan coordinator completes the person-centered service plan.

(b) FOR NON-MEDICAID CONSUMERS. The person-centered service plan may be completed by the resident, and as applicable, the representative of the resident, and others as chosen by the resident. The licensee may assist non-Medicaid residents in developing person-centered service plans when no alternative resources are available. The elements of the resident's person-centered service plan may be incorporated into the resident's care plan.

(70) "Person-Centered Service Plan Coordinator" means case managers, services coordinators, personal agents, and other people designated by ODHS or OHA to provide case management services or person-centered service planning for and with individuals.

(71) "Prescribing Practitioner" means a physician, nurse practitioner, physician assistant, chiropractor, dentist, ophthalmologist, or other healthcare practitioner with prescribing authority.

(72) "Primary Caregiver" means one or any combination of a licensee, administrator, resident manager, or shift caregivers who personally provide care and services, and safeguards the health and safety of residents a minimum of five 24-hour days per week.

(73) "Primary Care Provider" means a physician, physician's assistant or nurse practitioner that provides regular and continuous health care services.

(74) "PRN" is a Latin term (pro re nata), means "as needed." It describes medications and treatments that have been ordered by a prescribing practitioner to be administered as needed when the resident exhibits or expresses signs or symptoms related to the reason the medication was ordered.

(75) "Provisional License" means a 60-day license issued in an emergent situation when a licensee is no longer overseeing the operation of an AFH. A provisional license is issued to a qualified person who meets the standards of OAR 411-049-0125 and OAR 411-049-0105(9) except for completing the training and testing requirements. (See OAR 411-049-0105(14)(b)).

(76) "Psychotropic Medication" means any drug that affects the brain activities associated with mental processes and behavior. These drugs include, but are not limited to, drugs in the following categories:

(a) Anti-psychotic.

(b) Anti-depressant.

(d) Hypnotic.

(77) "Qualified Caregiver" means an individual who has fully satisfied and maintained the requirements to be a licensee, administrator, resident manager, floating resident manager, shift caregiver or substitute caregiver. (See "Caregiver").

(78) "QED" means qualified entity designee as defined in OAR 407-007-0210. A QED may be a licensee who is approved by the Department's Background Check Unit to handle background checks on behalf of the LLA.

(79) "Relative" means those persons identified as family members as defined in this rule.

(80) "Representative" means "Designated Representative" and "Legal Representative" as defined in these rules, unless otherwise stated.

(81) "Reside" means for a person to live in an AFH for a permanent or extended period of time. For the purpose of a background check, a person is considered to "reside" in a home if the person's visit is four weeks or greater.

(82) "Residency Agreement" or "Agreement" means the written and legally enforceable agreement between an AFH licensee and an individual receiving Home and Community Based Services (HCBS), or representative of the individual, in a licensee owned, controlled, or operated setting. The Residency Agreement identifies the policies of the home, services to be provided, and the rights and responsibilities of the individual, and the licensee. The Residency Agreement provides the individual protection from eviction substantially equivalent to landlord-tenant laws.

(83) "Resident" means an adult who is at least 65 years of age, or an adult with a physical disability who is receiving room and board and care and services in an AFH on a 24-hour day basis in exchange for compensation.

(84) "Resident Manager" means an employee of the licensee, approved by the LLA, who lives in the AFH, and is directly responsible for the care of the residents. Resident Manager is not synonymous with administrator.

(85) "Resident Rights" or "Rights" means civil, legal, or human rights, including, but not limited to, those rights listed in the Adult Foster Home Resident's Bill of Rights and HCBS freedoms. (See ORS 443.739 and OAR 411-051-0105).

(86) "Residential Care" means the provision of care on a 24-hour day basis.

(87) "Restraint" means restraint as defined in OAR 411-004-0010(19):

(a) Physical restraints are any manual method, or physical or mechanical device, material, or equipment attached to or adjacent to the resident's body that the resident cannot remove easily, which restricts freedom of movement or normal access of the resident to the resident's body. Any manual method includes physically restraining a person by manually holding the person in place.

(b) Chemical restraints are any substance or drug used for discipline or convenience that has the effect of restricting the individual's freedom of movement or behavior and is not used to treat the resident's medical or psychiatric condition.

(88) "Room and Board" means receiving compensation for the provision of meals, a place to sleep, laundry, and housekeeping to adults who are older or adults with physical disabilities and who do not need assistance with activities of daily living. Room and board facilities for two or more persons are required to register with the Department under the rules in OAR chapter 411, division 068, unless registered with the local authority having jurisdiction. AFHs with room and board tenants are not subject to OAR chapter 411, division 068.

(89) "Safety, Oversight and Quality Unit" or "SOQ" is a program within the Department's Aging and People with Disabilities office.

(90) "Screening" means the evaluation process used to identify an individual's ability to perform activities of daily living and address health and safety concerns.

(91) "Self-Administration of Medication" means the resident identifies the medication, the time and manner of administration, and places the medication internally or externally on his or her own body without assistance.

(92) "Self-Preservation" means the ability of a resident to respond to an alarm or emergent situation without additional cues and reach a point of safety without assistance.

(93) "Services" mean activities that help the residents develop skills to increase or maintain the resident's level of functioning or assist the residents to perform personal care, activities of daily living, or individual social activities.

(94) “Sexual orientation” means romantic or sexual attraction, or a lack of romantic or sexual attraction, to other people.

(95) "Shift Caregivers" mean caregivers who are responsible for providing care for regularly scheduled periods of time, including, but not limited to, 8 or 12 hours per day or night, in homes where there is no licensee or resident manager living in the home.

(96) "Subject Individual" has the meaning as given in OAR 407-007-0210, and means any person 16 years of age or older, including:

(a) All licensed AFH licensees and license applicants;

(b) All persons intending to work in, or currently working in an AFH, including, but not limited to, caregivers, including trainees, and licensed healthcare workers when employed by or contracted with the licensee or facility;

(c) Volunteers on the home's premises who provide services for, or who have access to, any resident, or any resident's funds, belongings, or confidential information; and

(d) Occupants, excluding residents, residing in or on the premises of a proposed or currently licensed AFH, including:

(A) Household members;

(B) Room and board tenants; and

(e) "Subject Individual" does not apply to:

(A) Persons under 16 years of age.

(B) Residents of the AFH or the resident's visitors.

(i) Regular access to the home for meals;

(ii) Regular use of the AFH's appliances or facilities; or

(iii) Unsupervised access to the residents or the residents' personal property.

(D) A person providing services to the residents who is employed by a private business not regulated by the Department.

(97) "Substantial Compliance" means a level of compliance with federal and state law and with the rules of the licensing agency such that any identified deficiencies pose a risk of no more than negligible harm to the health or safety of residents.

(98) "Substitute Caregiver" means any person other than the licensee, resident manager, floating resident manager, or shift caregiver who provides care and services in an AFH under the jurisdiction of the Department.

(99) “Succession Plan” means the licensee or administrator’s written plan addressing coverage, continuance of care and services for residents, and AFH operations should the licensee or administrator be unable to fulfill their duties due to illness, death, or other unexpected absence. The Department’s Back-up Provider Agreement form (APD 0350) may be used for this purpose. (See “Back-up Provider Agreement”).

(100) "Tenant" means any individual who is residing in an AFH who receives services, such as meal preparation, laundry, and housekeeping.

(101) "Tenancy Agreement" means a written and legally enforceable agreement between an AFH licensee and an adult who is older or an adult with physical disabilities who resides in the home and does not require assistance with any activity of daily living. The agreement specifies the terms and conditions of a room and board residency in the home.

(102) "These Rules" mean the rules in OAR chapter 411, division 49, 50, 51, and 52.

(103) “Transgender” means having a gender identity or gender expression that differs from the sex one was assigned at birth, regardless of whether one has undergone or is in the process of undergoing gender-affirming care. Being transgender does not imply any specific sexual orientation. Therefore, transgender people may identify as straight, gay, lesbian, bisexual, etc.

(104) "Variance" means an exception from a regulation or provision of these rules in accordance with OAR 411-049-0160.

(105) "Ventilator-Assisted Care" means the provision of mechanical assistance to replace spontaneous breathing. Devices used include, but are not limited to, mechanical ventilators, manual ventilators, and positive airway pressure ventilators.

(106) "Violation" means an area of non-compliance with these rules. "Violation" is synonymous with "Deficiency".

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 441.122, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775 & 443.790
Statutes/Other Implemented: ORS 106.010, 409.050, 410.070, 413.085, 441.111, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 20-2026, temporary amend filed 07/29/2026, effective 08/01/2026 through 01/27/2027
APD 57-2024, amend filed 09/23/2024, effective 09/25/2024
APD 13-2024, temporary amend filed 03/28/2024, effective 04/01/2024 through 09/27/2024
APD 61-2021, amend filed 12/23/2021, effective 01/01/2022
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-049-0105 Temporary rule language in effect until 01/27/2027. License

(1) REQUIRED. Any facility that meets the definition of an AFH or limited AFH in OAR 411-049-0102 must apply for and obtain a license from the LLA before providing care to any resident for compensation.

(2) A person or entity may not represent themselves as operating an AFH or accept placement of a resident without being licensed as an AFH.

(3) DURATION.

(a) A license is valid for one year unless revoked or suspended by the Department; or

(b) A license may be valid for two years if the LLA determines the licensee, or administrator has demonstrated substantial compliance for three consecutive years.

(A) Eligibility to extend the renewal period to two years must be documented and maintained by the LLA.

(B) To be eligible for the two-year license duration, the licensee or administrator must:

(i) Be licensed for a minimum of three years.

(ii) Not have any substantiated final orders for level three or four abuse within the last three years.

(iii) Not have any conditions placed on the license for a pattern of deficiencies, as determined by the LLA and the Department.

(C) The licensee will be returned to a one-year renewal period at any time the Department determines the home is no longer in substantial compliance.

(4) When the Department reviews a license and determines that the convenience of both the licensee and the Department will be served, a license period may be changed to match the renewal schedule of another license held by the same licensee. The request for a schedule change may be made by either the Department or the licensee. No license period may extend beyond the approved duration based on this section of the rule.

(5) NON-TRANSFERABLE LICENSE AND SALE, LEASE OR CHANGE OF OWNERSHIP REQUIREMENTS. A change of ownership of an AFH requires both a new license application and a new license.

(a) A license is not transferable and does not apply to any location or person other than the location and person indicated on the license obtained from the LLA.

(b) The licensee must inform real estate agents, prospective buyers, lessees, and transferees in all written communication, including advertising and disclosure statements, that the license to operate the AFH is not transferable and the licensee must refer them to the LLA for information about licensing.

(c) When a home is to be sold or otherwise transferred or conveyed to another person who intends to operate the home as an AFH, that person must apply for and obtain a license from the LLA before the transfer of operation of the home.

(d) Prior to operation of the AFH, the new owner:

(A) Must have an approved license from the Department before transfer of ownership.

(B) Must not begin operation of the AFH until the Department has issued the license.

(C) Must conduct pre-admission screenings according to OAR 411-051-0110(1)(a)(A) - (C) for residents wishing to remain in the AFH.

(e) NOTICE OF CHANGE OF OWNERSHIP.

(A) The licensee must promptly notify the LLA in writing about the licensee's intent to close or convey the AFH to another person. The licensee must provide written notice to the residents and the residents' representatives and case managers, as applicable, according to OAR 411-050-0760(3)(e).

(B) The licensee must inform a person intending to assume operation of an existing AFH that the residents currently residing in the home must be given at least 30 calendar days' written notice of the licensee's intent to close the AFH to convey the home to another person.

(i) Names of the present owner and prospective owner.

(ii) Name and address of the AFH for which the ownership is being changed.

(iii) Date of proposed change.

(iv) Any change in the house policies or operations that could impact a resident's ability to continue to live in the home.

(v) The licensee must remain licensed and responsible for the operation of the home and care of the residents in accordance with these rules until the home is closed and the residents have been relocated, or the home is conveyed to a new licensee who is licensed by the LLA at a level appropriate to the care needs of the residents in the home.

(f) PRIORITY PROCESSING. To prevent disruption to residents, current licensees may request in writing that the Department give priority processing to an applicant seeking to be licensed as the new licensee for the AFH.

(6) CAPACITY. Notwithstanding limited AFHs, residents must be limited to no more than five adults who require care and are unrelated to the licensee and resident manager by blood, marriage, or adoption.

(a) The number of residents permitted to reside in an AFH is determined by the ability of the staff to meet the care needs of the residents, the fire and life safety standards for evacuation, and compliance with the facility standards of these rules.

(b) The licensee must demonstrate, to the LLA's satisfaction, the ability to meet the needs of the residents, in addition to caring for any children or others beyond the license capacity of the AFH.

(A) The ratio of at least one caregiver per five residents, including any adult day services individuals and others requiring care or supervision except as allowed under subsection (d) of this rule section.

(B) Children over the age of five have a bedroom available that is separate from the child's parents.

(d) When a family member who is not a consumer requires care in a home, and when the licensee is the primary live-in caregiver, a maximum capacity of five unrelated residents are allowed if the following criteria are met:

(A) The licensee must be able to demonstrate the ability to evacuate all occupants from the AFH as specified in these rules (See OAR 411-050-0725(3)).

(B) The licensee must have sufficient, qualified staff and demonstrate the ability to provide appropriate care for all residents (See OAR 411-050-0730).

(C) There must be an additional 40 square feet of common living space for each person above the five residents as specified in these rules (See OAR 411-050-0715).

(D) Bathrooms and bedrooms must meet the requirements of OAR 411-050-0715.

(E) The care needs of adult day services individuals must be within the classification of the license and any conditions imposed on the license.

(F) The well-being of the household, including any children or other family members, shall not be jeopardized.

(e) When a licensee's family member is a Medicaid consumer, the family member may remain in the home as one of the residents within the home's licensed capacity. Resident records must be maintained for the family member according to OAR 411-050-0750.

(7) CHANGE IN CAPACITY. To request a change to the maximum capacity of a licensed home at any time other than the license renewal period, the licensee shall submit to the LLA a written request using the Department's form, DHS 0749, to amend the licensee's previous application for a license.

(a) The complete request will include:

(A) All the required information and documentation, as applicable, to demonstrate the applicant meets the standards for the requested capacity according to these rules; and

(B) A $20 non-refundable fee for each additional resident bed requested.

(b) Within 60 calendar days' receipt of the complete written request, the LLA must investigate the information provided and must:

(A) Approve the request and issue an amended license with the requested capacity; or

(B) Forward a request to deny the applicant's change in capacity to the Safety, Oversight, and Quality Unit, unless the applicant submits written notification to withdraw the requested change in capacity.

(i) If the request is denied, the Department shall provide the applicant with notice and an opportunity for a contested case hearing pursuant to ORS 183. The notice shall state the reasons for the denial and shall be served personally upon the applicant or by certified or registered mail.

(ii) Any request for a contested case hearing must be submitted to the Department, in writing, by the applicant within 10 days of service.

(8) VENTILATOR-ASSISTED CARE. The Department may approve a licensee to care for residents requiring ventilator-assisted care. The licensee, administrator, resident manager, floating resident manager, or shift caregivers, as applicable, must meet the criteria for a Class 3 home according to section (9) of this rule, and comply with the additional requirements for AFHs serving residents requiring ventilator-assisted care outlined in OAR 411-049-0155.

(9) CLASSIFICATION. The LLA shall issue a Class 1, Class 2, or Class 3 AFH license only if the qualifications of the applicant, administrator, resident manager, floating resident manager, and shift caregivers, as applicable, fulfill the classification requirements of these rules.

(a) After receipt of the completed application materials, including the non-refundable fee, the LLA must investigate the information submitted, including any pertinent information received from outside sources.

(b) The LLA shall not issue a license if unsatisfactory references or a history of substantial non-compliance of the applicant within the last 24 months are verified.

(c) The LLA may issue a Class 1 license if the applicant, and other caregivers as applicable, complete the training requirements outlined in OAR 411-049-0125.

(d) The LLA may issue a Class 2 license if the applicant, and other caregivers as applicable, complete the requirements outlined in OAR 411-049-0125. In addition, these caregivers must each have the equivalent of two years of full-time experience providing direct care to adults who are older or adults with physical disabilities.

(e) The LLA may issue a Class 3 license if the applicant, and other caregivers as applicable, complete the training requirements outlined in OAR 411-049-0125 and have a current license as a health care professional in Oregon or possess the following:

(A) Have the equivalent of three years of full-time experience providing direct care to adults who are older or adults with physical disabilities and who require full assistance in four or more activities of daily living.

(B) Have references satisfactory to the Department. The applicant must submit current contact information from at least two licensed health care professionals who have direct knowledge of the applicant's ability and experience as a caregiver; or

(10) CHANGE IN CLASSIFICATION. To request a change in the classification of a licensed home at any time other than the license renewal period, the licensee shall submit a written request to the LLA, using the Department's form DHS 0748, and DHS 0748A as applicable, to amend the licensee's previous application for a license.

(a) The complete request includes all the required information and documentation, as applicable, to demonstrate the applicant meets the standards for the requested classification according to these rules.

(b) Within 60 calendar days' receipt of the complete written request, the LLA will investigate the information provided and shall:

(A) Approve the applicant's request and issue an amended license with the requested classification; or

(B) Forward a request to deny the applicant's request, to the Safety, Oversight, and Quality Unit, unless the applicant submits written notification to withdraw the requested change in classification.

(i) If the request is denied, the Department shall provide the applicant with notice and an opportunity for a contested case hearing pursuant to ORS 183. The Notice shall state the reasons for the denial and shall be served personally upon the applicant or by certified or registered mail.

(ii) Any request for a contested case hearing must be submitted to the Department, in writing, by the applicant within 10 days of service.

(11) A licensee or administrator may only admit or continue to care for residents whose impairment levels are within the classification of the licensed home. A licensee with a:

(a) Class 1 license may only admit residents who require assistance in no more than four activities of daily living.

(b) Class 2 license may provide care for residents who require assistance in all activities of daily living but require full assistance in no more than three activities of daily living.

(c) Class 3 license may provide care for residents who require full assistance in four or more activities of daily living, but only one resident who requires bed-care or full assistance with all activities of daily living, not including cognition or behavior.

(12) CLASSIFICATION VARIANCE. A licensee or administrator must request, in writing, a variance from the LLA if:

(a) A new resident wishes to be admitted whose impairment level exceeds the license classification.

(b) A current resident becomes more impaired, exceeding the license classification.

(c) There is more than one resident in the home who requires full bed-care or full assistance with all activities of daily living, not including cognition or behavior.

(13) The LLA may grant a variance that allows a resident to be admitted or remain in the AFH. The LLA must respond in writing within 30 calendar days after receipt of the licensee’s or administrator's written variance request. The licensee or administrator must prove the following criteria are met by clear and convincing evidence:

(a) It is the choice of the resident to reside in the home.

(b) The licensee or administrator can provide appropriate care and service to the resident in addition to meeting the care and service needs of the other residents.

(d) Outside resources are available and obtained to meet the resident's care needs.

(e) The variance shall not jeopardize the care, health, safety, or welfare of the residents.

(f) The licensee or administrator's ability to demonstrate how all occupants shall be safely evacuated in three minutes or less.

(14) LICENSE TYPES.

(a) LIMITED AFH. Any home that meets the definition of a limited AFH in OAR 411-049-0102 must apply for and obtain a limited license from the LLA before providing care. The license for a limited AFH is limited to the care of a specific resident and the licensee must make no other admissions. The resident receiving care is named on the license.

(b) PROVISIONAL. Notwithstanding any other provision of this rule or ORS 443.725 or 443.738, the LLA may issue a 60-day provisional license to a qualified person. A provisional license may be issued if the LLA determines it is in the best interests of the residents currently residing in the home, and any of the following exist:

(A) An emergent situation exists after receiving notification that a licensee is no longer overseeing the operation of an AFH.

(B) A new, qualified applicant has submitted an application and bed fee for a license to operate a currently licensed home. The applicant has demonstrated a good faith effort to submit a timely and complete application, but the application process cannot be completed before the expiration date of the current license. A person is considered qualified for a provisional license if he or she:

(i) Is at least 21 years of age.

(ii) Has the necessary experience working with adults who are older or adults with physical disabilities to potentially qualify for the license classification of the home.

(iii) Fully understands and has the ability to meet the residents' care needs.

(iv) Meets the requirements of a substitute caregiver as described in OAR 411-049-0125(9).

(15) DUAL LICENSES. A licensee subject to these rules may not have more than one license type at the same AFH. Examples of other license types may include, but are not limited to, child care, foster care for children, and a care facility for individuals with intellectual or developmental disabilities or mental health needs.

(16) LICENSE CONTENTS. The license is completed in full and specifies the type of license granted.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738 & 443.880
Statutes/Other Implemented: ORS 197.660 - 197.670, 409.050, 410.070, 413.085, 441.373, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 20-2026, temporary amend filed 07/29/2026, effective 08/01/2026 through 01/27/2027
APD 61-2021, amend filed 12/23/2021, effective 01/01/2022
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-049-0110 Adult Day Services

(1) An AFH licensee may request authorization to provide adult day services to a specific number of individuals. The licensee may not provide adult day services without first receiving written authorization from the LLA.

(2) The care needs of adult day services individuals must be within the classification of the license and any conditions imposed.

(3) A copy of the current house policies, as identified in the current Residency Agreement, and the current Resident's Bill of Rights and Freedoms, signed and dated by the resident or the resident's representative.

(4) The licensee or administrator must have arrangements for adult day services individuals to sleep in areas other than a resident's bed, a resident's room, or space designated as common use, in accordance with OAR 411-050-0715.

(a) Adult day services individuals may use a cot or rollaway bed if bedroom space is available that meets the requirements of OAR 411-50-0715(9)(c).

(b) A resident's bed may not be used by an adult day services individual.

(5) Licensees that provide adult day services to individuals must remain in compliance with OAR 411-049-0105(6) in addition to the other requirements in these rules including, but not limited to, facility standards addressing:

(a) Common use areas, OAR 411-050-0715(7).

(b) Bathrooms, OAR 411-050-0715(8).

(6) Before the admission of each adult day services individual, the licensee or administrator must:

(a) Conduct and document a screening as described in OAR 411-051-0110.

(b) Obtain current medical professional orders as described in OAR 411-051-0130(2), if medications are to be administered and the necessary delegations, as applicable.

(c) Develop and maintain a current, written medication administration record (MAR) as described in OAR 411-051-0130(6), if medications are to be administered.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730 & 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 443.001 - 443.004, 443.705 - 443.825 & 443.875, 443.991
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-049-0115 Room and Board

(1) Licensee may request authorization to provide room and board services to a specific number of tenants according to these rules prior to admission. If room and board tenants are in the home, the licensee must ensure each tenant has:

(a) An approved background check in accordance with OAR 411-049-0120.

(b) A tenancy agreement.

(d) A resident may choose to have a room and board tenant, such as the resident's spouse, as a roommate if the bedroom is approved for shared occupancy. In addition:

(A) Verification of sufficient square footage and written authorization from the LLA is required in advance of the tenant's admission.

(B) If the tenant placement would take an approved resident's bed, the licensee must also submit a request to change the home's license capacity according to OAR 411-049-0105(6).

(2) AFH licensees that provide room and board services to individuals must remain in compliance with OAR 411-050-0715 in addition to the other requirements in these rules including, but not limited to:

(a) Common use areas, OAR 411-050-0715(7).

(b) Bathrooms, OAR 411-050-0715(8).

(d) Evacuations, OAR 411-050-0725.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730 & 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 443.001 - 443.004, 443.705 - 443.825 & 443.875, 443.991
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-049-0120 Temporary rule language in effect until 01/27/2027. Background Check

(1) All subject individuals (SI) must have an approved background check, which for non-licensees or non-licensee applicants, may include an approved preliminary fitness determination, prior to operating, working in, training in, or living in an AFH.

(a) Licensees must maintain documentation of preliminary and final fitness determinations with the home's facility records in accordance with these rules and the background check rules.

(b) Verification may include printed or electronic documentation, which must be readily accessible upon request.

(2) The background check may not to be used as a screening tool for hiring. New employees may be offered a position contingent upon passing the background check.

(3) A new background check must be completed:

(a) Every three years; or

(b) If the Department has reason to believe a new background check is needed.

(4) If the SI is approved and in good standing on the Background Check Unit's registry pursuant to OAR 407-007-0600 to 407-007-0640, three-year renewals and changes in position may be handled through the registry.

(5) An SI may be hired on a preliminary basis following completion of a preliminary fitness determination according to the background check rules. An SI who is hired on a preliminary basis shall be actively supervised at all times they are on duty by a qualified caregiver who has been approved without restrictions. Active supervision means a qualified caregiver must:

(a) Be within line-of-sight and within hearing of the SI both in and on the AFH premises.

(b) Know where the SI is and what the SI is doing.

(6) PORTABILITY OF BACKGROUND CHECK APPROVAL. A subject individual may be approved to work in multiple homes in Oregon.

(7) On or after July 28, 2009, no licensee, licensee applicant, or employee of the licensee who has been convicted of any of the disqualifying crimes listed in OAR 407-007-0275 shall be approved by the Department to provide care and services in an AFH. This rule does not apply to:

(a) An employee of the licensee who was hired prior to July 28, 2009, who continues employment in the same position with the same licensee; or

(b) Any subject individual who is an occupant of the home, but is neither a licensee nor a caregiver.

(8) All subject individuals must self-report to the licensee any:

(a) Potentially disqualifying condition listed in OAR 125-007-0270.

(b) Disqualifying condition as described in OAR 407-007-0275.

(d) The licensee must notify the Department or LLA within 24 hours if any subject individual has a disqualifying or potentially disqualifying condition.

(9) The Department must provide for the expedited completion of a background check for the state of Oregon when requested by a licensee or administrator because of a demonstrated immediate staffing need. When a background check requires fingerprints or a weigh test, an expedited check may not be conducted until all required information is submitted, according to the background check rules.

(10) If a licensee's background check is denied by the Department, the licensee may continue to operate and work in the home pending potential appeal and a final order, except as stated in (11) of this rule.

(11) The Department may take immediate action if there is reason to believe any resident's health, safety, or welfare is at risk. Such action may include, but is not limited to, conditions on the license or suspension of the license. If the final order upholds the Department's decision to deny the background check, the Department shall pursue the denial, revocation, non-renewal, or suspension of the AFH license.

History

Statutory/Other Authority: ORS 181A.200, 409.050, 410.070, 413.085, 443.001, 443.004, 443.730, 443.735, 443.767, 443.775 & 443.790
Statutes/Other Implemented: ORS 181A.200, 409.050, 410.070, 413.085, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 20-2026, temporary amend filed 07/29/2026, effective 08/01/2026 through 01/27/2027
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-049-0125 Temporary rule language in effect until 01/27/2027. Caregiver Qualifications

(1) LICENSEE AND ADMINISTRATOR QUALIFICATIONS. An AFH licensee or administrator must:

(a) Live in the home that is to be licensed at least five 24-hour days per week and function as the primary caregiver as defined in OAR 411-049-0102 unless:

(A) There is, or shall be upon licensure, an approved resident manager who lives in the home and works five days and nights per week as the primary caregiver;

(B) There are, or shall be upon licensure, two approved primary caregivers who live in the home and work three and four days and nights per week respectively; or

(C) The home is staffed 24 hours a day at least five days a week with a combination of approved shift caregivers. (See OAR 411-049-0125(6)).

(b) Subsections (a)(A), through (a)(C) of this section are not intended to prohibit the occasional and temporary absence of the primary caregivers from the AFH.

(d) Possess physical health, mental health, good judgment, and good personal character, including truthfulness, determined necessary by the Department to provide 24-hour care for adults who are older or adults with physical disabilities.

(e) An applicant and licensee must have a statement from a physician, nurse practitioner, or physician assistant indicating that the applicant or licensee is physically, cognitively, and emotionally capable of providing care to residents. An applicant or licensee with documented history or substantiated complaints of substance abuse or mental illness must provide evidence satisfactory to the Department of successful treatment, rehabilitation, or references regarding current condition.

(f) Have an approved background check in accordance with OAR 411-049-0120 and maintain that approval as required.

(g) Be proficient in the English language and demonstrate the ability to comprehend and communicate in English orally and in writing with the residents and the residents' family members or representatives, emergency personnel (e.g., emergency operator, law enforcement, paramedics, and fire fighters), licensed health care professionals, case managers, DHS and LLA staff, and others involved in the care of the residents.

(h) Be able to respond appropriately to emergency situations at all times.

(i) Have a clear understanding of their responsibilities, knowledge of the residents' care plans, and the ability to provide the care specified for each resident; and not be listed on either of the Exclusion Lists.

(2) LICENSEE AND ADMINISTRATOR TRAINING REQUIREMENTS. For licensees designated as corporate entities, at least one administrator must meet the training requirements described in (2)(a) – (2)(g) of this rule in addition to obtaining a variance as outlined in OAR 411-049-0160(2)(c)(C).

(a) Licensees and administrators must have the education, experience, and training to meet the requirements of the requested classification of the home. (See OAR 411-049-0125).

(b) A potential applicant or applicant must complete the following training requirements prior to obtaining a license:

(A) Attend an ODHS-approved orientation program conducted by the LLA responsible for the licensing of the proposed AFH.

(B) Attend the Department's Ensuring Quality Care Course and pass the examination to meet application requirements for licensure.

(i) Applicants who fail the first examination may take the examination a second time; however, successful completion of the examination must take place within 90 calendar days of the end of the Department's Ensuring Quality Care Course.

(ii) Potential applicants and applicants who fail a second examination must retake the Department's Ensuring Quality Care Course prior to repeating the examination.

(D) Have and maintain current CPR and First Aid certification.

(i) Accepted CPR and First Aid courses must be provided by or meet the standards of the American Heart Association or the American Red Cross.

(ii) CPR or First Aid courses conducted online are only accepted by the Department when an in-person skills competency check is conducted by a qualified instructor meeting the standards of the American Heart Association, the American Red Cross.

(c) All caregivers must complete dementia training approved by the Department before providing direct care as mandated by ORS 443.743. The training shall be based on current standards in dementia care, and shall include:

(A) Education on the dementia disease process, including the progression of the disease, memory loss, and psychiatric and behavioral symptoms.

(B) Techniques for understanding and managing behavioral symptoms, including, but not limited to reducing the use of psychotropic medications for nonstandard uses.

(D) Specific aspects of dementia care and ensuring the safety of residents with dementia, including, but not limited to, how to:

(i) Address pain.

(ii) Provide food and fluids.

(iii) Prevent wandering and elopement.

(iv) Use a person-centered approach.

(d) Licensees, administrators, resident managers, floating resident managers, or shift caregivers must complete the required dementia training as mandated by ORS 443.743.

(e) Licensees, administrators, resident managers, floating resident managers, shift caregivers, and substitute caregivers must complete the Department-approved LGBTQIA2S+ and Human Immunodeficiency Virus (HIV) training as mandated by ORS 441.111 to 441.122. The Department-approved training shall address the elements described in paragraph (11)(c) of this rule. The following dates apply to the initial LGBTQIA2S+ and HIV trainings:

(A) Effective December 31, 2024, all staff must have completed the required training. All new staff, hired on or after January 1, 2025, must complete the required training prior to beginning job responsibilities.

(B) The Department-approved LGBTQIA2S+ and HIV trainings shall address the elements described in paragraph (11) of this rule.

(f) HOME AND COMMUNITY-BASED SERVICES (HCBS) TRAINING. All caregivers, including licensees, administrators, resident managers, floating resident managers, shift caregivers or substitute caregivers are required to complete the Department-approved HCBS training, as provided below:

(A) Effective March 31, 2024, all caregivers must have completed the required training.

(B) All new caregivers, hired on or after April 1, 2024, must complete the required training prior to beginning job responsibilities.

(g) CAREGIVER ORIENTATION. Prior to providing care to any resident, all caregivers must be oriented to the home and to the residents by the licensee or other qualified primary caregiver. Orientation must be clearly documented in the facility records. Orientation includes, but is not limited to:

(A) Location of any fire extinguishers.

(B) Demonstration of evacuation procedures.

(D) Location of resident records.

(E) Location of telephone numbers for the residents' physicians, the licensee, and other emergency contacts.

(F) Location of medications and the key for the medication cabinet.

(G) Introduction to residents.

(H) Instructions for caring for each resident.

(I) How to administer medications properly.

(J) How to document the resident's medication administration record and other resident records.

(K) Making arrangements with a registered nurse to delegate any nursing procedure that requires delegation prior to the caregiver performing that task.

(L) Understanding the home's policies and procedures related to Advance Directives. (See OAR 411-050-0750).

(3) FINANCIAL REQUIREMENTS. A licensee applicant and licensee must have the financial ability and maintain sufficient liquid resources to pay the operating costs of the AFH for at least two months without solely relying on potential resident income.

(a) If an initial license applicant is unable to demonstrate the financial ability and resources required by this section, the Department may require the applicant to furnish a financial guarantee, such as a line of credit or guaranteed loan, to fulfill the requirements of this rule.

(b) If at any time there is reason to believe an applicant or licensee may not have sufficient financial resources to operate the home in compliance with these rules, the LLA may request additional documentation, which may include verification of the applicant's or licensee's ability to readily access the requested funds. Circumstances that may prompt the request of additional financial information include, but are not limited to, reports of insufficient food, inadequate heat, or failure to pay employees, utilities, rent, or mortgage. Additional documentation of financial resources may include, but are not limited to:

(A) The Department's Verification of Financial Resources form (APD 0448F) completed and stamped or notarized by the applicant's or licensee's financial institutions.

(B) Documentation on letterhead of the applicant's or licensee's financial institutions that includes:

(i) The last four digits of the applicant's or licensee's account number;

(ii) The name of the account holder, and if the account is not in the applicant's or licensee's name, verification the applicant or licensee has access to the account's funds;

(iii) The highest, lowest, and current balance for each of the most recent three full months;

(iv) The line of credit balance available for each of the most recent three full months, if applicable;

(v) The number of any non-sufficient fund (NSF) payments in each of the last three full months, if any; and

(vi) The date and signature of the banking institution's representative completing the form.

(4) RESIDENT MANAGER REQUIREMENTS. A resident manager must live in the home as specified in section (1)(a)(A) of this rule and function as the primary caregiver under the licensee or administrator’s supervision. A resident manager must meet and maintain the qualification and training requirements specified in sections (1)(c) through (2)(g) of this rule. The LLA shall verify all the requirements of these rules have been satisfied prior to approval of a resident manager.

(5) FLOATING RESIDENT MANAGER REQUIREMENTS.

(a) A floating resident manager must meet and maintain the qualification and training requirements specified in sections (1)(c) through (2)(g) of this rule, except as indicated in (5)(b) of this rule.

(b) If the licensee has one or more homes within the jurisdiction of more than one LLA, a currently approved floating resident manager is not required to complete the Department-approved orientation in more than one licensing authority's jurisdiction. This exception does not prohibit the LLA within an exempt area from requiring the floating resident manager applicant to attend the LLA's orientation.

(d) Facility records in each of the homes a floating resident manager is assigned to work must maintain proof the floating resident manager has a current and approved background check.

(e) A floating resident manager may not be used in lieu of a shift caregiver, except on temporary basis, when the regular shift caregiver is unavailable due to circumstances, such as illness, vacation, or termination of employment.

(6) SHIFT CAREGIVER REQUIREMENTS.

(a) Shift caregivers may be used in lieu of a resident manager. If shift caregivers are used, each shift caregiver must meet or exceed the experience and training qualifications for the license classification requested.

(b) Shift caregivers must meet and maintain the qualification and training requirements specified in sections (1)(c) through (2)(g) of this rule. The LLA shall verify all the requirements of these rules have been satisfied prior to approval of a shift caregiver.

(7) SUBSTITUTE CAREGIVER REQUIREMENTS. A substitute caregiver left in charge of the residents for any period of time, may not be a resident, and must at a minimum, meet all the following qualifications prior to working alone in the home.

(a) Be at least 18 years of age.

(b) Have an approved background check in accordance with OAR 411-049-0120 and maintain that approval as required.

(c) Be proficient in the English language and demonstrate the ability to comprehend and communicate in English orally and in writing with the residents and the residents' family members and representatives, emergency personnel (e.g., emergency operator, law enforcement, paramedics, and fire fighters), licensed health care professionals, case managers, Department and LLA staff, and others involved in the care of the residents.

(d) Be able to respond appropriately to emergency situations at all times.

(e) Have a clear understanding of their responsibilities, have knowledge of the residents' care plans, and be able to provide the care specified for each resident, including appropriate delegation or consultation by a registered nurse.

(f) Possess physical health, mental health, good judgment, and good personal character, including truthfulness, determined necessary by the Department to provide care for adults who are older or adults with physical disabilities, as determined by reference checks and other sources of information.

(g) Not be listed on either of the Exclusion Lists.

(A) The licensee or administrator must verify the substitute caregiver is not listed on either of these Exclusion Lists; and

(B) Clearly document that verification in the facility's records.

(h) Complete CPR and First Aid training and certification within 30 calendar days of the start of employment. Certification must be maintained according to the standards established in (2)(b)(D) of this rule.

(i) Complete dementia training as stated in (2)(c).

(j) Complete LGBTQIA2S+ training as outlined by OAR 411-049-0125(2)(e).

(k) Complete HCBS training as outlined in OAR 411-049-0125(2)(f).

(l) Be oriented to the home, as stated in (2)(g) of this rule, by the licensee or administrator at the home, before providing direct care to any residents.

(m) Complete the Department's Caregiver Preparatory Training Study Guide (DHS 9030) and Workbook (DHS 9030-W) and receive instruction in specific care responsibilities from the licensee or administrator prior to working or training in the home. The Workbook must be completed by the substitute caregiver without the help of any others. The Workbook is considered part of the required orientation to the home and residents.

(A) The LLA may grant a variance to the Caregiver Preparatory Training Study Guide and Workbook requirement for a substitute caregiver who:

(i) Holds a current Oregon license as a health care professional, such as a physician, nurse practitioner, physician assistant, registered nurse, or licensed practical nurse; and

(ii) Demonstrates the ability to provide adequate care to residents based on similar training or at least one year of experience providing direct care to adults who are older or adults with physical disabilities.

(B) A certified nursing assistant (CNA) or certified medical assistant (CMA) must complete the Caregiver Preparatory Training Study Guide and Workbook and have a certificate of completion signed by the licensee or administrator.

(8) Contractors who provide services or supports directly to residents must complete the LGBTQIA2S+ and HIV trainings outlined in paragraph (11)(c) of this rule.

(a) Contractors who must be trained include, but are not limited to, RN consultants and administrative consultants, housekeeping services, dietary services, beauticians, barbers, or other contractors who provide services or supports directly to residents.

(b) Exempt from this training requirement are contractors who contract directly with the resident or the resident’s representative, and contractors who do not generally provide services or supports directly to residents, including but not limited to, contractors for landscaping, pest control, deliveries and building repairs.

(c) By December 31, 2024, licensees or administrators shall ensure that all contracts entered into with entities described in paragraph (a) of this section shall include language requiring contractors provide Department-approved LGBTQIA2S+ and HIV training to their employees within 12 months of entering into the contract with the licensee or administrator and every two years thereafter.

(d) For existing contracts in effect January 1, 2025, licensees or administrators shall require the contractor provide Department-approved LGBTQIA2S+ and HIV training to employees by December 31, 2025, and every two years thereafter.

(e) For new contracts created after January 1, 2025, licensees or administrators shall require contractors provide the Department-approved LGBTQIA2S+ and HIV training to employees within 12 months of entering into the contract with the facility, and every two years thereafter.

(f) Licensees or administrators must inform contractors that the cost of all LGBTQIA2S+ and HIV trainings for contracted employees shall be paid by the contractor.

(9) TRAINING WITHIN FIRST YEAR OF INITIAL LICENSURE OR APPROVAL. Within the first year of obtaining an initial license or approval, the licensee, administrator, resident manager, floating resident manager, and shift caregivers must complete:

(a) The Department-approved " Six Rights of Safe Medication Administration."

(b) Fire and Life Safety training, as available. The Department or LLA and the Office of the State Fire Marshal or the local fire prevention authority may coordinate the Fire and Life Safety training program.

(10) ANNUAL TRAINING REQUIREMENTS.

(a) Each year after initial licensure, the licensee, administrator, resident manager, floating resident manager, and shift caregivers must complete at least 12 hours of Department-approved training related to the care of adults who are older or adults with physical disabilities in an AFH setting. Up to:

(A) Four hours of the required annual training may be related to the business operation of the AFH.

(B) Two hours of CPR training and two hours of First Aid training may count as part of the required annual training.

(b) A licensee, administrator, resident manager, floating resident manager, and shift caregivers, as applicable, must maintain approved CPR and First Aid certification.

(A) All caregivers, including licensees, administrators, resident managers, floating resident managers, shift caregivers or substitute caregivers are required to complete the Department-approved annual HCBS training.

(B) These annual training requirements will be required as of April 1, 2025.

(d) Registered nurse delegation or consultation, and the Ensuring Quality Care Course (not including approved EQC refresher courses), AFH orientation, Ventilator Assisted Care Course and skills competency checks, or consultation with an accountant do not count toward the required 12 hours of annual training.

(11) BIENNIAL TRAINING REQUIREMENTS. Licensees, administrators, resident managers, floating resident managers, shift-caregivers, substitute caregivers, and contracted staff, shall be required to complete biennial training addressing LGBTQIA2S+ protections and (HIV), as described in this section. Licensees or administrators are responsible for the cost of providing this training to all staff.

(a) Each AFH shall designate two employees, as reasonable, one to represent management and one to represent direct care staff by July 1, 2024. The individual designated to represent management shall serve as a point of contact for the AFH regarding compliance with preservice training and biennial training. This person shall develop a general training plan for the AFH. For licensees and administrators that are also the primary caregiver, only one staff person will be required to be designated.

(b) The licensee or administrator must select the LGBTQIA2S+ and HIV training to be used by the AFH by either:

(A) Choosing to use the standard Department-approved biennial LGBTQIA2S+ and HIV training; or

(B) Applying to the Department to request approval of a biennial LGBTQIA2S+ and HIV training to be developed and provided by the licensee or administrator.

(A) Caring for LGBTQIA2S+ residents and residents living with HIV; and

(B) Preventing discrimination based on a resident’s sexual orientation, gender identity, gender expression or HIV status.

(D) Best practices for communicating with or about LGBTQIA2S+ residents and residents living with HIV, including the use of an individual’s chosen name and pronouns.

(E) A description of the health and social challenges historically experienced by LGBTQIA2S+ residents and residents living with HIV, including discrimination when seeking or receiving care at care facilities and the demonstrated physical and mental health effects within the LGBTQIA2S+ community associated with such discrimination.

(F) Strategies to create a safe and affirming environment for LGBTQIA2S+ residents and residents living with HIV, including suggested changes to care facility policies and procedures, forms, signage, communication between residents and their families, activities, in-house services and staff training.

(G) The individual or entity providing the training must demonstrate a commitment to advancing quality care for LGBTQIA2S+ residents and residents living with HIV in this state.

(d) The proposal for training submitted by a licensee, administrator, entity, or individual shall include:

(A) The regulatory criteria described in paragraph (c) of this section as part of the proposal.

(B) The following elements must be included in the proposal:

(i) A statement of the qualifications and training experience of the individual or entity providing the training.

(ii) The proposed methodology for providing the training either online or in person.

(iii) An outline of the training.

(iv) Copies of the materials to be used in the training.

(C) The Department will review the materials and determine whether to approve or deny the training. No later than 90 days after the request is received, the Department will inform the licensee or administrator in writing of the Department’s decision.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 441.122, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.767, 443.775 & 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 441.116, 441.118, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 20-2026, temporary amend filed 07/29/2026, effective 08/01/2026 through 01/27/2027
APD 31-2024, amend filed 06/21/2024, effective 07/01/2024
APD 10-2024, temporary amend filed 03/27/2024, effective 04/01/2024 through 07/06/2024
APD 1-2024, temporary amend filed 01/08/2024, effective 01/09/2024 through 07/06/2024
APD 45-2022, minor correction filed 09/26/2022, effective 09/26/2022
APD 61-2021, amend filed 12/23/2021, effective 01/01/2022
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-049-0135 Temporary rule language in effect until 01/27/2027. License Applications

(1) INITIAL LICENSE APPLICATION. The initial license application (APD 0448) must include:

(a) Verification of attendance at a Department-approved orientation program conducted by the LLA responsible for the licensing of the proposed AFH and successful completion of the Department's Ensuring Quality Care Course and examination. (See OAR 411-049-0125).

(b) Three personal references for the applicant who are not family members as defined in OAR 411-049-0102. Current or potential licensees and co-workers of current or potential licensees are not eligible as personal references.

(c) The classification being requested with information and supporting documentation regarding qualifications, relevant work experience, and training of staff as required by the Department. To request a Class 3 license, the application must include:

(A) Proof of at least three years of full-time experience providing direct care to adults who are older or adults with physical disabilities and who required full assistance in four or more of activities of daily living.

(B) Current contact information from at least two licensed health care professionals who have direct knowledge of the applicant's abilities and experience as a caregiver; or

(d) Documentation of the initiation of a background check or a copy of an approved background check for each subject individual as defined in OAR 411-049-0102.

(e) A Health History and Physician, Physician’s Assistant, or Nurse Practitioner's Statement (form APD 0903) regarding the applicant's ability to provide care.

(f) FINANCIAL INFORMATION. A completed AFH Financial Information form (APD 0448A), and supplemental information listed in OAR 411-049-0125(3) documenting at least two months of liquid resources to pay the operating costs of the home.

(g) If an applicant uses income from another AFH to document possession of at least two months of operating expenses, the applicant must demonstrate the financial ability and maintain sufficient liquid resources to pay the operating costs of each home for at least two months.

(h) Copies of the home's Residency Agreements according to OAR 411-050-0750.

(i) Copies of the home’s Nondiscrimination Notice that includes:

(j) If the applicant is purchasing or owns the home, verification of purchase or ownership.

(k) If the home is leased or rented, a copy of the completed lease or rental agreement. The agreement must be a standard lease or rental agreement for residential use and include the following:

(A) The owner and landlord's name.

(B) Verification that the rent is a flat rate.

(l) Complete contact information for the applicant including:

(A) A mailing address if different from the proposed AFH.

(B) A business address for electronic mail.

(m) The maximum resident capacity requested.

(n) Identify an Oregon-licensed registered nurse who has agreed to provide RN consultation, training and delegation to caregivers as needed.

(o) Identification of:

(A) Any relatives needing care.

(B) The maximum number of any room and board tenants.

(D) The names of any other occupants in the home.

(p) A $20 per bed non-refundable fee for each non-relative resident to be paid based on the approved license duration.

(q) If the applicant intends to use an administrator, resident manager, floating resident manager, or shift caregivers, the Department's supplemental application (form APD 0448B) completed by the applicant, as appropriate.

(r) The applicant must submit all proposed policies and procedures to the LLA. All policies and procedures must be reviewed and approved by the LLA prior to the issuance of a license. At a minimum, the application must include:

(A) Staff and administrator training, as required by OAR 411-049-0125. All trainings must be documented as required by OAR 411-050-0745.

(B) Service planning, including the initial screening assessment and care plan as required by OAR 411-051-0115. All screening assessments and care plans must be documented according to OAR 411-050-0750.

(C) Medication administration, as required by OAR 411-051-0130. All medications must be documented as required by OAR 411-050-0750.

(D) Food preparation, distribution and storage, as required by OAR 411-050-0750.

(E) Safety, as required by OAR 411-050-0720.

(F) Emergency response, as required by OAR 411-050-0725.

(G) Succession Plan or current AFH Back-up Provider Agreement form (APD 0350), as required by OAR 411-050-0730.

(H) Nondiscrimination policy, as required by OAR 411-049-0135.

(s) The current AFH Weekly Plan of Operation form (APD 0351) describing the operational plan for the AFH.

(t) A current and accurate floor plan that indicates:

(A) The size of rooms.

(B) Which bedrooms are to be used by residents, the licensee, caregivers, for adult day services, and room and board tenants, as applicable.

(D) The location of any wheelchair ramps.

(E) The location of all fire extinguishers, smoke alarms, and carbon monoxide alarms.

(F) The planned evacuation routes, initial point of safety, and final point of safety.

(G) Any designated smoking areas in or on the AFH premises.

(u) A copy of the applicant's current license as a health care professional in Oregon, if applicable.

(v) Incomplete initial applications are void after 60 calendar days from the date the LLA receives the application form and non-refundable fee, and the Department may deny the application if not withdrawn.

(2) MULTIPLE HOMES. An applicant may not be licensed to operate a second AFH, or any additional home, without first demonstrating a history of substantial compliance for previous and currently licensed AFHs.

(a) A separate application is required for each location where an AFH is to be operated.

(b) A written plan describing the administrative responsibilities and staffing to cover each home is required.

(c) The applicant must complete the Department's application form for the specific type of license requested and submit the application form to the LLA with the non-refundable fee.

(d) Applications are not complete until all the required information is submitted to the LLA. Failure to provide complete and accurate information may result in the denial of the application.

(e) The applicant may withdraw their application at any time during the application process by written notification to the LLA.

(f) An applicant whose license has been revoked, non-renewed, voluntarily surrendered during a revocation or non-renewal process, or whose application for licensure has been denied, shall not be granted a new license by the LLA for a period of not less than one year from the date the action was final, or for a longer period if specified in the final order.

(g) All moneys collected under ORS 443.725 to 443.825 are paid to the Quality Care Fund.

(3) LICENSE RENEWAL.

(a) At least 90 calendar days prior to the expiration of a license, the LLA must send a reminder notice and renewal application to the licensee.

(b) License renewal inspections may be conducted with an appointment when requested by a licensee or administrator. The request must be made no less than 30 days prior to the expiration of the license, and the appointment must be scheduled at a mutually agreed upon time in cooperation with the LLA. If advance notice may obstruct or diminish the effectiveness of the enforcement of these rules, the appointment request may be denied.

(c) The application (form APD 0448C) must be completed and timely submitted with the required non-refundable fee to the LLA prior to the expiration date of the current license. Timely submission of the renewal application and fee shall keep the license in effect until the LLA or the Department takes action. The complete application will include:

(A) The requirements listed in (1)(i) through (t) of this rule.

(B) A Health History and Physician or Nurse Practitioner's Statement (form APD 0903). The Health History and Physician or Nurse Practitioner's Statement must be submitted at the following intervals:

(i) With the licensee’s or administrator’s second year renewal of licensure.

(ii) With every alternating license renewal thereafter.

(iii) When there is reasonable concern related to the licensee or administrator’s health or fitness.

(C) FINANCIAL INFORMATION FOR THE HOME'S FIRST LICENSE RENEWAL. A completed Financial Information Worksheet (form APD 0448A) demonstrating the financial ability to maintain sufficient liquid resources to pay the home's operating costs for at least two months.

(D) Documentation of a current approved background check for each subject individual according to OAR 411-049-0120.

(E) Copies of the home's Residency Agreement forms if changes to the original forms reviewed by the LLA are proposed.

(F) Proof of required annual training as specified in OAR 411-049-0125(10).

(G) Beginning August 1, 2026, current licensees must submit all policies and procedures to be reviewed and approved by the LLA at renewal, as required by OAR 411-049-0135.

(d) A renewal application remaining incomplete at the time of license expiration, or failure to provide accurate information on the renewal application may result in the denial of the application.

(4) LOCAL LICENSING AUTHORITY AND DEPARTMENT ACTION. After receipt of the completed application materials, including the non-refundable fee:

(a) FOR INITIAL LICENSE APPLICATIONS:

(A) The LLA must investigate the information submitted including pertinent information received from outside sources, conduct a personal interview with the applicant, and conduct an in-person inspection of the home identifying any deficiencies on the Department's Inspection Form, and specify a time frame for correction not to exceed 30 days.

(B) The licensee must be given a copy of the Department's Inspection Form.

(D) The LLA must issue a license within 60 calendar days after the completed application materials have been received if the home and applicant are in compliance with these rules.

(E) The Department shall deny the issuance of a license if deficiencies cited are not corrected within the time frames specified by the LLA.

(b) FOR RENEWAL LICENSE APPLICATIONS:

(A) The LLA shall investigate the information submitted, review the licensing records for the applicant, conduct an in-person inspection of the home, and provide the licensee a copy of the Department's Statement of Deficiencies and Plan of Correction form identifying any violations and specifying a time frame for correction not to exceed 30 days.

(B) The Department may deny a renewal application if cited deficiencies are not corrected within the time frame specified by the LLA.

(C) EXPIRED AND UNLICENSED ADULT FOSTER HOME. If the required renewal information and fee are not timely submitted to the LLA as required in (3) of this rule and residents remain in the home after the date the license expires, the home shall be treated as an unlicensed facility, subject to civil and criminal penalties (See OAR 411-052-0025 and OAR 411-052-0045).

(D) The LLA must review and approve the submitted policies and procedures outlined in OAR 411-049-0135.

(E) The LLA shall review the licensee or administrator’s renewal application to determine eligibility for a two-year license renewal period. Eligibility will be based on the criteria outlined in OAR 411-049-0105.

(c) The licensee or administrator must post the most recent inspection reports, according to OAR 411-049-0140, and must provide upon request a copy of the reports to each resident, person applying for admission to the home, or the legal representative, guardian, or conservator of a resident.

(d) The Department may attach conditions to the license that limit, restrict, or specify other criteria for operation of the home. The conditions must be visibly posted with the license.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 441.122, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775 & 443.790
Statutes/Other Implemented: ORS 409.50, 410.070, 413.085, 441.112, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 20-2026, temporary amend filed 07/29/2026, effective 08/01/2026 through 01/27/2027
APD 57-2024, amend filed 09/23/2024, effective 09/25/2024
APD 13-2024, temporary amend filed 03/28/2024, effective 04/01/2024 through 09/27/2024
APD 46-2022, minor correction filed 09/26/2022, effective 09/26/2022
APD 15-2022, temporary suspends temporary APD 64-2021, filed 03/14/2022, effective 03/21/2022 through 06/29/2022
APD 64-2021, temporary amend filed 12/28/2021, effective 01/01/2022 through 06/29/2022
APD 61-2021, amend filed 12/23/2021, effective 01/01/2022
APD 56-2021, temporary amend filed 12/09/2021, effective 12/15/2021 through 06/12/2022
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-049-0140 Temporary rule language in effect until 01/27/2027. Local Licensing Authority Action and Inspections

(1) The LLA shall inspect all AFHs including pending applicants prior to the issuance of a license issuance of a license or renewal.

(a) INITIAL LICENSE.

(A) The licensee or administrator must be given a copy of the Department's Adult Foster Home Initial Inspection Form identifying any areas of non-compliance and a time frame for correction.

(B) The licensee or administrator must correct all identified areas of non-compliance before the Department may issue a license.

(C) The Department or LLA must conduct a follow-up in-person visit no less than 90 days and no more than 120 days after an initial license is issued. The purpose of the inspection is to determine whether the home is maintained and operated in accordance with these rules. During the visit, the Department or LLA will also consult with and advise the provider concerning methods of care, treatment, training, records, housing and equipment.

(b) RENEWAL LICENSE.

(A) The licensee or administrator must be given a copy of the Department's Renewal Inspection Form, and the Department's Statement of Deficiencies and Plan of Correction identifying any area of non-compliance with a time frame for correction.

(B) The Statement of Deficiencies must specify a time frame for the correction of each violation. The time frame for correction may not exceed 30 calendar days from the date of inspection.

(A) The LLA must conduct an annual in-person inspection for licensees or administrators on an approved two-year renewal cycle.

(B) Annual inspections may be conducted with an appointment when requested by a licensee or administrator. The request must be made no less than 30 days prior to the anniversary of the license, and the appointment must be scheduled at a mutually agreed upon time in cooperation with the LLA.

(C) If advance notice may obstruct or diminish the effectiveness of the enforcement of these rules, the appointment request may be denied.

(2) ISSUANCE.

(a) The LLA must issue an initial license within 60 calendar days after the completed application materials have been received if the home is in compliance with these rules.

(b) The LLA shall issue an initial or renewal license only if the following requirements are met:

(A) The applicant and the AFH are in compliance with ORS 443.705 to 443.825 and these rules, including any applicable conditions and other final orders of the Department.

(B) The LLA has completed an in-person inspection of the AFH as required by ORS 443.755 and these rules.

(D) The LLA has reviewed the record of sanctions available from the LLA's files.

(E) The LLA has determined the nursing assistant registry maintained under 42 CFR 483.156 contains no finding that the licensee or any nursing assistant employed by the licensee has been responsible for abuse.

(F) The LLA has determined the licensee is not listed on either of the Exclusion Lists.

(G) The applicant currently operates or has operated any other facility licensed by the applicant in substantial compliance with ORS 443.705 to 443.825.

(H) The applicant has demonstrated to the LLA the financial ability and resources necessary to operate an AFH in accordance with OAR 411-049-0125(3).

(3) BURDEN OF PROOF.

(a) In seeking an initial license, the burden of proof to establish compliance with ORS 443.705 to 443.825 and these rules is upon the AFH applicant.

(b) In seeking the renewal of a license when an AFH has been licensed for less than 24 months, the burden of proof to establish compliance with ORS 443.705 to 443.825 and these rules is upon the licensee.

(c) In seeking the renewal of a license when an AFH has been licensed for 24 or more continuous months, the burden of proof to establish non-compliance with ORS 443.705 to 443.825 and these rules is upon the Department.

(4) INSPECTION REPORTS. The licensee or administrator must:

(a) Post the most recent inspection reports in the entry of the home or an equally prominent place; or

(b) Maintain the most recent inspection reports in a binder that is readily accessible and post the location of the facility binder with other required postings.

(c) Upon request, provide a copy of the reports to each resident, person applying for admission to the home, or the legal representative, guardian, or conservator of a resident.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, 443.790 & 443.755
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 20-2026, temporary amend filed 07/29/2026, effective 08/01/2026 through 01/27/2027
APD 47-2022, minor correction filed 09/26/2022, effective 09/26/2022
APD 61-2021, amend filed 12/23/2021, effective 01/01/2022
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-049-0145 Medicaid Provider Enrollment Agreement (PEA)

(1) An applicant or licensee who intends to care for residents who are or become eligible for Medicaid services must enter into a Medicaid PEA with the Department, follow Department rules, and abide by the terms of the Medicaid PEA.

(2) An approved Medicaid PEA does not guarantee the placement of individuals eligible for Medicaid services in the AFH.

(3) An approved Medicaid PEA is valid for the length of the license unless earlier terminated by the licensee or the Department. A Medicaid PEA must be completed, submitted, approved, and renewed with each licensing cycle.

(4) The rate of compensation established by the Department is considered payment in full. The licensee may not request or accept additional funds or in-kind payment from any source.

(5) An individual eligible for Medicaid services may not be admitted into an AFH unless and until:

(a) The Department has approved a Medicaid PEA. The Department shall not issue a Medicaid payment to a licensee without a current license and an approved Medicaid PEA in place;

(b) The individual eligible for Medicaid services has been screened according to OAR 411-051-0110; and

(c) The Department has authorized the placement. The authorization must be clearly documented in the resident's record with other required admission materials. (See OAR 411-050-0750).

(6) The Department shall not make payment for the date a resident moves from the home, or for any time period thereafter.

(7) A licensee who elects to provide care for individuals eligible for Medicaid services is not required to admit more than one resident eligible for Medicaid services. However, if the licensee has an approved Medicaid PEA, private-pay residents who become eligible for Medicaid services may not be asked to leave solely based on Medicaid eligibility.

(8) The licensee or the Department may terminate a Medicaid PEA according to the terms of the Medicaid PEA.

(9) The Department may terminate a Medicaid PEA under the following circumstances:

(a) The licensee fails to maintain substantial compliance with all related federal, state, and local laws, ordinances, and regulations; or

(b) The license to operate the AFH has been voluntarily surrendered, revoked, or non-renewed.

(10) The Department must terminate a Medicaid PEA under the following circumstances:

(a) The licensee fails to permit access by the Department, the LLA, OHA, or CMS to any AFH licensed to and operated by the licensee.

(b) The licensee submits false or inaccurate information.

(c) Any person with five percent or greater direct or indirect ownership interest in the AFH did not submit timely and accurate information on the Medicaid PEA form or fails to submit fingerprints if required under the Background Check Rules in OAR 407-007-0200 to 407-007-0370.

(d) Any person with five percent or greater direct or indirect ownership interest in the AFH has been convicted of a criminal offense related to the person's involvement with Medicare, Medicaid, or Title XXI programs in the last 10 years.

(e) Any person with an ownership or control interest, or who is an agent or managing employee of the AFH, fails to submit timely and accurate information on the Medicaid PEA form.

(11) If the licensee submits notice of termination of the Medicaid PEA, the licensee must comply with the following requirements:

(a) Simultaneously issue the Department's Notice of Involuntary Move or Transfer of Resident form (APD 0901) to each resident eligible for Medicaid services in the licensee's AFH (See OAR 411-050-0760).

(b) Update Residency Agreement according to OAR 411-050-0705 and submit to the LLA for review.

(c) Obtain signatures of all current residents, or the resident's representative on the updated Residency Agreement following the LLA's review.

(12) If either the licensee or the Department terminates a Medicaid PEA, a new Medicaid PEA shall not be approved by the LLA for a period of not less than 180 days from the date the licensee or the Department terminated the Medicaid PEA.

(13) DEATH OF RESIDENT ELIGIBLE FOR MEDICAID SERVICES WITH NO SURVIVING SPOUSE. The licensee must forward all personal incidental funds (PIF) to the Estate Administration Unit, P. O. Box 14021, Salem, Oregon 97309-5024, within 10 business days of the death of a resident eligible for Medicaid services with no surviving spouse. (See Limits on Estate Claims, OAR 461-135-0835).

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, 443.880 & 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 48-2022, minor correction filed 09/26/2022, effective 09/26/2022
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-049-0150 Temporary rule language in effect until 01/27/2027. Limited Adult Foster Homes

(1) The licensee must comply with all requirements for HCB Settings as described in these rules. (See OAR chapter 411, division 004).

(2) To qualify for a limited AFH license the applicant or licensee must be at least 21 years of age and submit:

(a) A completed application for initial or renewal limited licenses.

(b) The Department's Health History and Physician's or Nurse Practitioner's Statement that indicates the applicant or licensee is physically, cognitively, and emotionally capable of providing care to a specific adult who is older or who has a physical disability and with whom the applicant has an established relationship of not less than one year. The Health History and Statement must be submitted at the following intervals:

(A) Initial application for licensure.

(B) With the licensee’s second year renewal of licensure.

(D) When there is reasonable concern related to the licensee’s health or fitness.

(c) Documentation of the initiation of a background check or copy of an approved background check for each subject individual.

(d) Completion of the Department's Caregiver Preparatory Training Study Guide (DHS 9030) and Workbook (DHS 9030-W).

(e) A $20 non-refundable fee. If the licensee requests and is granted a variance from the capacity limitation of one resident, a $20 per bed non-refundable fee for each non-relative resident is required.

(3) The applicant or licensee must demonstrate a clear understanding of the resident's care needs.

(4) The applicant or licensee must live in the home that is to be licensed.

(5) The applicant or licensee must own, rent, or lease the home where care is being provided. The applicant or licensee must provide verification of proof of ownership or a copy of the signed and dated rental or lease agreement as applicable.

(6) A caregiver must be available at all times, 24 hours a day, seven days a week, when the resident is in the home. The caregiver must have the knowledge and ability to meet the resident's care needs. All caregivers must:

(a) Have an approved background check according to the Background Check Rules before working in the home.

(b) Complete the Department's Caregiver Preparatory Training Study Guide (DHS 9030) and Workbook (DHS 9030-W).

(7) The licensee must notify the LLA if the licensee shall be absent from the home 10 days or more and the resident shall be remaining in the home during the absence. The licensee must also submit a staffing plan to the LLA demonstrating coverage during the absence that meets the needs of the resident.

(8) The resident's bedroom must be in close enough proximity to the licensee or caregiver in charge to alert him or her to nighttime needs or emergencies, or the bedroom must be equipped with a functional call bell or intercom within the resident's abilities to operate.

(9) The licensee and caregiver must have a complete understanding of the resident's medications. The licensee must have a copy of current prescribing practitioner orders including, if applicable, written authorization for self-administration of medications.

(10) Medications must be stored in the original labeled container except when stored in a seven-day closed container manufactured for advanced set-up of medications.

(11) The licensee and caregiver must place used, disposable syringes and needles, and other sharp items in a puncture-resistant, red container designed for disposal of sharp items. Disposal must be according to local regulations as stated in OAR 411-050-0720(15). (See ORS 459.386-459.405).

(12) The licensee, the licensee's family, and employees of the home must guarantee not to violate the Resident's Rights as outlined in OAR 411-051-0105.

(13) The licensee must have a copy of any applicable legal documents, such as Advance Directive, Physician Order for Life-Sustaining Treatment (POLST), and Do Not Resuscitate (DNR) orders.

(14) The home must have a working landline and corded telephone. If the licensee has a caller identification service on the home number, the blocking feature must be disabled to allow incoming calls to be received unhindered. Voice over internet protocol (VoIP), voice over broadband (VoBB), or cellular telephone service may not be used in place of a landline.

(15) CONSTRUCTION. Interior and exterior doorways used by a resident must be wide enough to accommodate wheelchairs and walkers if used by the resident. Interior and exterior stairways must be unobstructed, equipped with handrails, and appropriate to the condition of the resident.

(16) Hardware for all exit doors and interior doors must be readily visible and have simple hardware that may not be locked against exit and must have an obvious method of operation. Hasps, sliding bolts, hooks and eyes, slide chain locks, and double key deadbolts are not permitted.

(a) The resident's bedroom must have a lockable door for the resident's privacy, as stated in OAR 411-051-0105. The locking device must release by a single-action on the inside of the room and open to a hall or common-use room.

(b) The resident shall be provided a key that only locks and unlocks his or her bedroom door.

(c) A master key to the resident's door lock must be immediately available to the licensee and all other caregivers in the home.

(17) If a home has a resident with impaired judgment who is known to wander away, the home must have an activated alarm system to alert a caregiver of the resident's unsupervised exit.

(18) Buildings must be of sound construction with wall and ceiling flame spread rates at least substantially comparable to wood lath and plaster or better. The maximum flame spread of finished materials may not exceed 200 and the smoke developed index may not be greater than 450. If more than 10 percent of combined wall and ceiling areas in a sleeping room or exit way is composed of readily combustible material such as acoustical tile or wood paneling, such material must be treated with an approved flame-retardant coating. Exception: Buildings supplied with an approved automatic sprinkler system.

(19) Manufactured homes must be in compliance with OAR 411-050-0720(6).

(20) The applicant or licensee must meet minimal fire safety standards including:

(a) A functional smoke alarm with back-up battery must be installed in all sleeping areas and hallways or access ways that adjoin sleeping areas.

(b) A functional carbon monoxide alarm with back-up battery must be installed within 15 feet of each bedroom and at a height as recommended by the manufacturer.

(c) At least one fire extinguisher with a minimum classification of 2-A:10-B:C must be mounted in a visible and readily accessible location on each floor, including basements, and be checked at least once a year by a qualified person who is well versed in fire extinguisher maintenance. All recharging and hydrostatic testing must be completed by a qualified agency properly trained and equipped for this purpose.

(d) The licensee must have a safe evacuation plan and may be required to demonstrate the evacuation plan. The licensee may be required to install an Americans with Disabilities Act (ADA) compliant ramp for the safety of all occupants.

(e) The licensee and all occupants must be able to evacuate within three minutes to an initial point of safety exterior to and away from the structure, with access to a public sidewalk or street. The licensee and all occupants must be able to demonstrate the ability to further evacuate all occupants from the initial point of safety to the final point of safety within two minutes or less.

(f) Smoking is prohibited in any bedroom, including that of the resident, the licensee, occupants, or caregivers and in any room where oxygen is used or stored.

(g) The home must be built of standard construction and must meet all applicable state and local building, mechanical, and housing codes for fire and life safety.

(h) A resident must have a bedroom that:

(A) Was constructed as a bedroom when the home was built or remodeled under permit.

(B) Is finished with walls or partitions of standard construction that go from floor to ceiling.

(C) Has a door large enough to accommodate the occupant of the room and any equipment that may be necessary such as a hospital bed or wheelchair.

(D) Has adequate ventilation, heat, and lighting with at least one operable window or exterior door that leads directly outside as a secondary egress for resident use.

(E) Has at least 70 square feet of usable floor space.

(i) All exit ways, including windows, must remain unobstructed at all times.

(j) Flammable materials must not be stored within 36 inches of open flame or heat sources.

(k) Only sealed electric transfer heaters or electric space heaters with tip-over shut-off capability may be used when approved by the State Fire Marshal or State Fire Marshal's designee. Heaters must be plugged directly into an outlet and may not be used with extension cords.

(l) The licensee must install or make available, any supportive device necessary to meet the resident's needs and ensure resident safety including, but not limited to, grab bars, ramps, and door alarms.

(21) A license is not transferable and does not apply to any location or person other than the location and the person indicated on the license obtained from the LLA.

(22) The licensee must notify the LLA at least 30 days before any change in residential or mailing address.

(23) The Department, the LLA, and the Centers for Medicare and Medicaid Services (CMS) have authority to conduct inspections with or without advance notice to the licensee or the residents of a home. The licensee must allow and authorize other caregivers and occupants to permit entrance and access to the home and the resident for the purpose of assessing, monitoring, inspection, investigation, and other duties within the scope of the Department, the LLA, or CMS.

(24) The applicant or licensee must obtain any training and maintain resident record documentation deemed necessary by the Department to provide adequate care for the resident.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443,725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775 & 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 20-2026, temporary amend filed 07/29/2026, effective 08/01/2026 through 01/27/2027
APD 14-2022, temporary suspends temporary APD 56-2021, filed 03/14/2022, effective 03/21/2022 through 06/12/2022
APD 56-2021, temporary amend filed 12/09/2021, effective 12/15/2021 through 06/12/2022
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-049-0155 Ventilator-Assisted Care Requirements

(1) AFHs that provide ventilator-assisted care for residents must meet the requirements of this rule, in addition to the other requirements set forth in these rules.

(2) LICENSE REQUIRED. A person or entity may not represent themselves as operating an AFH that provides ventilator-assisted care or accept placement of an individual requiring ventilator-assisted care without being licensed as a ventilator-assisted care AFH.

(3) The licensee must comply with all HCB Settings requirements as described in these rules.

(4) To apply for an initial license to provide ventilator-assisted care, and to renew the license, an applicant must complete the Department's ventilator-assisted care application form (APD 0448V) and submit the application with the required information and nonrefundable fee as outlined in OAR 411-049-0105 to the LLA. Applications are processed according to OAR 411-049-0135.

(5) QUALIFICATIONS AND TRAINING. An applicant, licensee, and all other caregivers must meet and maintain compliance with OAR 411-049-0125. Additionally:

(a) The applicant, licensee, administrator, resident manager, floating resident manager, or shift caregivers, as applicable, must demonstrate one year of full-time experience in providing ventilator-assisted care.

(b) The applicant, licensee, or administrator, as applicable, must have experience operating a Class 3 AFH in substantial compliance with these rules for at least one year.

(c) An applicant for an AFH providing ventilator-assisted care must be the primary caregiver and live in the home where ventilator-assisted care is to be provided for a minimum of one year from the date the initial ventilator-assisted care license is issued. The licensee may employ a resident manager to be the primary live-in caregiver after providing ventilator-assisted care for the one-year period. The resident manager must be approved by the LLA and the Department.

(d) The applicant, licensee, and all other caregivers must successfully complete the Department's approved training pertaining to ventilator-assisted care and other training as required. Training is required on an annual basis and must be completed by the licensee, resident manager, floating resident manager, shift caregivers, and substitute caregivers, as applicable, prior to approval of a renewed ventilator-assisted care license.

(6) CLASSIFICATION. An applicant for a ventilator-assisted care license must possess the minimum qualifications outlined in section (5) of this rule. The applicant and licensee must meet and maintain compliance with OAR 411-049-0105. The LLA shall issue a Level A, Level B, or Level C ventilator-assisted care AFH license to qualified applicants.

(a) A licensee with a Level C ventilator-assisted care license may admit a maximum of one resident who requires ventilator-assisted care. The LLA may issue a Level C license if the applicant has:

(A) Satisfied the requirements described in section (5) above; and

(B) Successfully operated a Class 3 home in substantial compliance with these rules for a period of not less than one year.

(b) A licensee with a Level B ventilator-assisted care license may admit a maximum of three residents who require ventilator-assisted care. The LLA may issue a Level B license if the licensee has:

(A) Satisfied the requirements described in section (5) above; and

(B) Successfully operated and provided ventilator-assisted care in their Level C home in substantial compliance with these rules for a period of not less than one year.

(c) A licensee with a Level A ventilator-assisted care license may admit a maximum of five residents who require ventilator-assisted care. The LLA may issue a Level A license if the licensee has:

(A) Satisfied the requirements described in section (5) above; and

(B) Successfully operated and provided ventilator-assisted care in their Level B home in substantial compliance with these rules for a period of not less than one year.

(7) CAPACITY. An applicant and licensee must meet and maintain compliance with OAR 411-049-0105. The number of residents permitted to reside in a ventilator-assisted care AFH is determined by the level of the home, the ability of the staff to meet the care needs of the residents, the fire and life safety standards, and compliance with these rules. A licensee may only admit or continue to provide ventilator-assisted care for residents according to the level of the home's license. A licensee may admit other residents who do not require ventilator-assisted care within the approved license capacity listed on the home's license.

(8) OPERATIONAL STANDARDS. In addition to the standards set forth in these rules:

(a) FOR LEVEL A AND LEVEL B. A minimum of two qualified and approved caregivers must be on site and available to meet the routine and emergency care and service needs of the residents 24 hours a day. A minimum of one of the two qualified and approved caregivers must be awake during nighttime hours.

(b) FOR LEVEL C. At least one qualified and approved caregiver must be on site, available, and awake to meet the routine and emergency care and service needs of the residents 24 hours a day.

(d) The applicant and licensee must have a satisfactory system in place to ensure the caregivers are alert to the 24-hour needs of residents who may be unable to independently call for assistance.

(e) All caregivers must know how to operate the back-up generator without assistance and be able to demonstrate how to operate the back-up generator upon request by the Department or LLA.

(9) FACILITY STANDARDS. An applicant and licensee must meet and maintain compliance with OAR 411-050-0715. In addition:

(a) The residents' bedrooms must be a minimum of 100 square feet, or larger if necessary, to accommodate the standard requirements of OAR 411-050-0715, the needs of the resident, and the equipment and supplies necessary for the care and services needed by individuals requiring ventilator-assisted care.

(b) Homes that provide ventilator-assisted care for residents must have a functional, emergency back-up generator. The generator must be adequate to maintain electrical service for resident needs until regular service is restored. Hard wired, back-up generators must be installed by a licensed electrician. Back-up generators must be tested monthly and the test must be documented in the facility records.

(d) The home must have a functional sprinkler system and maintenance of the sprinkler system must be completed as recommended by the manufacturer. A home that does not have a functional sprinkler system, but was approved to provide ventilator-assisted care prior to September 1, 2013, must install a functional whole-home sprinkler system. (See OAR 411-050-0725(3) for evacuation requirements with sprinklers).

(e) Each resident's bedroom must have a mechanism in place that enables the resident to summon a caregiver's assistance when needed. The mechanism must be within the abilities of the resident to use. The summons must be audible in all areas of the AFH.

(10) STANDARDS FOR CARE. Licensees must meet and maintain compliance with OAR 411-051-0110. In addition:

(a) Prior to admitting a resident requiring ventilator care to the AFH, the licensee must obtain preauthorization from the Department.

(b) The licensee must have a primary care physician identified for each resident being considered for admission.

(c) The licensee, including a licensee who is an Oregon licensed practical nurse (LPN), must retain the services of a registered nurse (RN) consultant to work in the home who is licensed by the State of Oregon and trained in the care of individuals requiring ventilator-assisted care. RN services include, but are not limited to, the provision of medical consultation and supervision of resident care, skilled nursing care as needed, and delegation of nursing care to caregivers. When the licensee is an RN, a back-up RN licensed by the State of Oregon and trained in the care of individuals requiring ventilator-assisted care must be identified and available to provide nursing services in the absence of the licensee.

(d) The licensee must develop individual care plans for each resident with the RN consultant addressing the expected frequency of nursing supervision, consultation, and direct service intervention. The RN consultation must be documented on the resident's completed care plan with the RN's signature and date signed.

(e) The licensee must have physician, RN, and respiratory therapist consultation services, all licensed by the State of Oregon and trained in the care of individuals requiring ventilator-assisted care available on a 24-hour basis and for in-home visits as appropriate. The licensee must call the appropriate medical professional to attend to the emergent care needs of the residents.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775 & 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 49-2022, minor correction filed 09/26/2022, effective 09/26/2022
APD 61-2021, amend filed 12/23/2021, effective 01/01/2022
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-049-0160 Variances

(1) An applicant, licensee, or administrator may request a variance to the provisions of these rules. The variance request must be in writing and must include clear and convincing evidence that:

(a) The requested variance does not jeopardize the care, health, welfare, or safety of the residents;

(b) All of the residents' needs shall be met; and

(2) VARIANCES NOT ALLOWED. Except for section (1) of this rule, no variance shall be granted by the LLA from a regulation or provision of the rules pertaining to:

(a) Resident capacity as described in OAR 411-049-0105.

(b) Minimum age of licensee and any caregivers as described in OAR 411-049-0125, except as stated in OAR 411-049-0150(3).

(A) Provisional licenses as described in OAR 411-049-0105(14)(b);

(B) When a substitute caregiver holds an Oregon health care professional license as described in OAR 411-049-0125; or

(C) A licensee designated as a corporate entity must obtain a variance to the training requirements as described in OAR 411-049-0125(2)(a) – (2)(g).

(d) Standards and practices for care and services as described in OAR chapter 411, division 51.

(e) In-person inspections of the facility as described in OAR 411-052-0005.

(f) Background checks as described in OAR 411-049-0120.

(3) The LLA shall not grant a variance request to any rule that is inconsistent with Oregon Revised Statutes or 42 CFR 441.301(c)(2)(xiii) and 42 CFR 441.530(a)(1)(vi) (See OAR 411-049-0160(4)).

(4) The LLA shall not grant a variance request related to fire and life safety without prior consultation with the Department.

(5) In deciding to grant a variance, the LLA must consider the licensee's history of compliance with rules governing AFHs or other long-term care facilities for adults who are older or adults with physical disabilities in Oregon and any other jurisdiction, if appropriate. The LLA must determine that the variance is consistent with the intent and purpose of these rules before granting the variance. The LLA must respond, in writing, within 30 days of receiving a request for a variance. The written response must include the frequency of renewal.

(6) A variance is not effective until granted in writing by the LLA. Variances are reviewed pursuant to these rules. If applicable, the licensee must re-apply for a variance at the time of license renewal, or more often if determined necessary by the LLA.

(7) In seeking a variance, the burden of proof that the requirements of these rules have been met is upon the applicant or licensee.

(8) If a variance to any provision of these rules is denied, the applicant or licensee may request a meeting with the LLA.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 441.122, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775 & 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 441.116, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 57-2024, amend filed 09/23/2024, effective 09/25/2024
APD 13-2024, temporary amend filed 03/28/2024, effective 04/01/2024 through 09/27/2024
APD 61-2021, amend filed 12/23/2021, effective 01/01/2022
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Division 50 ADULT FOSTER HOMES FOR OLDER ADULTS OR ADULTS WITH PHYSICAL DISABILITIES - STANDARDS OF OPERATION

Or. Admin. R. 411-050-0705 Residency Agreement

(1) A licensee or administrator must enter into a written Agreement with all residents or the residents' representatives, which details the care and services to be provided, and the rate to be charged. The written Agreement must be signed by all parties before the admission of the resident. A copy of the Agreement is subject to review for compliance with these rules by the LLA before licensure and before the implementation of any changes to the Agreement.

(2) The Agreement must include, but not be limited to:

(a) Services to be provided and the rate to be charged. For individuals receiving Medicaid, the Residency Agreement may state the rate will be "as authorized by the Department". A payment range may not be used unless the Agreement plainly states when an increase in rate may be expected based on a resident's increased care or service needs.

(b) Conditions under which the rates may be changed.

(c) The home's refund policies in instances of a resident's hospitalization, temporary absence, death, transfer to another care setting, and voluntary or involuntary move. The refund policies must be in compliance with OAR 411-050-0710. For consumers, the Agreement must:

(A) Disclose refund policies for partial months and indicate if the room and board is refundable.

(B) Be consistent with the rules for Payment Limitations in Home and Community-Based Services in OAR chapter 411, division 27.

(d) A statement indicating the resident is not liable for damages considered normal wear and tear on the AFH and the AFH's contents.

(e) A statement that must be initialed and dated by the resident or the resident's representative, indicating whether the resident agrees to a shared bedroom.

(3) The Agreement must disclose the home's policies regarding:

(a) Moves, including:

(A) Voluntary moves and whether the licensee requires written notification of a non-Medicaid resident's intent to not return.

(B) Involuntary moves and the resident's rights according to OAR 411-050-0760.

(b) Any charges for storage of belongings that remain in the AFH for more than 15 calendar days after the resident has left the home.

(d) Smoking in compliance with OAR 411-050-0720(18).

(e) Animals. Restrictions may not apply to animals that provide assistance or perform tasks for the benefit of a person with a disability. Such animals are often referred to as service animals, assistance animals, support animals, therapy animals, companion animals, or emotional support animals.

(f) The presence and use of legal medical and recreational marijuana on the premises.

(g) Schedule of meal times with no more than a 14-hour span between the evening meal and the following morning's meal (See OAR 411-050-0730(8)).

(h) Whether the home serves individuals eligible for Medicaid services.

(i) Refunds for residents eligible for Medicaid services, including pro-rating partial months and if the room and board is refundable.

(j) A clear and precise statement of any limitation to the implementation of Advance Directives on the basis of conscience. This rule does not apply to medical professional or hospice orders for administration of medications. The statement must include:

(A) A description of conscientious objections as they apply to all occupants of the AFH.

(B) The legal authority permitting such objections under ORS 127.505 to 127.660.

(4) The policies within the Agreement must be consistent with the practices of the licensee, staff, occupants, and visitors of the home.

(5) The Agreement also must:

(a) Not conflict with the Resident's Rights, the family atmosphere of the home, or any of these rules.

(b) Be reviewed by the LLA to determine compliance with these rules before the issuance of a license, and before implementing any changes.

(6) The Agreement must include the freedoms authorized by 42 CFR 441.301(c)(4) & 42 CFR 441.530(a)(1), which must not be limited without the informed, written consent of the resident or the resident's legal representative, and for consumers, approval by the person-centered service plan coordinator. These include the right to be free from restraints according to the Resident's Bill of Rights, and the right to:

(a) Freedom and support to access food at any time.

(b) Have visitors of the resident's choosing at any time.

(d) Choose a roommate when sharing a bedroom.

(e) Furnish and decorate the resident's bedroom according to the Residency Agreement.

(f) Have freedom and support to control the resident's schedule and activities.

(g) Privacy in the resident's bedroom.

(7) The licensee may not impose additional fees on consumers, such as finder's fees or non-compete fees.

(8) The licensee may not charge or ask for application fees or non-refundable deposits. Fees to hold a bed are permissible.

(9) The licensee or administrator must give a copy of the signed Agreement to the resident or the resident's representative and must retain the original signed Agreement and any amendments on the premises available for review.

(10) The licensee may not include any illegal or unenforceable provision in an Agreement with a resident and may not ask or require a resident to waive any of the resident's rights or licensee's liability for negligence.

(11) Agreement by the resident or the resident’s representative to the use of any home monitoring devices may not be a condition of admission.

(12) The licensee or administrator must give written notice to a non-Medicaid resident and the resident's family or other representatives 30 calendar days before any general rate increases, additions, or other modifications of the rates. The licensee or administrator is not required to give 30 day written notice if the rate change is due to the resident's increased care or service needs and the agreed upon rate schedule in the resident's Agreement has specified charges for those changes.

(13) The licensee or administrator must enter into a written agreement with a resident who receives Medicaid services if the licensee charges for storage of belongings that remain in the AFH for more than 15 calendar days after the resident has left the home.

(a) The written agreement must be consistent with the licensee's policy with private-pay residents and entered into at the time of the resident's admission or at the time the resident becomes eligible for Medicaid services.

(b) The licensee or administrator must give written notice to the resident and the resident's family or other representatives 30 calendar days before any increases, additions, or other modifications to the charges for storage.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775 & 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 62-2021, amend filed 12/27/2021, effective 01/01/2022
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-050-0710 Refunds

(1) If a resident dies, the licensee may not retain or require payment for more than 15 calendar days after the date of the resident's death, or the time specified in the licensee's Agreement, whichever is less.

(2) If a resident leaves an AFH for medical reasons and the resident or the resident's representative indicates the resident's intent to not return, the licensee may not retain or require payment for more than 15 calendar days after the date the licensee or administrator receives notification from the resident, the resident's representative, or the time specified in the licensee's Agreement, whichever is less.

(3) If a resident who has paid with private funds becomes eligible for Medicaid services, the licensee must accept payment from the Department from the date of eligibility forward as payment in full. The licensee must reimburse the resident or the resident's representative within 30 calendar days after the licensee receives payment from the Department for any private payment received after the resident became eligible for Medicaid services.

(4) The licensee must act in good faith to reduce the charge to a resident who has left the home by seeking a new resident to fill the vacancy.

(5) The licensee must refund any unused advance payment to the resident, or the resident's representative as appropriate, within 30 calendar days after the resident dies or leaves the home.

(6) If the AFH closes or the licensee or administrator gives written notice for the resident to leave, the licensee waives the right to collect any fees beyond the date of closure or the resident's departure, whichever is sooner.

(7) If a resident dies or leaves an AFH due to neglect or abuse at the AFH that is substantiated by a Department investigator, or due to conditions of imminent danger of life, health, or safety, the licensee may not charge the resident beyond the resident's last day in the home.

(8) The refund policies in these rules also apply to refunds for resident moves and transfers as described in OAR 411-050-0760.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730 & 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, 443.880, 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 443.001 - 443.004, 443.705 - 443.825, 443.875, 443.991
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-050-0715 Facility Standards

(1) In order to qualify for or maintain a license, an AFH must comply with these rules.

(2) ACCESSIBILITY.

(a) Interior and exterior areas of the home, including doorways, that may be used by residents must be wide enough, and accessible according to each resident's individual needs, including any mobility equipment used such as a wheelchair or walker.

(b) All interior and exterior stairways must be unobstructed, equipped with handrails on both sides, and appropriate to the condition of the residents. (See also OAR 411-050-0725(4)(c)).

(3) GENERAL CONDITIONS. The building, including the interior and exterior premises, furnishings, patios, decks, and walkways, as applicable, must be clean, in good repair and well maintained.

(a) There must be no accumulation of garbage, debris, rubbish, or offensive odors.

(b) Walls, ceilings, and floors must be of such character to permit washing, cleaning, or painting, as appropriate.

(4) ADDRESS. The address numbers of the AFH must be placed on the home in a position that is legible and clearly visible from the street or road fronting the property. If the home is so situated that the address number is not legible and clearly visible from the road fronting the property, such as when the home is accessed via a lengthy driveway or private access road, then the address numbers must also be posted where the driveway or private access road joins the fronting road. The address numbers must be at least four inches in height, made of reflective material, and contrast with the background.

(5) LIGHTING. Adequate lighting, based on the needs of the occupants, must be provided in each room, stairway, and exit way. Incandescent light bulbs and fluorescent tubes must be protected with appropriate covers.

(6) TEMPERATURE. The heating system must be in working order. Areas of the home used by the residents must be maintained at a comfortable temperature. Minimum temperatures during the day must be not less than 68 degrees, no greater than 85 degrees, and not less than 60 degrees during sleeping hours. Variations from the requirements of this rule must be based on resident care needs or preferences and must be addressed in each resident's care plan.

(a) During times of extreme summer heat, the licensee or administrator must make reasonable effort to keep the residents comfortable using ventilation, fans, or air conditioning. Precautions must be taken to prevent resident exposure to stale, non-circulating air.

(b) If the facility is air-conditioned, the system must be functional, and the filters must be cleaned or changed as needed to ensure proper maintenance.

(c) If the licensee or administrator is unable to maintain a comfortable temperature for the residents during times of extreme summer heat, air conditioning or another cooling system may be required.

(7) COMMON USE AREAS. Common use areas for the residents must be accessible to all residents. There must be at least 150 square feet of common living space and sufficient furniture in the home to accommodate the recreational and socialization needs of all the occupants at one time. Common space may not be in an unfinished basement or garage unless such space was constructed for that purpose or has otherwise been legalized under permit. There may be additional space required if wheelchairs are to be accommodated. An additional 40 square feet of common living space is required for each adult day services individual, room and board tenant, or relative receiving care for remuneration that exceeds the limit of five.

(8) BATHROOMS. Bathrooms must:

(a) Provide individual privacy and have a finished interior with a door that opens to a hall or common-use room. If a resident's bedroom includes a private bathroom, the door for the private bathroom must open to the bedroom. A resident must have direct access to a bathroom without having to walk through another person's bedroom.

(b) Have a mirror, a window that opens or other means of ventilation, and a window covering for privacy.

(d) Have bathtubs, showers, toilets, and sinks in good repair. A sink must be located near each toilet and a toilet and sink must be available for the resident's use on each floor with resident rooms. There must be at least one toilet, one sink, and one bathtub or shower for each six household occupants.

(e) Have hot and cold water at each bathtub, shower, and sink in sufficient supply to meet the needs of the residents.

(f) Have nonporous surfaces for shower enclosures. Glass shower doors, if applicable, must be tempered safety glass, otherwise, shower curtains must be clean and in good condition.

(g) Have non-slip floor surfaces in bathtubs and showers.

(h) Have grab bars for each toilet, bathtub, and shower to be used by the residents for safety.

(i) Have barrier-free access to toilet and bathing facilities.

(j) Have adequate supplies of toilet paper and soap supplied by the licensee. Residents must be provided with individual towels and washcloths that are laundered in hot water at least weekly or more often if necessary. Residents must have appropriate racks or hooks for drying bath linens. If individual hand towels are not provided, roller-dispensed hand towels or paper towels in a dispenser must be provided for the residents' use.

(9) BEDROOMS.

(a) Bedrooms for all household occupants must have:

(A) Been constructed as a bedroom when the home was built or remodeled under permit.

(B) A finished interior with walls or partitions of standard construction that extend from floor to ceiling.

(C) A door that opens directly to a hallway or common use room without passage through another bedroom or common bathroom.

(D) Adequate ventilation, heating, and lighting with at least one window that opens and meets the requirements in OAR 411-050-0720(5).

(E) At least 70 square feet of usable floor space for one resident or 120 square feet for two residents excluding any area where a sloped ceiling does not allow a person to stand upright.

(F) No more than two occupants per room. (See also OAR 411-049-0105 pertaining to a child's bedroom). This rule is not intended to prohibit a child five years of age or younger from occupying their parent's bedroom.

(b) The licensee, any other caregivers, and family members may not sleep in areas designated as living areas or share a bedroom with a resident. This rule is not intended to prohibit a caregiver or other person of the resident's choosing from temporarily staying in the resident's room when required by the resident's condition.

(c) There must be a bed at least 36 inches wide for each resident consisting of a mattress and springs, or equivalent, in good condition. Cots, rollaways, bunks, trundles, daybeds with restricted access, couches, and folding beds may not be used for residents. Each bed must have clean bedding in good condition consisting of a bedspread, mattress pad, two sheets, a pillow, a pillowcase, and blankets adequate for the weather. Waterproof mattress covers must be used for incontinent residents.

(d) Each resident's bedroom must have a separate, private dresser and closet space sufficient for the resident's clothing and personal effects, including hygiene and grooming supplies. A resident must be provided a private, secure storage space to keep and use reasonable amounts of personal belongings. A licensee may not use a resident's bedroom for storage of items, supplies, devices, or appliances that do not belong to the resident.

(e) RESIDENT BEDROOM DOORS.

(A) All resident bedroom doors must have a locking device on the inside of the door, released by a single action.

(B) Each resident shall be provided a key that locks and unlocks only his or her bedroom door.

(C) A master key to all the residents' bedroom door locks must be immediately available to the licensee and all other caregivers in the home.

(f) Drapes or shades for bedroom windows must be in good condition and allow privacy for the residents.

(g) Resident bedrooms must be in close enough proximity to the licensee or caregiver in charge to alert the licensee or caregiver in charge to resident nighttime needs or emergencies, or the bedrooms must be equipped with a functional call bell or intercom within the residents' abilities to operate. Intercoms may not violate the resident's right to privacy and must have the capability of being turned off by the resident or at the resident's request.

(h) Bedrooms used by the licensee, administrator, resident manager, shift caregiver, and substitute caregiver, as applicable, must be in the AFH and must have direct access to the residents through an interior hallway or common use room.

(10) SANITATION.

(a) NON-MUNICIPAL WATER SOURCE. A public water supply must be utilized if available. If a non-municipal water source is used, the licensor, a sanitarian, or a technician from a laboratory accredited for well water testing must collect and test a sample for coliform bacteria annually or as required by the Department. Water testing and any necessary corrective action to ensure water is suitable for drinking must be completed at the licensee's expense. Water testing records must be retained for three years.

(b) Septic tanks or other non-municipal sewage disposal systems must be in good working order.

(c) COMMODES AND INCONTINENCE GARMENTS. Commodes used by residents must be emptied frequently and cleaned daily, or more frequently if necessary. Incontinence garments must be disposed of in closed containers.

(d) LAUNDRY. Before laundering, soiled linens and clothing must be stored in closed containers in an area that is separate from food storage, kitchen, and dining areas. Pre-wash attention must be given to soiled and wet bed linens. Sheets and pillowcases must be laundered at least weekly and more often if soiled.

(e) GARBAGE. Garbage and refuse must be suitably stored in readily cleanable, rodent-proof, covered containers, pending weekly removal.

(f) PESTS. Reasonable precautions must be taken to prevent pests (e.g., ants, cockroaches, other insects, and rodents).

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.735, 443.760 & 443.880
Statutes/Other Implemented: ORS 197.660 - 197.670, 409.050, 410.070, 413.085, 441.373, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 62-2021, amend filed 12/27/2021, effective 01/01/2022
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-050-0720 Safety

(1) FIRE AND LIFE SAFETY. Buildings must meet all applicable state and local building, fire, mechanical, and housing codes for fire and life safety. The home may be inspected for fire safety by the State Fire Marshal's Office, or the State Fire Marshal's designee, at the request of the LLA or the Department using the standards in these rules, as appropriate.

(2) HEAT SOURCES. All heating equipment including, but not limited to, wood stoves, pellet stoves, and fireplaces must be installed in accordance with all applicable state and local building and mechanical codes. Heating equipment must be in good repair, used properly, and maintained according to the manufacturer's or a qualified inspector's recommendations.

(a) A licensee who does not have a permit verifying proper installation of an existing woodstove, pellet stove, or gas fireplace must have it inspected by a qualified inspector, Certified Oregon Chimney Sweep Association member, or Oregon Hearth, Patio, and Barbeque Association member and follow the inspector's recommended maintenance schedule.

(b) Fireplaces must have approved and listed protective glass screens or metal mesh screens anchored to the top and bottom of the fireplace opening.

(c) The LLA may require the installation of a non-combustible, heat-resistant, safety barrier 36 inches around a woodstove to prevent residents with ambulation or confusion problems from coming in contact with the stove.

(d) Unvented, portable oil, gas, or kerosene heaters are prohibited. Portable electric heaters shall be listed and labeled. Sealed electric transfer heaters or electric space heaters with tip-over, shut-off capability may be used when approved by the State Fire Marshal or the State Fire Marshal's designee. A heater must be directly connected to an electrical outlet and may not be connected to an extension cord.

(3) EXTENSION CORDS AND ADAPTORS. Extension cord wiring and multi-plug adaptors may not be used in place of permanent wiring. Listed and labeled re-locatable power strips or taps (RPTs) with circuit breaker protection are permitted for indoor use only and must be installed and used in accordance with the manufacturer's instructions. If RPTs are used, the RPT must be directly connected to an electrical outlet, never connected to another RPT (known as daisy-chaining or piggy-backing), and never connected to an extension cord.

(4) LOCKS AND ALARMS. Hardware for all exit doors and interior doors must be readily visible, have simple hardware that may not be locked against exit, and have an obvious method of operation.

(a) Hasps, sliding bolts, hooks and eyes, slide chain locks, and double key deadbolts are not permitted.

(b) If a home has a resident with impaired judgment who is known to wander away, the home must have an activated alarm system to alert a caregiver of the resident's unsupervised exit.

(5) BEDROOM WINDOWS. Bedrooms must have at least one window or exterior door that leads directly outside and is approved for emergency escape or rescue. The exit window or door must readily open from the inside without special tools, and provide a clear, unobstructed opening of not less than 821 square inches (5.7 sq. ft.), with the least dimensions not less than 24 inches in height or 20 inches in width. If the interior sill height of the window is more than 44 inches from the floor level, approved steps or other aids to the window exit that the occupants are capable of using must be provided. Windows with a clear opening of not less than 5.0 square feet or 720 square inches with interior sill heights of no more than 44 inches above the floor may be accepted when approved by the State Fire Marshal or the State Fire Marshal's designee.

(6) CONSTRUCTION. Construction must be in compliance with OAR 411-050-0715(2) as well as all applicable local business license, zoning, building, and housing codes.

(a) STRUCTURAL CHANGES. The licensee must notify the LLA, in writing, at least 15 calendar days before any remodeling, renovations, or structural changes in the home that require a building permit. Such activity must comply with local building, sanitation, utility, and fire code requirements applicable to a single-family dwelling (see ORS 443.760(1)).

(b) The licensee must forward all required permits, inspections and evacuation plan as described in OAR 411-050-0725(2), and a revised floor plan as described in (16) of this rule, to the LLA within 30 calendar days of completion.

(c) MANUFACTURED HOMES. A manufactured home (formerly mobile homes) must have been built in 1976 or later and designated for use as a home rather than a travel trailer. The manufactured home must have a manufacturer’s label permanently affixed on the unit itself that states the manufactured home meets the requirements of the Department of Housing and Urban Development (HUD). The required label must read as follows:

(A) If such a label is not evident and the licensee believes the manufactured home meets the required specifications, the licensee must take the necessary steps to secure and provide verification of compliance from the home’s manufacturer.

(B) Manufactured homes built in 1976 or later meet the flame spread rate requirements and do not have to have paneling treated with a flame retardant coating.

(7) FIRE EXTINGUISHERS. At least one fire extinguisher with a minimum classification of 2-A:10-B:C must be mounted where they are easily visible and readily accessible for use on each floor, including basements.

(a) Fire extinguishers shall be inspected by the licensee or designated staff at least once per calendar month.

(b) Service personnel providing or conducting annual maintenance on portable fire extinguishers shall possess a valid certificate as outlined in the fire code.

(c) Documentation of monthly and annual inspections for each fire extinguisher shall be maintained and made available upon request.

(8) CARBON MONOXIDE AND SMOKE ALARMS.

(a) All carbon monoxide alarms and smoke alarms must contain a sounding device or be interconnected to other alarms to provide, when activated an alarm that is audible in all sleeping rooms. The alarms must be loud enough to wake occupants when all bedroom doors are closed. Intercoms and room monitors may not be used to amplify alarms.

(b) The licensee or administrator must test all carbon monoxide alarms and smoke alarms in accordance with the manufacturer's instructions at least monthly (per NFPA 72). Testing must be documented in the facility records. The licensee or administrator must maintain carbon monoxide alarms, smoke alarms, and fire extinguishers in functional condition. If there are more than two violations in maintaining battery operated alarms in working condition, the Department may require the licensee to hard wire the alarms into the electrical system.

(c) CARBON MONOXIDE ALARMS. Carbon monoxide alarms must be listed as complying with ANSI/UL 2034 and must be installed and maintained in accordance with the manufacturer's instructions. Carbon monoxide alarms must be installed within 15 feet of each bedroom at the height recommended by the manufacturer.

(A) If bedrooms are in multi-level homes, carbon monoxide alarms must be installed on each level, including the basement.

(B) Carbon monoxide alarms may be hard-wired, plug-in, or battery operated. Hard wired and plug-in alarms must be equipped with a battery back-up. Battery operated carbon monoxide alarms must be equipped with a device that warns of a low battery.

(C) A bedroom used by a hearing-impaired occupant who may not hear a regular carbon monoxide alarm must be equipped with an additional carbon monoxide alarm that has visual or vibrating capacity.

(d) SMOKE ALARMS. Smoke alarms shall be installed in each sleeping room, adjacent hallways, common living areas, basements and in multi-level homes at the top of each stairway.

(A) Ceiling placement of smoke alarms is recommended.

(B) Battery operated smoke alarms or hard-wired smoke alarms with a battery backup must be equipped with a device that warns of a low battery.

(C) A bedroom used by a hearing-impaired occupant who may not hear a regular smoke alarm must be equipped with an additional smoke alarm that has visual or vibrating capacity.

(9) COMBUSTIBLES AND FIREARMS. Flammables, combustible liquids, and other combustible materials must be safely and properly stored in the original, properly labeled containers or safety containers and secured in areas to prevent tampering by residents or vandals.

(a) Oxygen and other gas cylinders in service or in storage, must be adequately secured to prevent the cylinders from falling or being knocked over.

(b) No smoking signs must be visibly posted where oxygen cylinders are present.

(c) Firearms must be stored, unloaded, in a locked cabinet. The firearms cabinet must be in an area of the home that is not accessible to the residents.

(d) Ammunition must be secured in a locked area separate from the firearms.

(10) HAZARDOUS MATERIALS. Cleaning supplies, poisons, insecticides, and other hazardous materials must be properly stored in the original container, or in a container manufactured for the type of product. The containers must be properly labeled and kept in a safe area that is not accessible to residents, or near food preparation areas, food storage areas, dining areas, or medications.

(11) PETS AND OTHER ANIMALS. Sanitation for household pets and other domestic animals on the premises must be adequate to prevent health hazards. Proof of rabies vaccinations and any other vaccinations that are required for the pet by a licensed veterinarian must be maintained on the premises. Pets not confined in enclosures must be under control and not present a danger to the residents or guests.

(12) FIRST AID. Current, basic first-aid supplies and a first-aid manual must be readily available in the home.

(13) WATER TEMPERATURE. A resident who is unable to safely regulate the water temperature must be supervised.

(14) INFECTION CONTROL. Masking protocols will be determined by the Department. Other standard and enhanced precautions for infection control must be followed in resident care as directed by the:

(a) Oregon Health Authority's infection control staff at http://www.oregon.gov/oha/PH/DISEASESCONDITIONS/COMMUNICABLEDISEASE/HAI/pages/index.aspx; or

(b) Local county health department staff.

(15) MEDICAL SHARPS. Precautions must be taken to prevent injuries caused by needles, scalpels, and other sharp instruments or devices during procedures. All sharps, including, but not limited to needles and lancets, must be disposed of in approved sharps containers that:

(a) Are puncture-resistant.

(b) Are leak-proof.

(d) Have a lid, flap, door, or other means of closing the container and inhibits the ability to remove sharps from the container.

(e) Are not overfilled.

(f) Are stored in an upright position in a secure location as close as practical to the use area. The container must not be accessible to residents or not close to any food preparation or food storage area.

(g) Must be closed immediately once full and properly disposed of within 10 days, according to the home's waste management company's or pharmacy's instructions.

(16) FLOOR PLAN. The licensee must develop a current and accurate floor plan that indicates:

(a) The size of rooms.

(b) Which bedrooms are to be used by residents, the licensee, caregivers, and for adult day services and room and board tenants, as applicable.

(d) The location of wheelchair ramps.

(e) The location of all fire extinguishers, smoke alarms, and carbon monoxide alarms.

(f) The planned evacuation routes, initial point of safety, and final point of safety.

(g) Any designated smoking areas in or on the AFH's premises.

(17) SAFETY BARRIERS. Patios, decks, walkways, swimming pools, hot tubs, spas, saunas, water features, fire pits, stairways, and open bodies of water, as applicable, must be equipped with safety barriers designed to reasonably prevent injury to current residents of the home. Resident access to or use of swimming or other pools, hot tubs, spas, saunas, fire pits, or any open bodies of water on the premises must be supervised.

(18) SMOKING. The licensee must identify the home's smoking policies in the home's Residency Agreement. If smoking is allowed in or on the premises of the home:

(a) The Residency Agreement must restrict smoking to designated areas, and prohibit smoking in:

(A) Any bedroom, including that of the residents, licensee, administrator, resident manager, any other caregiver, occupant, or visitor.

(B) Any upholstered furniture with cushions or pillows.

(D) Anywhere flammable materials are stored.

(b) Ashtrays of noncombustible material and safe design must be provided in areas where smoking is permitted.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775 & 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 23-2022, amend filed 06/02/2022, effective 06/08/2022
APD 65-2021, temporary amend filed 12/28/2021, effective 01/01/2022 through 06/29/2022
APD 62-2021, amend filed 12/27/2021, effective 01/01/2022
APD 57-2021, temporary amend filed 12/10/2021, effective 12/15/2021 through 03/29/2022
APD 42-2021, temporary amend filed 09/30/2021, effective 10/01/2021 through 03/29/2022
APD 19-2020, amend filed 06/16/2020, effective 06/24/2020
APD 51-2019, temporary amend filed 12/19/2019, effective 01/01/2020 through 06/28/2020
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-050-0725 Emergency Preparedness

(1) ORIENTATION TO EMERGENCY PROCEDURES. Within 24 hours of arrival, any new resident or caregiver must be shown how to respond to a smoke and carbon monoxide alarm, shown how to participate in an emergency evacuation drill, and receive an orientation to basic fire safety, including the location of designated smoking areas, if applicable. New caregivers must also be oriented in how to conduct an evacuation.

(2) EVACUATION PLAN. An emergency evacuation plan must be developed and revised as necessary to reflect the current condition of the residents in the home. The evacuation plan must be rehearsed with all occupants.

(3) EVACUATION DRILL. An evacuation drill must be held at least once every 90 calendar days, with at least one evacuation drill per year conducted during sleeping hours.

(a) The evacuation drill must be clearly documented, signed by the caregiver conducting the drill, and maintained according to OAR 411-050-0745(1)(h).

(b) The licensee and all other caregivers must be able to demonstrate the ability to evacuate all occupants from the facility to the initial point of safety within three minutes or less, and to the final point of safety within an additional two minutes or less. The initial and the final points of safety must both have direct access to a public sidewalk or street and may not be in the backyard of a home unless the backyard has direct access to a public street or sidewalk.

(A) The initial point of safety must be exterior to and a minimum of 25 feet away from the structure.

(B) The final point of safety must be a minimum of 50 feet away from the structure.

(c) SPRINKLERS. When an AFH has a sprinkler system throughout the home that is maintained according to the adopted codes and standards, all occupants may have up to five minutes to evacuate to the initial point of safety, and two minutes to further evacuate occupants to the final point of safety as indicated in (b)(A) of this section.

(4) RESIDENT PLACEMENT.

(a) A resident, who is non-ambulatory, has impaired mobility, is cognitively impaired, or is not capable of self-preservation, may not be placed in a bedroom on a floor without a second ground level exit.

(b) A resident with a bedroom above or below the ground floor must be able to demonstrate their capability for self-preservation.

(c) STAIRS. Stairs must have a riser height of between 6 to 8 inches and tread width of between 8 to 10.5 inches. Lifts or elevators are not an acceptable substitute for a resident's capability to ambulate stairs. (See also section 411-050-0720(6)).

(5) EXIT WAYS. All exit ways must be barrier free and the corridors and hallways must be a minimum of 36 inches wide or as approved by the State Fire Marshal or the State Fire Marshal's designee.

(a) Interior doorways used by the residents must be wide enough to accommodate residents' wheelchairs and walkers, and beds that are used by residents for evacuation purposes.

(b) Any bedroom window or door identified as an exit must remain free of obstacles that would interfere with evacuation or rescue.

(c) There must be a second safe means of exit from all sleeping rooms. A caregiver whose sleeping room is above the first floor may be required to demonstrate at the time of licensure, renewal, or inspection, how the premises will be evacuated from the caregiver's sleeping room using the secondary exit.

(d) There must be at least one wheelchair ramp from a minimum of one exterior door if an occupant of the home is non-ambulatory. Wheelchair ramps must comply with the U.S. Department of Justice's 2010 Americans with Disabilities Act (ADA) Standards for Accessible Design (https://www.ada.gov/regs2010/2010ADAStandards/2010ADAstandards.htm#c4, Chapter 4, Accessible Routes, Section 405, Ramps).

(6) FLASHLIGHT. There must be at least one plug-in, rechargeable flashlight in good functional condition available on each floor of the home for emergency lighting.

(7) EMERGENCY PREPAREDNESS PLAN. A licensee or administrator must develop and maintain a written emergency preparedness plan for the protection of all occupants in the home in the event of an emergency or disaster.

(a) The written emergency plan must:

(A) Include an evaluation of potential emergency hazards including, but not limited to:

(i) Prolonged power failure or water or sewer loss.

(ii) Fire, smoke, or explosion.

(iii) Structural damage.

(iv) Hurricane, tornado, tsunami, volcanic eruption, flood, or earthquake.

(v) Chemical spill or leak.

(vi) Pandemic.

(B) Include an outline of the caregiver's duties during an evacuation.

(i) Access to medical records necessary to provide services and treatment.

(ii) Access to pharmaceuticals, medical supplies, and equipment during and after an evacuation.

(iii) Behavioral support needs.

(D) Include provisions and supplies sufficient to shelter in place for a minimum of three days without electricity, running water, or replacement staff.

(E) Planned relocation sites.

(b) The licensee or administrator must notify the Department or the LLA of the home's status in the event of an emergency that requires evacuation and during any emergent situation when requested.

(c) The licensee or administrator must re-evaluate the emergency preparedness plan at least annually and whenever there is a significant change in the home.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775 & 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 57-2024, amend filed 09/23/2024, effective 09/25/2024
APD 14-2024, temporary amend filed 03/28/2024, effective 04/01/2024 through 09/27/2024
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-050-0730 Temporary rule language in effect until 01/27/2027. Operational Standards

(1) A licensee must own, rent, or lease the home to be licensed, however, the LLA may grant a variance to churches, hospitals, non-profit associations, or similar organizations. If a licensee rents or leases the premises where the AFH is located, the licensee may not enter into a contract that requires anything other than a flat rate for the lease or rental. The licensee of a building where an AFH is located may not allow the owner, landlord, or lessor to interfere with the admission, transfer, or voluntary or involuntary move of any resident in the AFH unless the owner, landlord, or lessor is named on the license.

(2) Each AFH licensee must comply with:

(a) All applicable local business license, zoning, building, and housing codes.

(b) The Fair Housing Act.

(d) Federal regulations governing HCB Settings (OAR chapter 411, division 004).

(3) ZONING. AFHs are subject to applicable sections of ORS 197.660 to 197.670.

(4) COOPERATION AND ACCESS. The licensee or administrator must cooperate with the Department, Centers for Medicare and Medicaid Services (CMS), Oregon Health Authority (OHA) and local licensing and investigative personnel in inspections, complaint investigations, planning for resident care, application procedures, and other necessary activities.

(a) Department, CMS, OHA, local licensing, and investigative personnel must be provided access to all resident and facility records and may conduct private interviews with residents.

(b) The State Long-Term Care Ombudsman must be provided access to all resident and facility records. Deputy Ombudsman and Certified Ombudsman Volunteers must be provided access to facility records, and with written permission from the resident or the resident's legal representative, may have access to resident records. (See OAR 114-005-0030).

(5) CONFIDENTIALITY. Licensees and AFH staff must keep personal and healthcare information related to residents confidential and private as required by all applicable confidentiality and privacy laws, except as may be necessary in the planning or provision of care or medical treatment, or related to an inspection, investigation, or sanction action under these rules. Applicable confidentiality and privacy laws include, but are not limited to:

(a) For medical information:

(A) Health Insurance Portability and Accountability Act (HIPAA).

(B) ORS 192.553 to 192.581, confidentiality of protected health information.

(b) Unless required by state or federal law, a care facility shall not disclose any personally identifiable information. This applies to all resident records including records regarding:

(A) A resident’s sexual orientation;

(B) Whether a resident is LGBTQIA2S+;

(D) A resident’s human immunodeficiency virus (HIV) status.

(c) The AFH shall take appropriate steps to minimize the likelihood of inadvertent or accidental disclosure of information described in subsection (b) of this section to other residents, visitors or AFH caregivers, except to the minimum extent necessary for AFH caregivers to perform their duties. The AFH must notify the resident or resident’s representative if the AFH inadvertently or accidentally discloses such information to unauthorized persons.

(d) For resident records generally:

(A) ORS 410.150, Use of files, confidentiality, and privileged communications.

(B) OAR chapter 411, division 005, Privacy of protected information.

(6) TRANSPORTATION. A licensee or administrator must arrange for or provide appropriate transportation for residents when needed.

(7) COMMUNICATION.

(a) Applicants for an initial license must obtain and provide to the LLA a current, active business address for electronic mail before obtaining a license.

(b) A licensee or administrator must notify the LLA within 24 hours upon a change in the home's business address for electronic mail.

(c) A licensee or administrator must notify the LLA, the residents and the resident's family members, representatives, and case managers, as applicable, of any change in the telephone number for the licensee or the AFH within 24 hours of the change.

(d) A licensee or administrator must notify the LLA in writing before any change of the licensee's residence or mailing address.

(e) Any proposed change to policies and procedures must be submitted to the LLA for review and approval, as required by OAR 411-049-0135.

(8) MEALS.

(a) Three nutritious meals must be served daily at times consistent with those in the community. Each meal must include food from the basic food groups according to the United States Department of Agriculture (USDA's) My Plate and include fresh fruit and vegetables when in season.

(b) Meals must reflect consideration of a resident's preferences and cultural and ethnic background. This does not mean the licensee or administrator must prepare multiple, unique meals for the residents at the same time.

(c) A schedule of mealtimes and menus for the coming week must be prepared and posted weekly in a location accessible to residents and families.

(A) Meal substitutions for scheduled menu items in compliance with (8)(a) of this rule are acceptable and must be documented on, or attached to, the weekly menu.

(B) The licensee or administrator must maintain the weekly menus for a minimum of the most recent six months during which the home has conducted business.

(C) The licensee or administrator must support the resident's right to access food at any time. Limitations may only be used when there is a health or safety risk, as stated in OAR 411-051-0105, and when a written informed consent is obtained. Licensees have until June 30, 2020 to fully comply with this HCB Settings requirement, OAR 411-051-0105(3).

(D) If a resident misses a meal at a scheduled time, an alternative meal must be made available.

(d) There must be no more than a 14-hour span between the evening and morning meals. Snacks do not substitute for a meal in determining the 14-hour span. Nutritious snacks and liquids must be offered to fulfill each resident's nutritional requirements.

(e) Food may not be used as an inducement to control the behavior of a resident.

(f) Home-canned foods must be processed according to the guidelines of the Oregon State University Extension Service. Freezing is the most acceptable method of food preservation. Milk must be pasteurized.

(g) Special consideration must be given to a resident with chewing difficulties or other eating limitations. Special diets must be followed, as prescribed in writing, by the resident's physician, nurse practitioner, or physician assistant.

(h) Adequate storage must be available to maintain food at a proper temperature, including a properly working refrigerator. Storage and food preparation areas must be free from food that is spoiled or expired.

(i) The household utensils, dishes, glassware, and household food may not be stored in bedrooms, bathrooms, or living areas.

(j) Meals must be prepared and served in the home where the residents live. Payment for meals eaten away from the home for the convenience of the licensee or administrator (e.g., restaurants, senior meal sites) is the responsibility of the licensee.

(A) Meals and snacks, as part of an individual recreational outing by choice, are the responsibility of the resident.

(B) Payment for food beyond the required three meals and snacks are the responsibility of the resident.

(k) Utensils, dishes, and glassware must be washed in hot soapy water, rinsed, and stored to prevent contamination. A dishwasher with a sani-cycle is recommended.

(l) Food preparation areas and equipment, including utensils and appliances, must be clean, free of offensive odors, and in good repair.

(9) TELEPHONE.

(a) The home must have a working landline and corded telephone with a listed number that is separate from any other number the home has, such as, but not limited to, internet or fax lines, unless the system includes features that notify the caregiver of an incoming call, or automatically switches to the appropriate mode. If a licensee has a caller identification service on the home number, the blocking feature must be disabled to allow incoming calls to be received unhindered. A licensee may have only one phone line if the phone line complies with the requirements of these rules. Voice over internet protocol (VoIP), voice over broadband (VoBB), or cellular telephone service may not be used in place of a landline.

(b) The licensee must make a telephone that is in good working order available and accessible for the residents use with reasonable accommodation for privacy during telephone conversations. A resident with a hearing impairment, to the extent the resident may not hear a normal telephone conversation, must be provided with a telephone that is amplified with a volume control or a telephone that is hearing aid compatible.

(c) Restrictions on the use of the telephone by the residents must be specified in the written Residency Agreement and may not violate the residents' rights. Individual restrictions must be well documented in the resident's care plan.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 441.122, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, 443.790 & 443.880
Statutes/Other Implemented: ORS 197.660 - 197.670, 409.050, 410.070, 413.085, 441.114, 441.373, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 20-2026, temporary amend filed 07/29/2026, effective 08/01/2026 through 01/27/2027
APD 57-2024, amend filed 09/23/2024, effective 09/25/2024
APD 14-2024, temporary amend filed 03/28/2024, effective 04/01/2024 through 09/27/2024
APD 16-2022, temporary suspends temporary APD 65-2021, filed 03/18/2022, effective 03/21/2022 through 06/29/2022
APD 65-2021, temporary amend filed 12/28/2021, effective 01/01/2022 through 06/29/2022
APD 62-2021, amend filed 12/27/2021, effective 01/01/2022
APD 57-2021, temporary amend filed 12/10/2021, effective 12/15/2021 through 03/29/2022
APD 19-2020, amend filed 06/16/2020, effective 06/24/2020
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-050-0735 Staffing Standards

(1) The licensee or administrator must have qualified caregivers, including awake caregivers as necessary, sufficient in number to meet the 24-hour needs of each resident in addition to caring for any children or relatives beyond the license capacity of the AFH.

(2) A licensee or administrator may not employ a resident manager, floating resident manager, or shift caregiver who does not meet or exceed the qualifications and training requirements as described in OAR 411-049-0125 and classification standards for the AFH as described in and OAR 411-049-0105.

(3) A licensee or administrator may not employ or allow any caregiver to train or work in the home who is on either of the Exclusion Lists.

(a) A licensee or administrator must verify the administrator, resident manager, floating resident manager, and shift caregivers, as applicable, are not listed on either of the Exclusion Lists prior to employment.

(b) Verification of checking the Exclusion Lists must be clearly documented in the facility records.

(4) EMPLOYMENT APPLICATION. An application for employment in any capacity in an AFH must include a question asking whether the person applying for employment has been found to have committed abuse. Employment applications must be retained for at least three years.

(5) STAFFING WITH SUBSTITUTE CAREGIVERS. A Substitute caregiver routinely left in charge of an AFH for any period that exceeds 48 hours is required to meet the education, experience, and training requirements of a resident manager as specified in this rule.

(a) A licensee or administrator may not leave a substitute caregiver or concurrent substitute caregivers routinely in charge of the home for any period that exceeds 48 hours within one calendar week.

(b) This requirement is not intended to prevent a qualified substitute caregiver from providing relief care in the absence of the primary caregiver, such as for a one or two-week vacation.

(c) If a licensee has demonstrated non-compliance with one or more of these rules, the Department may require, by condition, additional training in the deficient area.

(6) ABSENCE OF A PRIMARY CAREGIVER. If a primary caregiver or a shift caregiver is absent from the home for 10 days or more, the licensee or administrator must notify the LLA, in writing, at least seven days before the primary caregiver's absence or immediately upon knowing of the absence. Notification must state the reason for and anticipated length of the absence. The licensee or administrator must submit a staffing plan to the LLA that demonstrates coverage to meet the needs of the residents during the primary caregiver's absence.

(7) CHANGE OF PRIMARY CAREGIVER OR ADMINISTRATOR. If a primary caregiver, administrator, or a shift caregiver changes during the period the license covers, the licensee or administrator must notify the LLA within 24 hours and identify who is providing care.

(a) If a licensee or administrator assumes the role as the primary caregiver or shift caregiver when there has been a change in primary caregiver, the licensee or administrator must submit an updated plan of 24-hour coverage to the LLA within seven days.

(b) If an administrator, resident manager, floating resident manager, or shift caregiver changes, the licensee or administrator must submit a request for a change of administrator, resident manager, floating resident manager, or shift caregiver, as applicable, to the LLA along with:

(A) The Department's supplemental application form (SDS 448B) completed by the administrator applicant, resident manager applicant, floating resident manager applicant, or shift caregiver applicant;

(B) A completed Health History and Physician or Nurse Practitioner's Statement (form SDS 903) for the new applicant;

(D) A $10 non-refundable fee.

(c) When there is a change in primary caregiver, an approved floating resident manager may assume the responsibilities of the live-in, primary caregiver until a new primary caregiver is employed. If a new primary caregiver is not employed within 60 calendar days, the floating resident manager must be designated as the home's resident manager and the licensee or administrator must notify the LLA of the change in status.

(d) The LLA shall issue a revised license when there is a change in a primary caregiver who is identified on the license.

(8) UNEXPECTED AND URGENT STAFFING NEED. If the LLA determines an unexpected and urgent staffing need exists, the LLA may authorize a person who has not completed the Department's current Ensuring Quality Care Course and passed the current examination to act as a resident manager or shift caregiver until training and testing are completed, or for 60 calendar days, whichever period is shorter. The licensee or administrator must notify the LLA of the unexpected and urgent staffing need in writing and satisfactorily demonstrate:

(a) The licensee's inability to live in the home and act as the primary caregiver;

(b) The licensee's inability to find a qualified administrator, resident manager or shift caregiver, as applicable; and

(c) The proposed staff person is 21 years of age and meets the requirements of a substitute caregiver for the AFH as described in OAR 411-049-0105 and 411-049-0125.

(9) SUCCESSION PLAN. The licensee or administrator must have a written succession plan or back-up provider agreement (APD 0350), addressing care and services for residents in the event that the licensee or administrator is unable to fulfill their duties in the AFH. The succession plan or completed (APD 0350) form must be:

(a) Reviewed by the LLA.

(b) Updated and submitted to the LLA within three business days of any changes.

(10) RESPONSIBILITY.

(a) A licensee is responsible for the supervision, training, and overall conduct of all caregivers, family members, and friends when acting within the scope of their employment, duties, or when present in the home.

(b) A current copy of the administrative rules, OAR chapter 411, division 49, 50, 51, and 52 must be readily accessible to all caregivers in the AFH.

(11) SEXUAL ABUSE. Sexual abuse, as defined in OAR 411-020-0002 (Adult Protective Services) is prohibited.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, 443.790 & 443.880
Statutes/Other Implemented: ORS 197.660 - 197.670, 409.050, 410.070, 413.085, 441.373, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 62-2021, amend filed 12/27/2021, effective 01/01/2022
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-050-0740 Foreclosure

(1) A licensee must provide written notification to the LLA within 10 calendar days after receipt of any notice of default, or any notice of potential default, with respect to a real estate contract, trust deed, mortgage, or other security interest affecting any property occupied or used by the licensee.

(2) The licensee must provide a copy of the notice of default or warning of potential default to the LLA.

(3) The licensee must provide written updates to the LLA at least every 30 days until the default or warning of potential default has been resolved and no additional defaults or potential defaults have been declared and no additional warnings have been issued. Written updates must include:

(a) The current status on what action has been or is about to be taken by the licensee with respect to the notice received.

(b) The action demanded or threatened by the holder of the security interest.

(4) The licensee must provide written notification within 24 hours to the LLA upon final resolution of the matters leading up to or encompassed by the notice of default or the notice warning of potential default.

(5) If the subject default property is licensed as an AFH, the licensee must provide written notification of the following within 24 hours to the LLA, and all the residents and the residents' representatives, if applicable, regarding:

(a) The filing of any litigation regarding such security interest, including the filing of a bankruptcy petition by or against the licensee or an entity owning any property occupied or used by the licensee.

(b) The entry of any judgment with respect to such litigation.

(c) The passing of the date 40 days before any sale scheduled pursuant to the exercise of legal rights under a security interest, or a settlement or compromise related thereto, of the licensee's property or property occupied or used by the licensee.

(d) The sale, pursuant to the exercise of legal rights under a security interest, or a settlement or compromise related thereto, of the licensee's property or property occupied or used by the licensee.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742 & 443.760, 443.767, 443.775, 443.790, 443.880
Statutes/Other Implemented: ORS 197.660 - 197.670, 409.050, 410.070, 413.085, 441. 373, 443.001 - 443.004 & 443.705 - 443.825, 443.875, 443.991
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-050-0745 Temporary rule language in effect until 01/27/2027. Records - Facility

(1) FACILITY RECORDS. Completed facility records must be kept current, maintained in the AFH, and made available for review upon request. Facility records include, but are not limited to:

(a) Proof the licensee and all subject individuals have a background check approved by the Department as required by OAR 411-049- 0120.

(b) By October 18, 2021, AFH licensees must comply with vaccination requirements for COVID-19 as prescribed in OAR 333-019-1010. Licensees must maintain proof of vaccination or documentation of a medical or religious exception as required in OAR 333-019-1010(4).

(c) Proof the licensee and all other caregivers have met and maintained the minimum qualifications at each home where they train or work, as required by OAR 411-049-0125, including:

(A) Proof of required continuing education. Documentation must include the date of each training, subject matter, name of agency or organization providing the training, and number of Department-approved classroom hours.

(B) Completed certificates to document the substitute caregivers' completion of the Department's Caregiver Preparatory Training Study Guide and Workbook and to document the administrator, resident manager, floating resident manager, and shift caregivers, as applicable, completion and passing of the Department's Ensuring Quality Care Course and examination.

(C) Documentation of orientation to the AFH on the Department's form (APD 0349) for the administrator, resident manager, floating resident manager, shift caregivers, and substitute caregivers, as applicable.

(D) The licensee must maintain copies of all caregiver's certificates of completion as part of the AFH facility records as required in OAR 411-050-0745.

(E) Employment applications and the names, addresses, and telephone numbers of all caregivers employed or used by the licensee.

(F) Verification that all caregivers are not listed on either of the Exclusion Lists.

(G) Verification that all caregivers have completed LGBTQIA2S+ training as required in OAR 411-049-0125.

(H) Verification that all caregivers have completed Home and Community-Based Services (HCBS) training. Documentation must address:

(i) Initial HCBS training prior to beginning job duties as required in OAR 411-049-0125(2).

(ii) Annual HCBS training as required in OAR 411-049-0125(10).

(d) Copies of notices sent to the LLA pertaining to changes in the resident manager, floating resident manager, shift caregiver, or other primary caregiver.

(e) Proof of required vaccinations for animals on the premises.

(f) Well water tests, if required, according to OAR 411-050-0715(10). Test records must be retained for a minimum of three years.

(g) Residency Agreements with all residents and, if applicable, specialized contracts with the Department, and tenancy agreements with room and board tenants.

(h) Records of evacuation drills according to OAR 411-050-0725, including the date, time of day, evacuation route, length of time for evacuation of all occupants, names of all residents and occupants, and names of residents and occupants that required assistance.

(i) Records of monthly fire extinguisher inspection, smoke alarm and carbon monoxide alarm testing.

(j) Succession Plan or the Department's current Adult Foster Home Back-Up Agreement form (APD 350) completed by the current back-up provider and the licensee, as stated in OAR 411-049-0135(1)(q).

(k) Documentation the licensee confirmed the RN has a valid, unencumbered Oregon license on the OSBN website at: https://osbn.oregon.gov/OSBNVerification/Default.aspx.

(l) Maintain a copy of all policies and procedures approved by the LLA as required by OAR 411-049-0135.

(m) Falsifying records or causing another to do so shall result in issuance of a mandatory civil penalty as described in OAR 411-052-0025(2).

(n) Excluding menus as required in OAR 411-050-0730(8), facility records must be maintained a minimum of three years.

(2) REQUIRED POSTED ITEMS. The following items must be posted in one location in the entryway or other equally prominent place in the home where residents, visitors, and others may easily read them:

(a) The AFH license.

(b) Conditions attached to the license, if any.

(d) The AFH Resident's Rights and Freedoms form (APD 0305).

(e) LGBTQIA2S+ and HIV Protections and the LGBTQIA2S+ and HIV Nondiscrimination Notice, as described in OAR 411-049-0135(1)(i), must be posted in all places and on all materials where that notice or those written materials are posted.

(f) The home's policies as stated in the current Residency Agreement that has been reviewed for compliance with these rules by the LLA.

(g) The Department's procedure for making complaints (SDS 0519).

(h) The Long-Term Care Ombudsman poster.

(i) The Department's inspection forms identifying the number and type of violations, if any, including how corrections were made since the last annual inspection.

(j) The Department's notice pertaining to the use of any intercoms and monitoring devices that may be used in the AFH.

(k) A weekly menu according to OAR 411-050-0730(8).

(3) POST BY TELEPHONE. The following emergency contacts must be readily visible and posted by a central telephone in the AFH:

(a) The contact number for the individual named in back-up provider agreement or succession plan, who has agreed to respond in person in the event of an emergency.

(b) The emergency contact number for the licensee or administrator.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 441.122, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, 443.790 & 443.880
Statutes/Other Implemented: ORS 197.660 - 197.670, 409.050, 410.070, 413.085, 441.112, 441.114, 441.373, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 20-2026, temporary amend filed 07/29/2026, effective 08/01/2026 through 01/27/2027
APD 32-2024, amend filed 06/21/2024, effective 07/01/2024
APD 11-2024, temporary amend filed 03/28/2024, effective 04/01/2024 through 07/06/2024
APD 2-2024, temporary amend filed 01/08/2024, effective 01/09/2024 through 07/06/2024
APD 23-2022, amend filed 06/02/2022, effective 06/08/2022
APD 16-2022, temporary amend filed 03/18/2022, effective 03/21/2022 through 06/29/2022
APD 65-2021, temporary amend filed 12/28/2021, effective 01/01/2022 through 06/29/2022
APD 62-2021, amend filed 12/27/2021, effective 01/01/2022
APD 57-2021, temporary amend filed 12/10/2021, effective 12/15/2021 through 03/29/2022
APD 42-2021, temporary amend filed 09/30/2021, effective 10/01/2021 through 03/29/2022
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-050-0750 Records - Resident

(1) An individual resident record must be developed, kept current, and readily accessible on the premises of the home for each individual admitted to the AFH. The record must be legible and kept in an organized manner so as to be utilized by staff.

(2) The record must contain the following information:

(a) A complete initial screening assessment and general information form (SDS 902) as described in OAR 411-051-0110.

(b) Documentation on form (SDS 913) that the licensee or administrator has informed private-pay residents of the availability of a long-term care assessment.

(c) Documentation on form (SDS 0342A) that the licensee or administrator has oriented the resident to emergency evacuation procedures as described in OAR 411-050-0725(1).

(d) Documentation that the licensee or administrator has informed all residents of the right to formulate an Advance Directive.

(e) FINANCIAL INFORMATION:

(A) Detailed records and receipts, if the licensee manages or handles a resident's money. The Resident Account Record (form SDS 713) or other expenditure forms may be used if the licensee manages or handles a resident's money. The record must show amounts and sources of funds received and issued to, or on behalf of, the resident and be initialed by the person making the entry. Receipts must document all deposits and purchases of $5 or more made on behalf of a resident.

(B) Residency Agreement signed and dated by the resident or the resident's representative may be kept in a separate file, but must be made available for inspection by the LLA.

(f) Medical and legal information, including, but not limited to:

(A) Medical history, if available.

(B) Current prescribing practitioner orders.

(D) Completed medication administration records retained for at least the last six months or from the date of admission, whichever is less. (Older records may be stored separately).

(E) Copies of Guardianship, Conservatorship, Advance Directive for Health Care, Power of Attorney, and Physician's Order for Life Sustaining Treatment (POLST) documents, as applicable.

(g) A complete, accurate, and current care plan.

(h) Documentation that supports or eliminates any individually-based limitation, as described in OAR 411-051-0115.

(i) A copy of the current house policies, as identified in the current Residency Agreement, the current Resident's Bill of Rights, LGBTQIA2S+ Protections, and a copy of the home’s nondiscrimination policy, signed and dated by the resident or the resident's representative.

(j) SIGNIFICANT EVENTS AND INCIDENTS. A written report (using form SDS 344 or its equivalent) of all significant incidents relating to the health or safety of the resident, including how and when the incident occurred, who was involved, what action was taken by the licensee and staff, as applicable, and the outcome to the resident. A copy of the report must be sent to the resident’s representative, and case manager, if applicable.

(k) NARRATIVE OF RESIDENT'S PROGRESS. Narrative entries describing each resident's progress must be documented at least weekly and maintained in each resident's individual record. All entries must be signed and dated by the person writing them.

(l) Non-confidential information or correspondence pertaining to the care needs of the resident.

(m) Falsifying records or causing another to do so shall result in issuance of a mandatory civil penalty as described in OAR 411-052-0025(2).

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 441.122, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, 443.790 & 443.880
Statutes/Other Implemented: ORS 197.660 - 197.670, 409.050, 410.070, 413.085, 441.112, 441.114, 441.373, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 57-2024, amend filed 09/23/2024, effective 09/25/2024
APD 14-2024, temporary amend filed 03/28/2024, effective 04/01/2024 through 09/27/2024
APD 62-2021, amend filed 12/27/2021, effective 01/01/2022
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-050-0755 Records - Availability

(1) ACCESS TO RESIDENT RECORDS. Resident records must be readily available at the AFH to:

(a) Residents, the residents' representatives or other legally authorized persons, all caregivers working in the home, and the Department, the LLA, the investigative authority, case managers, the Centers for Medicare and Medicaid Services (CMS), and Oregon Health Authority (OHA) for the purpose of conducting inspections or investigations.

(b) The State Long-Term Care Ombudsman must be provided access to all resident and facility records. A Deputy Ombudsman and Certified Ombudsman Volunteers must be provided access to facility records relevant to caregiving and resident records with written permission from the resident or the resident's representative. (See OAR 114-005-0030).

(2) CONFIDENTIALITY. The licensee must protect the residents' personal health and all other confidential information according to OAR 411-050-0730(5).

(3) RETENTION. Records, including any financial records for residents, must be kept for a period of three years from the date the resident left the home.

(4) ELECTRONIC. Electronic records may be used if the system complies with these rules. At a minimum, an electronic record system must:

(a) Have the capability to print the electronic records. All caregivers must be able to print records upon request by the Department.

(b) Have a back-up system to protect the electronic records in the event of power outages, system problems, or other problems.

(d) Automatically identify any late entry and reflect the date and time of the late entry.

(e) Prevent alteration of any entries once they are made. Changes may be documented, but the system must automatically include the date and time of the change. The reason for any modification must be documented by the caregiver.

(f) Be password protected. The passwords for the electronic record system must be changed at least quarterly, and the password for the router must be changed at least every six months.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730 & 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, 443.790, 443.880
Statutes/Other Implemented: ORS 197.660 - 197.670, 409.050, 410.070, 413.085, 441. 373 & 443.001 - 443.004, 443.705 - 443.825, 443.875, 443.991
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-050-0760 Resident Moves and Transfers

(1) The licensee must support a resident's choice to remain in his or her living environment, while recognizing that some residents may no longer be appropriate for the adult foster care setting due to safety and medical limitations.

(a) If a resident moves, or intends to move, out of an AFH for any reason, the licensee must cooperate with the potential licensee's or administrator's screening and assessment activities as directed by the resident or the resident's representative and submit copies of pertinent information from the resident's record to the resident's new place of residence at the time of move. Pertinent information must include, at a minimum:

(A) Copies of current prescribing medical practitioner's orders for medications, current medication sheets, an updated care plan, including the elements of any person-centered service plan, and any documentation of limitations.

(B) Documentation of actions taken by the AFH staff, resident, or the resident's representative pertaining to the move or transfer.

(b) A licensee must immediately document voluntary and involuntary moves or transfers from the AFH in the resident's record as events take place.

(2) VOLUNTARY MOVES AND TRANSFERS. If a resident eligible for Medicaid services or the resident's representative gives notice of the resident's intent to leave the AFH, or the resident leaves the home abruptly, the licensee must promptly notify the resident's case manager and the LLA.

(a) A licensee must obtain prior authorization from the resident, the resident's representative, and case manager, as applicable, before the resident's:

(A) Voluntary move from one bedroom to another in the AFH;

(B) Voluntary transfer from one AFH to another home that has a license issued to the same person; or

(b) Notifications and authorizations of voluntary moves and transfers must be documented and available in the resident's record.

(3) INVOLUNTARY MOVES AND TRANSFERS. A resident may only be moved involuntarily to another room within the AFH, transferred to another AFH operated by the same licensee for a temporary or permanent stay, or moved from the AFH for the following reasons:

(a) Medical reasons. The resident has a medical or nursing condition that is complex, unstable, or unpredictable that exceeds the level of care and services the facility provides.

(b) The AFH is unable to accomplish evacuation of the AFH in accordance with OAR 411-050-0725.

(A) Exhibits behavior that poses an imminent danger to self or others, including acts that result in the resident's arrest or detention;

(B) Engages in behavior or action that repeatedly and substantially interfere with the rights, health, or safety of the residents or others; or

(d) Failure to make payment for care or failure to make payment for room and board.

(e) The AFH license was revoked, not renewed, the license was voluntarily surrendered, or the home was voluntarily closed.

(f) The home was not notified before the resident's admission, or learns following the resident's admission, that the resident is on probation, parole, or post-prison supervision after being convicted of a sex crime defined in ORS 163A.005.

(g) The licensee's Medicaid Provider Enrollment Agreement is terminated.

(h) The specialized contract for a Medicaid eligible resident is terminated.

(i) The resident engages in the use of legal medical marijuana, recreational marijuana, or both, in violation of the home's written policies or contrary to Oregon Law under ORS chapter 475B, Cannabis Regulation.

(j) Related to non-payment if the resident repeatedly refuses a roommate without good cause after the resident or resident's representative has signed a residency agreement stating a willingness to share a bedroom. For purposes of this rule, "good cause" means there is a reasonable belief that the individual's physical, emotional, or mental well-being will suffer or be harmed.

(4) MANDATORY WRITTEN NOTICE FOR INVOLUNTARY MOVES. A resident may not be moved involuntarily from the AFH, to another room within the AFH, or transferred to another AFH for a temporary or permanent stay without a minimum of 30 calendar days' written notice. The notice must be delivered in person to the resident and must be delivered in person or sent by registered or certified mail to the resident's representative, guardian, or conservator, and a copy must be immediately submitted to the LLA, and to the resident's case manager, as applicable. Where a resident lacks capacity and there is no representative, a copy of the notice must be immediately submitted to the State Long Term Care Ombudsman. The written notice must:

(a) Be on the Department's Notice of Involuntary Move or Transfer of Resident form (SDS 901).

(b) Be completed in full by the licensee.

(5) LESS THAN 30 DAYS' WRITTEN NOTICE. A licensee or administrator may give less than 30 calendar days' written notice in specific circumstances as identified in paragraphs (a) to (c) below, but must do so as soon as possible using the Department's Notice of Involuntary Move or Transfer of Resident form (SDS 901). The notice must be given in person to the resident, the resident's representative, guardian, conservator, and a copy must be immediately submitted to the LLA, and to the resident's case manager, as applicable. The reasons for the notice must be fully documented in the resident's record. The licensee remains responsible for the provision of care and services until the resident has moved from the home. A licensee may give less than 30 calendar days' notice only if:

(a) Undue delay in moving the resident would jeopardize the health, safety, or well-being of the resident, including:

(A) The resident has a medical emergency that requires the immediate care of a level or type the AFH is unable to provide.

(B) The resident exhibits behavior that poses an immediate danger to self or others.

(b) The resident is hospitalized or is temporarily out of the home and the licensee determines he or she is no longer able to meet the needs of the resident; or

(c) The home was not notified before the resident's admission, or learns following the resident's admission, the resident is on probation, parole, or post-prison supervision after being convicted of a sex crime defined in ORS 163A.005.

(A) In the event a resident is given notice of an involuntary move due to this subsection of this rule, the notice may be given without reasonable advance notice.

(B) The resident shall be given the Department's Notice of Involuntary Move or Transfer of Resident form (SDS 901) as stated in (3) of this rule.

(6) RESIDENT HEARING RIGHTS. Except for (3)(e) of this rule, a resident, who has been given formal notice of an involuntary move or refused the right of return or re-admission, is entitled to an informal conference and hearing before the involuntary move or transfer.

(a) INFORMAL CONFERENCE. The LLA must hold an informal conference as promptly as possible after the request is received. The LLA must send written notice of the time and place of the conference to the licensee and all persons entitled to the notice. Participants may include the resident and at the resident's request, a family member, case manager, Ombudsman, legal representative of the resident, the licensee, and a representative from an AFH association or SEIU if requested by the licensee. The purpose of the informal conference is to resolve the matter without an administrative hearing. If a resolution is reached at the informal conference, the LLA must document the outcome in writing and no administrative hearing is needed.

(b) ADMINISTRATIVE HEARING. If a resolution is not reached as a result of the informal conference, the resident or the resident's representative may request an administrative hearing. If the resident is being moved or transferred with less than 30 calendar days' notice according to (5)(c) of this rule, the hearing must be held within seven business days of the move or transfer. The licensee must hold a space available for the resident pending receipt of an administrative order. These rules and ORS 441.605(4) governing transfer notices and hearings for residents of long-term care facilities apply to AFHs.

(7) CLOSURE OF ADULT FOSTER HOMES. A licensee must notify the LLA before the voluntary closure, proposed sale, or transfer of ownership of the home, and give the residents and the residents' families, representatives, and case managers, as appropriate, a minimum of 30 calendar days' written notice on the Department's form (SDS 901) according to (3) of this rule.

(a) In circumstances where undue delay might jeopardize the health, safety, or well-being of residents, licensees, or staff, written notice must be given as soon as possible, according to (5)(c) of this rule.

(b) A licensee must surrender the physical license to operate an AFH to the LLA at the time of the AFH's closure.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, 443.790 & 443.880
Statutes/Other Implemented: ORS 197.660-197.760, 409.050, 410.070, 413.085, 441.373, 443.001-443.004, 443.705-443.825, 443.875 & 443.991
APD 62-2021, amend filed 12/27/2021, effective 01/01/2022
APD 36-2021, amend filed 09/17/2021, effective 09/22/2021
APD 14-2021, temporary amend filed 05/19/2021, effective 05/20/2021 through 11/15/2021
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Division 51 ADULT FOSTER HOMES FOR OLDER ADULTS OR ADULTS WITH PHYSICAL DISABILITIES - STANDARDS OF CARE

Or. Admin. R. 411-051-0105 Temporary rule language in effect until 01/27/2027. Resident’s Rights and Protections

(1) RESIDENT'S BILL OF RIGHTS AND FREEDOMS. The licensee, AFH occupants, and employees of the home must not violate these rights and must help the residents exercise them. The Resident’s Bill of Rights and Freedoms provided by the Department must be explained and a copy given to each resident at the time of admission. The Resident’s Bill of Rights and Freedoms states each resident has the right to:

(a) Be treated as an adult with respect and dignity.

(b) Be informed of all resident rights and all house policies as written in the Residency Agreement.

(d) Be informed of his or her medical condition and the right to consent to or refuse treatment.

(e) Receive appropriate care, services, and prompt medical care as needed.

(f) To be given informed consent before any nontherapeutic examination, observation or treatment is provided.

(g) Be free from abuse.

(h) Complete privacy when receiving treatment or personal care.

(i) Associate and communicate privately with any person of choice and send and receive personal mail unopened.

(j) Have access to, and participate in, activities of social, religious, and community groups.

(k) Have medical and personal information kept confidential.

(l) Keep and use a reasonable amount of personal clothing and belongings, and to have a reasonable amount of private, secure storage space.

(m) Be free from chemical and physical restraints except as ordered by a physician or other qualified practitioner and consented to by the resident or their legal guardian.

(A) Restraints are used only for medical reasons, to maximize a resident's physical functioning, and after other alternatives have been tried and may not be used for discipline or convenience.

(B) When the right to freedom from restraints must be limited due to a threat to the health and safety of an individual or others, an individually-based limitation is required according to (3) of this rule and OAR 411-004-0040.

(n) Manage his or her own financial affairs unless legally restricted.

(o) Be free from financial exploitation. The licensee may not charge or ask for application fees or non-refundable deposits or solicit, accept, or receive money or property from a resident other than the amount agreed to for services.

(p) A written agreement regarding services to be provided and the rates to be charged. The licensee must give 30 days' written notice before any change in the rates or the ownership of the home.

(q) Not be transferred or moved out of the AFH without 30 calendar days' written notice and an opportunity for a hearing. A licensee or administrator may transfer a resident only for medical reasons, for the welfare of the resident or other residents, or for nonpayment.

(r) A safe and secure environment.

(s) Be free of discrimination in regard to race, color, national origin, gender, sexual orientation, or religion.

(t) Make suggestions or complaints without fear of retaliation.

(u) Be free of discrimination regarding the execution of an Advance Directive, Physician's Order for Life-Sustaining Treatment (POLST), or Do Not Resuscitate (DNR) orders.

(2) LGBTQIA2S+ and Human Immunodeficiency Virus (HIV) PROTECTIONS. A licensee, administrator, resident manager, floating resident manager, shift caregiver or substitute caregiver of the AFH may not take any of the following actions based in whole or in part on a resident’s actual or perceived sexual orientation, gender identity, gender expression or HIV status:

(a) Deny admission to an AFH, transfer or refuse to transfer a resident within an AFH or to another home or discharge or evict a resident from an AFH;

(b) Deny a request by a resident to choose the resident’s roommate, when a resident is sharing a room;

(c) Refuse to assign a room to a transgender or other LGBTQIA2S+ resident other than in accordance with the resident’s gender identity, unless at the request of the resident or if required by federal law;

(d) Prohibit a resident from using, or harass a resident who seeks to use or does use, a restroom that is available to other individuals of the same gender identity as the resident, regardless of whether the resident is making a gender transition, has taken or is taking hormones, has undergone gender affirmation surgery or presents as gender nonconforming; Harassment includes, but is not limited to, requiring a resident to show documentation of gender identity in order to gain entrance to a restroom or other area of an AFH that is available to other individuals of the same gender identity as the resident;

(e) Repeatedly and willfully refuse to use a resident’s name or pronouns after being reasonably informed of the resident’s name or pronouns;

(f) Deny a resident the right to wear or be dressed in clothing, accessories or cosmetics, or to engage in grooming practices, that are permitted to any other resident;

(g) Restrict a resident’s right to associate with other residents or with visitors, including the resident’s right to consensual sexual relations or to display physical affection, unless the restriction is uniformly applied to all residents in a nondiscriminatory manner;

(h) Deny or restrict medical or nonmedical care that is appropriate to a resident’s organs and bodily needs, or provide medical or nonmedical care that, to a similarly situated, reasonable person, unduly demeans the resident’s dignity or causes avoidable discomfort;

(i) Fail to accept a resident’s verbal or written attestation of the resident’s gender identity or require a resident to provide proof of the resident’s gender identity using any form of identification;

(j) Fail to take reasonable actions, within the AFH’s control, to prevent discrimination or harassment when the facility knows or should have known about the discrimination or harassment;

(k) Refuse or willfully fail to provide any service, care or reasonable accommodation to a resident; or

(l) Refuse or willfully fail to provide any service, care or reasonable accommodation to a potential resident applying for services or care.

(3) HCBS FREEDOMS. Residents have the following rights and freedoms authorized by 42 CFR 441.301(c)(4) and 42 CFR 441.530(a)(1):

(a) To live under a legally enforceable Residency Agreement with protections substantially equivalent to landlord-tenant laws.

(b) The freedom and support to access food at any time.

(d) To privacy in the resident's bedroom, and to have a lockable door in the resident's bedroom, which may be locked by the resident.

(e) To choose a roommate when sharing a bedroom.

(f) To furnish and decorate the resident's bedroom according to the Residency Agreement.

(g) The freedom and support to control the resident's schedule and activities.

(4) INDIVIDUALLY-BASED LIMITATIONS. A limitation to (1)(m) of this rule and any freedom in section (3)(b) through (g) of this rule must be supported by a specific assessed need due to a threat to the health and safety of the resident or others. All individually-based limitations (IBL) considered must be documented on the Department-approved consent form.

(a) For Medicaid-eligible residents, the person-centered service plan must be developed as outlined in OAR 411-051-0120.

(b) For Medicaid-eligible residents, the person-centered service plan coordinator must authorize the IBL and the individual, or their representative, must consent to the limitation.

(c) The licensee or administrator must incorporate and document all applicable elements identified in OAR 411-004-0040, including:

(A) The specific and individualized assessed need justifying the limitation.

(B) The positive interventions and supports used before imposing a limitation.

(D) A clear description of the condition that is directly proportionate to the specific assessed need.

(E) Regular reassessment and review to measure the ongoing effectiveness of the limitation.

(F) Established time limits for periodic review of the limitation to determine if the limitation should be terminated or remains necessary. The limitation must be reviewed at least annually.

(G) The informed consent of the resident or, as applicable, the legal representative of the resident, including any discrepancy between the wishes of the resident and the consent of the legal representative.

(H) An assurance that the interventions and support do not cause harm to the individual.

(d) Limitations are not transferable between care settings. Continued need for any limitation at a new care setting must comply with the requirements in these rules.

(5) RESIDENT CARE.

(a) Care and supervision of residents must be in a homelike atmosphere. The training of the licensee and caregivers and care and supervision of residents must be appropriate to the age, care needs, and conditions of the residents in the home. Additional staff may be required if, for example, day care individuals are in the home or if necessary to safely evacuate the residents and all occupants from the home as required by OAR 411-050-0725.

(b) If a resident has a medical regimen or personal care plan prescribed by a licensed health care professional, the licensee or administrator must cooperate with the plan and ensure the plan is implemented as instructed.

(c) NOTIFICATION. The licensee or administrator must notify emergency personnel, the resident's physician, nurse practitioner, physician assistant, registered nurse, family representative, and case manager, as applicable, under the following circumstances:

(A) EMERGENCIES (MEDICAL, FIRE, POLICE). In the event of an emergency, the licensee or caregiver with the resident at the time of the emergency must first call 911 or the appropriate emergency number for the home's community. This does not apply to a resident with a medical emergency who practices Christian Science.

(i) If a resident is receiving hospice services, the caregivers must follow the written instructions for medical emergencies from the hospice nurse.

(ii) If a resident has a completed Physician's Orders for Life-Sustaining Treatment (POLST) or other legal documents, such as an Advance Directive or Do Not Resuscitate (DNR) order, copies of the documents must be made available to the emergency personnel when they arrive.

(B) HOSPITALIZATION. In the event the resident is hospitalized.

(D) DEATH. Upon the death of the resident.

(d) The licensee shall not inflict, or tolerate to be inflicted, abuse of any resident, as defined in OAR 411-020-0002.

(e) REASONABLE PRECAUTIONS. The licensee must exercise reasonable precautions against any conditions that may threaten the health, safety, or welfare of the residents.

(f) A qualified caregiver must always be present and available at the home when a resident is in the home. A resident may not be left in charge in lieu of a caregiver.

(g) DIRECT INVOLVEMENT OF CAREGIVERS. The licensee or caregivers must be directly involved with the residents daily. If the physical characteristics of the AFH do not encourage contact between the caregivers and residents and among residents, the licensee must demonstrate how regular positive contact occurs.

(6) ACTIVITIES. The licensee or administrator must make available at least six hours of activities per week, not including television and movies, that are of interest to the residents. Information regarding activity resources is available from the LLA. Activities must be oriented to individual preferences as indicated in the resident's care plan. (See OAR 411-051-0115). Documentation of the activities offered to each resident and the resident's participation in those activities must be recorded in the resident's records.

(7) RESIDENT MONEY. If the licensee or administrator manages or handles a resident's money, a separate account record must be maintained in the resident's name. The licensee or administrator may not under any circumstances commingle, borrow from, or pledge any of a resident's funds. The licensee or administrator may not act as a resident's guardian, conservator, trustee, or attorney-in-fact unless related by birth, marriage, or adoption to the resident as follows: parent, child, brother, sister, grandparent, grandchild, aunt, uncle, niece, or nephew. Nothing in this rule may be construed to prevent the licensee or the licensee's employee from acting as a representative payee for the resident. (See also OAR 411-020-0002).

(a) Personal incidental funds (PIF) for individuals eligible for Medicaid services must be used at the discretion of the individual for such things as clothing, tobacco, and snacks (not part of daily diet).

(b) The licensee and other caregivers may not accept gifts from the residents through undue influence or accept gifts of substantial value. Caregivers and family members of the caregivers may not accept gifts of substantial value or loans from the resident or the resident’s family. The licensee or other caregivers may not influence, solicit from or suggest to any residents or resident’s representatives that the residents or the resident’s representatives give the caregiver or the caregiver’s family money or property for any purpose.

(d) The licensee and other caregivers may not loan money to the residents.

History

Statutory/Other Authority: ORS 127.520, 409.050, 410.070, 413.085, 441.122, 441.373, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775 & 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 441.112, 441.114, 441.373, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 20-2026, temporary amend filed 07/29/2026, effective 08/01/2026 through 01/27/2027
APD 57-2024, amend filed 09/23/2024, effective 09/25/2024
APD 15-2024, temporary amend filed 03/28/2024, effective 04/01/2024 through 09/27/2024
APD 23-2019, minor correction filed 07/01/2019, effective 07/01/2019
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-051-0110 Pre-Admission

(1) PRE-ADMISSION SCREENING AND ASSESSMENT.

(a) Before admission, the licensee or administrator must conduct and document a screening using the Department’s current Adult Foster Home Screening and Assessment and General Information form (SDS 0902) to determine if a prospective resident's care needs exceed the license classification of the home. The screening must:

(A) Evaluate the ability of the prospective resident to evacuate the home within three minutes along with all the occupants of the home.

(B) Determine if the licensee and caregivers can meet the prospective resident's needs in addition to meeting the needs of the other residents of the home.

(C) Include medical diagnoses, medications, personal care needs, nursing care needs, cognitive needs, communication needs, night care needs, nutritional needs, activities, lifestyle preferences, and other information, as needed, to assure the prospective resident's care needs shall be met.

(b) The screening process must include interviews with the prospective resident and the prospective resident's family, prior care providers, and case manager, as appropriate. The licensee or administrator must also interview, as necessary, any physician, nurse practitioner, physician assistant, registered nurse, pharmacist, therapist, or mental health or other licensed health care professional involved in the care of the prospective resident. A copy of the screening document must be:

(A) Given to the prospective resident or their representative.

(B) Placed in the resident's record if admitted to the home; or

(c) If the Department or AAA knows a person who is on probation, parole, or post-prison supervision after being convicted of a sex crime as defined in ORS 163A.005 is applying for admission to an AFH, the Department or AAA shall notify the home of the person's status as a sex offender.

(d) The licensee or administrator may refuse to admit a person who is on probation, parole, or post-prison supervision after being convicted of a sex crime as defined in ORS 163A.005.

(e) REQUIRED DISCLOSURES.

(A) The licensee or administrator must disclose the home's policies to a prospective resident or the prospective resident's representative, as applicable. A copy of the home's current Residency Agreement identifying the home's policies shall be provided to the prospective resident and their representative. (See OAR 411-050-0705).

(B) The licensee or administrator must inform a prospective resident or the prospective resident’s representative, if appropriate, of the home’s nondiscrimination policy. A copy of the home’s current nondiscrimination policy shall be provided to the prospective resident and their representative. (See OAR 411-050-0745(2)(e)).

(C) LONG-TERM CARE ASSESSMENT. The licensee or administrator must inform a prospective private-pay resident or the prospective resident's representative, if appropriate, of the availability of long-term care assessment services provided through the Department or a certified assessment program. The licensee or administrator must document on the Department's form (SDS 913) that the prospective private-pay resident has been advised of the right to receive a long-term care assessment. The licensee or administrator must maintain a copy of the form in the resident's record upon admission and make a copy available to the Department upon request.

(2) BEFORE ADMISSION.

(a) The licensee or administrator must obtain and document general information regarding a resident before the resident's admission. The information must include the names, addresses, and telephone numbers of the resident's relatives, significant persons, case managers, and medical or mental health providers. The information must also include the date of admission and, if available, the resident's medical insurance information, birth date, prior living facility, and mortuary.

(b) Before admission, the licensee or administrator must obtain and place in the resident's record:

(A) Prescribing practitioner's written or verbal orders for medications, treatments, therapies, and special diets, as applicable. Any verbal orders must be followed by written orders within seven calendar days of the resident's admission. Attempts to obtain written orders must be documented in the resident's record.

(B) Prescribing practitioner or pharmacist review of the resident's preferences for over-the-counter medications and home remedies.

(C) Any medical information available, including the resident's history of accidents, illnesses, impairments, or mental status that may be pertinent to the resident's care.

(D) Legal name for billing purposes

(E) For service planning purposes, any variance from legal records, as indicated by the resident regarding:

(i) Name.

(ii) Pronouns.

(iii) Gender identity.

(c) The licensee or administrator must ask for copies of the resident's Advance Directive, Physician's Order for Life Sustaining Treatment (POLST), and proof of court-appointed guardianship or conservatorship, if applicable. Copies of these documents must be placed in a prominent place in the resident's record and sent with the resident if the resident is transferred for medical care.

(d) The licensee or administrator must review the home's current Residency Agreement with the resident and the resident's representative, as appropriate. These reviews must be documented by having the resident, or the resident's representative, sign and date a copy of the Residency Agreement. A copy of the signed and dated Residency Agreement must be maintained in the resident's record.

(e) Upon admission of a resident, the licensee or administrator shall provide the resident or the resident’s representative with information developed by the Long-Term Care Ombudsman describing the availability and services of the ombudsman. The facility shall document that the facility provided this information as required.

(3) SCREENING BEFORE RE-ADMISSION. When a resident temporarily leaves the home including, but not limited to, a resident's hospitalization, the licensee or administrator shall conduct the necessary elements of the pre-admission and screening assessment requirements, and document those findings to:

(a) Determine whether readmission to the home is appropriate for the classification of the home.

(b) Determine whether the licensee or administrator can continue to meet the resident's care and safety needs in addition to those of the other residents.

(d) If applicable, demonstrate the basis for refusing the resident's re-admission to the home according to reasons identified in OAR 411-050-0760(3).

History

Statutory/Other Authority: ORS 127.520, 409.050, 410.070, 413.085, 441.122, 441.373, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775 & 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 441.112, 441.114, 441.373, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 57-2024, amend filed 09/23/2024, effective 09/25/2024
APD 15-2024, temporary amend filed 03/28/2024, effective 04/01/2024 through 09/27/2024
APD 21-2020, amend filed 06/16/2020, effective 06/24/2020
APD 53-2019, temporary amend filed 12/23/2019, effective 01/01/2020 through 06/28/2020
APD 24-2019, minor correction filed 07/01/2019, effective 07/01/2019
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-051-0115 Temporary rule language in effect until 01/27/2027. Care Plan

(1) During the initial 14 calendar days following the resident's admission to the home, the licensee or administrator must continue to assess and document the resident's preferences and care needs. The assessment and care plan must be completed by the licensee or administrator and documented within the initial 14-day period. The care plan must describe the resident's needs, preferences, capabilities, what assistance the resident requires for various tasks, and must include:

(a) By whom, when, and how often care and services shall be provided.

(b) The resident's ability to perform activities of daily living (ADLs).

(d) Communication needs (examples may include, but are not limited to, hearing or vision needs, such as eraser boards or flash cards, or language barriers, such as sign language or non-English speaking).

(e) Night needs.

(f) Medical or physical health problems, including physical disabilities, relevant to care and services.

(g) Cognitive, emotional, or other impairments relevant to care and services.

(h) Treatments, procedures, or therapies.

(i) Registered nurse consultation, teaching, delegation, or assessment.

(j) Behavioral interventions.

(k) Social, spiritual, and emotional needs, including lifestyle preferences, name, pronouns, legal name, gender identity, activities, and significant others involved.

(l) The ability to exit in an emergency, including assistance and equipment needed.

(m) Any use of physical restraints or psychotropic medications.

(n) Dietary needs and preferences.

(o) Any individually-based limitations according to OAR 411-051-0105(3).

(A) The licensee or administrator must identify any individually-based limitations to the use of restraints or the HCBS rights as listed in OAR 411-051-0105(2).

(B) For Medicaid-eligible residents, the person-centered service plan coordinator must authorize the limitation and the individual must consent to the limitation. The licensee or administrator must incorporate and document all applicable elements identified in OAR 411-051-0105(3).

(C) Limitations are not transferable between care settings. Continued need for any limitation at the new care setting must comply with the requirements as stated in OAR 411-051-0105.

(2) The licensee or administrator must:

(a) Review and update each resident's care plan every six months.

(b) Review and update a resident’s care plan when a resident's condition changes.

(c) Document in the resident's record at the time of each review and include the date of the review and the licensee or administrator 's signature. If a care plan contains many changes and becomes less legible, a new care plan must be written.

(3) The licensee or administrator is responsible for ensuring implementation of the resident’s care plan and, if applicable, the behavioral support plan with suggested interventions.

History

Statutory/Other Authority: ORS 127.520, 409.050, 410.070, 413.085, 441.122, 441.373, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775 & 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 441.111, 441.114, 441.373, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 20-2026, temporary amend filed 07/29/2026, effective 08/01/2026 through 01/27/2027
APD 57-2024, amend filed 09/23/2024, effective 09/25/2024
APD 15-2024, temporary amend filed 03/28/2024, effective 04/01/2024 through 09/27/2024
APD 25-2019, minor correction filed 07/01/2019, effective 07/01/2019
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-051-0120 Person-Centered Service Plan

(1) A Medicaid-eligible resident's case manager shall complete a person-centered service plan, pursuant to OAR 411-004-0030. The licensee or administrator must incorporate all applicable elements identified in the person-centered service plan that the licensee or administrator is responsible for implementing. The licensee or administrator must notify the resident's case manager in the event a review and change or removal of an existing limitation is warranted, and when a new limitation is supported by a specific assessed need.

(a) All attempts to notify the resident's case manager about a review to change, remove, or add a limitation must be documented, and available in the resident's record.

(b) The licensee or administrator may not be held responsible for any failure on the case manager's part to conduct a review of current limitations or to complete the person-centered service plan if there have been multiple documented attempts to contact the resident’s case manager and the resident has been reasonably protected from harm.

(2) Licensees or administrators may assist non-Medicaid residents in developing a person-centered service plan when no alternative resources are available.

History

Statutory/Other Authority: ORS 127.520, 409.050, 410.070, 413.085, 441.373, 443.001, 443.004, 443.725 & 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 441.373, 443.001 - 443.004, 443.705 - 443.825 & 443.875, 443.991
APD 26-2019, minor correction filed 07/01/2019, effective 07/01/2019
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-051-0125 Registered Nurse Consultation

(1) RN CONSULTATION AND ASSESSMENT. A licensee or administrator must have an arrangement with at least one registered nurse, who has a current, active, unencumbered Oregon license to provide consultation, assessment, teaching, delegation, or review of medication administration processes, as needed to meet the care needs of non-Medicaid residents as required by these rules.

(a) The licensee or administrator must check to confirm the RN has a current, active, unencumbered Oregon license on the OSBN website at: https://osbn.oregon.gov/OSBNVerification/Default.aspx.

(b) Verification of the RN’s status with the OSBN must be documented and readily accessible in the facility’s records.

(2) An RN consultation must be obtained when a nursing procedure has been ordered by a health care professional with prescribing authority for any medical treatment other than medications that are taken by mouth.

(3) A licensee or administrator must also request a registered nurse consultation under the following conditions:

(a) When a resident has a health concern or behavioral symptoms that is unfamiliar to caregivers.

(b) To clarify a prescribing practitioner’s PRN order when it includes dose or frequency ranges, or when there is no information given about what the medication is treating, or signs and symptoms for when to give the PRN medication to the resident.

(c) Before the use of physical restraints when not assessed, taught, and reassessed, according to section OAR 411-051-0130(14) of this rule, by a physician, nurse practitioner, physician assistant, Christian Science practitioner, mental health clinician, physical therapist, or occupational therapist.

(d) When there are concerns about resident behaviors that do not respond to non-medication interventions, or the use of new psychotropic medications when not assessed, taught, and reassessed according to section OAR 411-051-0130(8), by a physician, nurse practitioner, physician assistant, or mental health practitioner.

(e) When care procedures are ordered that are new for a resident, the licensee, or other caregivers.

(4) RN DELEGATIONS. A registered nurse may determine a nursing care procedure must be delegated before the caregiver can perform the procedure. The delegation of a nursing procedure must be completed prior to any caregiver performing the procedure.

(a) RN delegations are not transferable to other residents or caregivers. (Refer to OAR chapter 851, division 047).

(b) A Long-Term Care Community Nurse (LTCCN) may be available to provide consultation, teaching, and delegation for Medicaid consumers only.

(5) DOCUMENTATION OF RN VISITS. Documentation of nurse consultations, teaching, and step-by-step instructions on any delegated nursing procedure or other taught procedure, assessments, and reassessments must be maintained in the resident's record and made available to the Department upon request.

History

Statutory/Other Authority: ORS 127.520, 409.050, 410.070, 413.085, 441.373, 443.001, 443.004 & 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 441.373, 443.001 - 443.004, 443.705 - 443.825 & 443.875, 443.991
APD 27-2019, minor correction filed 07/01/2019, effective 07/01/2019
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-051-0130 Temporary rule language in effect until 01/27/2027. Standards for Medications, Treatments, and Therapies

(1) MEDICATIONS. The licensee and caregivers must demonstrate an understanding of each resident's medication administration regimen, including the reason for the medication, specific instructions, the medication’s actions, and common side effects. Medication resource material must be readily available at the home and include:

(a) The product or drug information sheet;

(b) A current drug manual; or

(2) WRITTEN ORDERS. The licensee or administrator must obtain and place a signed order in the resident's record for any medications, dietary supplements, treatments, or therapies that have been ordered by a prescribing practitioner. The written orders must be carried out as prescribed unless the resident or the resident's legal representative refuses to consent. The prescribing practitioner must be notified if the resident refuses to consent to an order.

(a) CHANGED ORDERS. Changes to a written order may not be made without a prescribing practitioner order. The prescribing practitioner must be notified if the resident refuses to consent to the change order. Changes to medical orders obtained by telephone must be followed-up with signed orders within seven calendar days. Changes in the dosage or frequency of an existing medication require a new properly labeled and dispensed medication container. If a new properly labeled and dispensed medication container is not obtained, the change must be written on an auxiliary label attached to the medication container, not to deface the existing original pharmacy label, and must match the new medication order. Attachment of the auxiliary label must be documented in the residents' record. (See section (6)(d) of this rule).

(b) DOCUMENTATION OF CHANGED ORDERS. Attempts to obtain the signed written changes must be documented and readily available for review in the resident's record. The resident's medications, including medications that are prescribed, over-the-counter medications, and home remedies, must be reviewed by the resident's prescribing practitioner or pharmacist at least annually. The review must be in writing, include the date of the review, and contain the signature of the prescribing practitioner or a pharmacist.

(3) MEDICATION SUPPLIES. The licensee or administrator must have all currently prescribed medications, including PRN medications, and all prescribed over-the-counter medications available in the home for administration. Refills must be obtained before depletion of current medication supplies. Attempts to order refills must be documented in the resident's record.

(4) HEALTH CARE PROFESSIONAL ORDERS (IMPLEMENTED BY AFH STAFF). The licensee or administrator who implements a hospice, home health, or other licensed medical professional-generated order must:

(a) Have a copy of the hospice, home health, or licensed medical professional document that communicates the written order.

(b) Transcribe the order onto the medication administration record (MAR).

(d) Include the order on subsequent medical visit reports for the prescribing practitioner to review.

(5) HOSPICE AND HOME HEALTH ORDERS (IMPLEMENTED BY NON-AFH STAFF). A licensee or administrator must allow a resident to receive hospice services. The licensee or administrator who provides AFH services to a recipient of hospice or home health services, but who does not implement a hospice or home health-generated order must:

(a) Have a copy of the hospice or home health document that communicates the written order.

(b) Include the order on subsequent medical visit reports for the prescribing practitioner to review.

(6) MEDICATION ADMINISTRATION RECORD. A current, written MAR, or electronic MAR (see OAR 411-050-0755(4)), must be kept for each resident and must:

(a) List the name of all medications administered by a caregiver, including over-the-counter medications and prescribed dietary supplements. The MAR must identify the dosage, route, date, and time each medication and supplement is to be given.

(b) Identify any treatments and therapies administered by a caregiver. The MAR must indicate the type of treatment or therapy and the time the procedure must be performed.

(c) Be immediately initialed by the caregiver administering the medication, treatment, or therapy as it is completed. A resident's MAR must contain a legible signature that identifies each set of initials.

(d) Document changed and discontinued orders immediately showing the date of the change or discontinued order. A changed order must be written on a new line with a line drawn to the start date and time.

(e) Document missed or refused medications, treatments, or therapies. If a medication, treatment, or therapy is missed or refused by the resident, the initials of the caregiver administering the medication, treatment, or therapy must be circled, and a brief, but complete, explanation must be recorded on the back of the MAR.

(7) PRN MEDICATIONS. Prescription medications ordered to be given "as needed" or "PRN" must have specific parameters indicating what the medication is for and specifically when, how much, and how often the medication may be administered. Any additional instructions must be available for the caregiver to review before the medication is administered to the resident.

(a) PRN DOCUMENTATION. As needed medications must be documented on the resident's MAR with the time, dose, the reason the medication was given, and the outcome.

(b) PRN ADVANCE SET-UP. As needed medications may not be included in any advance set-up of medication.

(8) PSYCHOTROPIC MEDICATIONS.

(a) A licensee or administrator is not required to request an evaluation of a resident's use of a psychotropic medication if the resident is admitted to the home and the resident has been prescribed the psychotropic medication for a condition that is currently monitored by a physician, nurse practitioner, physician assistant, or mental health professional and the written order for the psychotropic medication is in the resident's record.

(b) If a resident is admitted to a home with no documented history as to the reason for taking a psychotropic medication, or if the licensee or administrator requests medical professional intervention to address behavioral symptoms, the licensee or administrator must request a physician, nurse practitioner, physician assistant, or mental health professional evaluate the resident's need for the psychotropic medication and the intended effect of the medication, common side effects, and circumstances for reporting. The evaluation request must be documented in the resident's record and include:

(A) The unmet need resulting in the resident's behavior.

(B) Non-pharmacological interventions to be used instead of or in addition to psychotropic medication, if applicable. Alternative interventions must be tried as instructed by a licensed medical professional and the resident's response to the alternative interventions must be documented in the resident's record before administering a psychotropic medication.

(C) A plan, which includes a specified timeframe, for reassessment by the resident's prescribing physician, nurse practitioner, physician assistant, or mental health professional.

(c) When a psychotropic medication is ordered by a prescribing practitioner other than the resident’s primary care provider, the licensee or administrator is responsible for notifying the resident’s primary care provider of that medication order within 72 hours of when the order was given. This includes weekends and holidays. Notification may be either by telephone or electronic submission and must be documented.

(d) The prescription and order for a psychotropic medication must specify the dose, frequency of administration, and the circumstance for use (i.e., specific symptoms). The licensee and all caregivers must be aware of and comply with these parameters.

(e) The licensee and all caregivers must know the intended effect of a psychotropic medication for a particular resident and the common side effects, as well as the circumstances for reporting to the resident's physician, nurse practitioner, physician assistant, or mental health professional. The licensee and other caregivers must know all non-pharmacological interventions and use those interventions as directed by the prescribing practitioner or the registered nurse.

(f) The resident's care plan must identify and describe the behavioral symptoms the psychotropic medications are prescribed for and a list of all interventions, including interventions that are non-pharmacological and medications.

(g) Psychotropic medications must never be given to discipline a resident or for the convenience of the caregivers.

(9) MEDICATION CONTAINERS AND STORAGE. The licensee or administrator must ensure the resident’s prescription medications are packaged in a manner that reduces errors in the tracking and administration of the drugs, including, but not limited to, the use of unit dose systems or blister (bubble) packs. This paragraph does not apply to residents receiving pharmacy benefits through the United States Department of Veterans Affairs if the pharmacy benefits do not reimburse the cost of such packaging.

(a) MEDICATION CONTAINERS. Each of the resident's prescribed medication containers, including bubble packs, must be clearly labeled by the pharmacy. All medications, including over-the-counter medications, must be in the original container, except as indicated in (9)(b) of this rule. Medications stored in advanced set up containers are required to be labeled as described in these rules.

(b) ADVANCED SET-UP. The licensee or administrator may set-up each resident's medications for up to seven calendar days in advance (excluding PRN medications) by using a closed container manufactured for the advanced set-up of medications.

(A) If used, each resident must have their own container with divisions for the days of the week and times of day the medications are to be given.

(B) The container must be clearly labeled with the resident's name, name of each medication, time to be given, dosage, amount, route, and description of each medication that includes the color, shape and any markings according to the label.

(c) OVER-THE-COUNTER PRODUCTS. Over-the-counter products such as medications, vitamins, and supplements purchased for a specific resident's use must be marked with the resident's name. Over-the-counter items in stock bottles (with original labels) may be used for multiple residents in the home and must be clearly marked as the house supply.

(d) STORAGE OF RESIDENT MEDICATION. All resident medications, including over-the-counter medications, must be stored as directed by the manufacturer and kept in a locked, central location that is cool, clean, dry, not subject to direct sunlight or fluctuations in temperature.

(A) Resident medications must be stored separately from medications belonging to the licensee, caregivers, and all other non-residents.

(B) Medications requiring refrigeration must also be locked and stored separately from non-resident medications.

(e) STORAGE OF NON-RESIDENT MEDICATION. All non-resident medications, including non-resident medications that must be refrigerated, must be kept locked and separate from resident medications. Residents shall not have access to medications belonging to the licensee, caregivers, other household members, or pets.

(10) DISPOSAL OF MEDICATION. Outdated, discontinued, recalled, or contaminated medications, including over-the-counter medications, may not be kept in the home and must be disposed of within 10 calendar days of expiration, discontinuation, or the licensee or administrator 's knowledge of a recall or contamination. The licensee or administrator must contact the local DEQ waste management company in the home's area for instructions on proper disposal of unused or expired medications. Prescription medications for residents that have died must be disposed of within 24 hours according to section (11) of this rule.

(a) TRANSDERMAL PATCHES. Used transdermal patches and unused patches, such as when the order was discontinued, or the patches have expired, must be folded in half with the sticky side together and disposed of as directed on the product information sheet or by the pharmacy.

(b) ITEMS CONTAMINATED WITH BODILY FLUIDS. Contaminated disposable supplies such as bandages, dressings, gauze, gloves, masks, and other supplies that are not sharps, but may have come into contact with body fluids, must be disposed of in a closed plastic bag, and placed out of residents’ reach in the garbage bin.

(11) DOCUMENTATION OF DISPOSAL. The disposal of a resident's medication must be documented in the resident's record and the documentation must be readily available. Documentation must include the name of each drug destroyed, the number of remaining pills, liquid, or patches, the date and time destroyed, and the signature of each staff that counted the medication.

(a) The disposal of a controlled substance must be witnessed by a caregiver who is 18 years of age or older and signed by both caregivers.

(b) Documentation regarding the disposal of medications, including controlled substances, must be available in the resident’s record and include:

(A) The date of disposal.

(B) Description of the medication, (i.e., name, dosage, and amount being disposed).

(D) Reason for disposal.

(E) Method of disposal.

(F) Signature of the person disposing of the medication.

(G) For controlled substances, the signature of the caregiver who witnessed the disposal according to this rule.

(12) SELF-ADMINISTRATION OF MEDICATION. The licensee or administrator must have a prescribing practitioner written approval for a resident to self-medicate. A resident able to handle his or her own medical regimen may keep his or her medications in his or her own room in a lockable storage area or device. Medications must be kept locked except those medications on the residents' own person. The licensee or administrator must notify the prescriber of the medication if the resident shows signs of no longer being able to self-medicate safely.

(13) INJECTIONS. Subcutaneous, intramuscular, and intravenous injections may be self-administered by a resident if the resident is fully independent in the task or may be administered by a relative of the resident or an Oregon licensed registered nurse (RN). An Oregon licensed practical nurse (LPN) may give subcutaneous and intramuscular injections. A caregiver who has been delegated and trained by a registered nurse under provision of the OSBN (OAR 851-047-0000 to 851-047-0040) may give subcutaneous injections and intramuscular injections. Intravenous injections may not be delegated. (See OAR 411-050-0720(15) for storage and disposal requirements of sharps, including, but not limited to used needles and lancets).

(14) PHYSICAL RESTRAINTS. Physical restraints may only be used when required to treat a resident's medical symptoms or to maximize a resident's physical functioning. Physical restraints may only be used after a written assessment is completed as described below and all alternatives have been exhausted.

(a) Licensees and caregivers may use physical restraints in AFHs only in compliance with these rules (See OAR 411-051-0105).

(b) INDIVIDUALLY-BASED LIMITATION. The use of any physical restraint requires an individually-based limitation as described in OAR 411-004-0040.

(c) ASSESSMENT. A written assessment must be obtained from the resident's physician, nurse practitioner, physician assistant, registered nurse, mental health clinician, physical therapist, or occupational therapist that includes consideration of all other alternatives.

(d) ORDERS. If it is determined that a physical restraint is necessary following the assessment and trial of other measures, the least restrictive restraint must be used as infrequently as possible. The licensee or administrator must obtain a written order from the resident's physician, nurse practitioner, or physician assistant before the use of a physical restraint. The written order must include specific parameters, including the type of physical restraint, circumstances for use, and duration of use, including:

(A) Procedural guidance for the use of the physical restraint.

(B) The frequency for reassessment.

(D) Dangers and precautions for using the physical restraint.

(e) Physical restraints may not be used on an as needed (PRN) basis in an AFH.

(f) CONSENT. Physical restraints must not be used without first obtaining the written consent of the resident or the resident's legal representative.

(g) DOCUMENTATION. If it is determined a physical restraint is necessary following the assessment and trial of other measures, the written order for the use of a physical restraint must be documented in the resident's care plan explaining why and when the restraint is to be used, along with instructions for periodic release. Any less restrictive, alternative measures planned during the assessment, and cautions for maintaining the resident's safety while restrained, must also be recorded in the resident's care plan. The resident's record must include:

(A) The completed assessment as described in this rule.

(B) The written order authorizing the use of the physical restraint from the resident's physician, nurse practitioner, or physician assistant.

(C) Written consent of the resident or the resident's legal representative to use the specific type of physical restraint.

(D) The reassessments completed by a medical professional as described in OAR 411-051-0105(3)(c)(E).

(h) DAYTIME USE. A resident physically restrained during waking hours must have the restraints released at least every two hours for a minimum of 10 minutes and be repositioned, offered toileting, and provided exercise or range-of-motion exercises during this period. The use of restraints, restraint release, and activities that occurred during the release period must be documented in the resident's record.

(i) NIGHTTIME USE. The use of physical restraints at night is discouraged and must be limited to unusual circumstances. If used, the restraint must be of a design to allow freedom of movement with safety. The frequency of night monitoring to address resident safety and care needs must be determined in the assessment. Tie restraints of any kind must not be used to keep a resident in bed.

(j) If any physical restraints are used in an AFH, the restraints must allow for quick release at all times. Use of restraints may not impede the three-minute evacuation of all occupants of the home.

(k) Physical restraints may not be used for the discipline of a resident or for the convenience of the AFH.

History

Statutory/Other Authority: ORS 127.520, 409.050, 410.070, 413.085, 441.373, 443.001, 443.004, 443,725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775 & 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 441.373, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 20-2026, temporary amend filed 07/29/2026, effective 08/01/2026 through 01/27/2027
APD 59-2021, amend filed 12/23/2021, effective 01/01/2022
APD 28-2019, minor correction filed 07/01/2019, effective 07/01/2019
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Division 52 ADULT FOSTER HOMES FOR OLDER ADULTS OR ADULTS WITH PHYSICAL DISABILITIES - COMPLAINTS, INVESTIGATIONS, AND SANCTIONS

Or. Admin. R. 411-052-0005 Temporary rule language in effect until 01/27/2027. Investigations and Inspections

(1) The LLA must conduct an in-person inspection of an AFH and all structures on the AFH property. The in-person inspection must be conducted:

(a) Before issuance of a license.

(b) No less than 90 or more than 120 days after the issuance of a license.

(d) Annually regardless of an approved two-year renewal cycle.

(e) Upon receipt of an oral or written complaint of violations that threaten the health, safety, or welfare of residents.

(f) Anytime the Department has probable cause to believe a home has violated a regulation or provision of these rules or is operating without a license.

(2) The Department may conduct inspections:

(a) Any time such inspections are authorized by these rules and any other time the Department considers it necessary to determine if a home is in compliance with these rules or with conditions placed upon the license.

(b) To determine if cited violations have been corrected.

(3) State or local fire inspectors must be permitted access to enter and inspect AFHs regarding fire safety upon the Department's request.

(4) The Department, the LLA, the investigative authority, the Oregon Health Authority (OHA), and the Centers for Medicare and Medicaid Services (CMS) have authority and must have full access to examine and copy facility and resident records, including, but not limited to, Residency Agreements, and resident account records, as applicable.

(5) The Department, LLA, investigative authority, OHA, and CMS staff have authority to interview the licensee, administrator, resident manager, other caregivers, and the residents. Interviews must be confidential and conducted privately.

(6) Licensees must authorize all staff to permit the Department, LLA, the investigative authority, OHA and CMS staff, for the purpose of inspection, investigation, and other duties within the scope of the inspector's or investigator's authority:

(a) Entrance to the AFH and any other structure on the premises; and

(b) Access to resident and facility records.

(7) The Department, LLA, the investigative authority, OHA, and CMS has authority to conduct inspections with or without advance notice to the licensee, staff, or the residents of the home. The Department, LLA, and CMS shall not give advance notice of any inspection if it is believed that notice might obstruct or seriously diminish the effectiveness of the inspection or enforcement of these rules. State personnel and representatives are required to show Department issued identification in compliance with the Department’s October 09, 2020, policy.

(8) If the Department, LLA, investigative authority, OHA or CMS staff are not permitted access for inspection, a search warrant may be obtained.

(9) The inspector must respect the private possessions of the residents, licensee, and staff while conducting an inspection.

(10) ABUSE REPORTING. Abuse is prohibited. The facility employees and licensee may not permit, aid, or engage in abuse of residents. Abuse and suspected abuse must be reported in accordance with OAR 411-020-0020.

(a) MANDATORY REPORTING. The licensee and all facility employees are mandatory reporters and must immediately report abuse and suspected abuse, including events overheard or witnessed by observation to the investigative authority.

(b) LAW ENFORCEMENT AGENCY. The local law enforcement agency must be called first when the suspected abuse is believed to be a crime (e.g., rape, murder, assault, burglary, kidnapping, theft of controlled substances).

(11) IMMUNITY AND PROHIBITION OF RETALIATION.

(a) The licensee or administrator shall not interfere with a good faith disclosure of information by an employee or volunteer concerning the abuse or mistreatment of a resident in the adult foster home. The information that is shared may include the reporting of violations of licensing or certification requirements, criminal activity at the adult foster home, violations of state or federal laws or any practice that threatens the health and safety of a resident being made to:

(A) The Long-Term Care Ombudsman, the Oregon Department of Human Services, a law enforcement agency or other entity with legal or regulatory authority over the adult foster home; or

(B) A family member, guardian, friend or other person who is acting on behalf of the resident.

(b) Interfering with the disclosure of information could include the following measures:

(A) By training an employee or volunteer to sign a nondisclosure or similar agreement prohibiting the employee or volunteer from disclosing the information; or

(B) By taking actions or communicating to the employee or volunteer that the employee or volunteer may not disclose the information.

(c) The licensee or administrator shall not retaliate against any resident after the resident or someone acting on the resident's behalf has filed a complaint in any manner, including, but not limited to:

(A) Increasing or threatening to increase charges.

(B) Decreasing or threatening to decrease services.

(D) Taking or threatening to take any action to coerce or compel the resident to leave the facility.

(E) Threatening to harass or abuse a resident in any manner.

(d) The licensee or administrator must ensure any complainant, witness, or employee of a facility is not subjected to retaliation by any caregiver, (including the caregiver's family and friends who may live in or frequent the AFH) for making a report, being interviewed about a complaint, or being a witness, including, but not limited to, restriction of access to the home or a resident or, if an employee, dismissal or harassment.

(e) Anyone who, in good faith, reports abuse or suspected abuse has immunity, as approved by law, from any civil liability that might otherwise be incurred or imposed with respect to the making or content of an abuse complaint.

(12) Immunity under this rule does not protect self-reporting licensees from liability for the underlying conduct that is alleged in the complaint.

(13) Any person who believes these rules have been violated may file a complaint with the Department, the LLA, or the investigative authority.

(14) The Department or the investigative authority shall investigate complaints in accordance with the adult protective services rules in OAR chapter 411, division 20.

(15) Immediate protection shall be provided for the residents by the Department, the LLA, or the investigative authority, as necessary, regardless of whether the investigative report is completed. The licensee or administrator must immediately cease any practice that places a resident at risk of serious harm.

(16) A copy of the entire investigation report shall be sent to the Department upon completion of the investigation report.

(17) PUBLIC FILE. Comply with the Department's June 30, 2019, Public File policy for maintaining current information on all licensed adult foster homes. The Department's Public File policy can be found at the Local Licensing Authority.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775 & 443.790
Statutes/Other Implemented: ORS 124.050, 124.060, 124.075, 409.050, 410.070, 413.085, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 20-2026, temporary amend filed 07/29/2026, effective 08/01/2026 through 01/27/2027
APD 60-2021, amend filed 12/23/2021, effective 01/01/2022
APD 22-2020, amend filed 06/16/2020, effective 06/24/2020
APD 50-2019, temporary amend filed 12/19/2019, effective 01/01/2020 through 06/28/2020
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-052-0010 Letter of Determination

(1) Upon a determination of substantiated abuse or a rule violation, the Department must provide written letter of determination to the licensee. The written notice 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 inconclusive.

(d) For each substantiated allegation, state whether the violation was abuse or another rule violation.

(e) Include a copy of the complaint investigation report.

(f) State that the complainant, any person reported to have committed wrongdoing, and the facility have 15 calendar days to provide additional or different information.

(g) For each allegation, explain the applicable appeal rights available.

(2) APPORTIONMENT. If the Department determines there is substantiated abuse, the Department may determine the licensee, an individual, or both the licensee and an individual were responsible for abuse. In determining responsibility, the Department shall consider intent, knowledge, and ability to control, and adherence to professional standards, as applicable.

(a) LICENSEE RESPONSIBLE. Examples of when the Department shall determine the licensee is responsible for the abuse include, but are not limited to, the following, failure to:

(A) Provide sufficient, qualified staffing in accordance with these rules without reasonable effort to correct.

(B) Check for or act upon relevant information available from a licensing board.

(D) Adequately train, orient, or provide sufficient oversight to staff.

(E) Provide adequate oversight to residents.

(F) Allow sufficient time to accomplish assigned tasks.

(G) Provide adequate services.

(H) Provide adequate equipment or supplies.

(I) Follow orders for treatment or medication.

(b) INDIVIDUAL RESPONSIBLE. Examples of when the Department determines an individual is responsible include, but is not limited to:

(A) Intentional acts against a resident, including assault, rape, kidnapping, murder, or sexual, verbal, or mental abuse.

(B) Acts contradictory to clear instructions from the facility, such as those identified in section (2)(a) of this rule, unless the act is determined by the Department to be the responsibility of the facility.

(D) Intentional acts against a resident's property (e.g., theft or 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.

(d) NURSING ASSISTANTS. In cases of substantiated abuse by a nursing assistant, the written notice shall explain:

(A) The Department's intent to enter the finding of abuse into the Nursing Assistant Registry following the procedure set out in OAR 411-089-0140.

(B) The nursing assistant's right to provide additional information and request a contested case hearing as provided in OAR 411-089-0140.

(3) DISTRIBUTION.

(a) The written notice shall be mailed to:

(A) The licensee.

(B) Any person reported to have committed wrongdoing.

(D) The Long-term Care Ombudsman.

(E) The LLA.

(b) A copy of the written notice must be placed in the Department's facility complaint file.

(4) Upon receipt of a notice that substantiates abuse for victims covered by ORS 430.735, the facility must provide written notice of the findings to the individual found to have committed abuse, residents of the facility, and the residents' case manager and representatives.

(5) Licensees who acquire substantiated complaints pertaining to the health, safety, or welfare of residents may be assessed civil penalties, have conditions placed on their licenses, or have their licenses suspended, revoked, or not renewed.

(6) COMPLAINT REPORTS. Copies of all completed complaint reports must be maintained and available to the public at the LLA. Individuals may purchase a photocopy upon requesting an appointment to do so.

(7) The Department and the LLA shall not disclose information that may be used to identify a resident in accordance with OAR 411-020-0030 (Confidentiality) and federal HIPAA Privacy Rules. Completed reports placed in the public file must comply with OAR 411-052-0005 and must:

(a) Protect the privacy of the complainant and the resident. The identity of the person reporting suspected abuse must be confidential and may be disclosed only with the consent of that person, by judicial process (including administrative hearing), or as required to perform the investigation by the Department or a law enforcement agency.

(b) Treat the names of the witnesses as confidential information.

(A) PENDING COMPLAINT REPORTS. Any information regarding the investigation of the complaint may not be filed in the public file until the investigation has been completed.

(B) COMPLAINT REPORTS AND RESPONSES. The investigation reports, including copies of the responses with confidential information deleted, must be available to the public at the LLA office along with other public information regarding the AFH.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730 & 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, 443.790
Statutes/Other Implemented: ORS 124.050, 124.060, 124.075, 409.050, 410.070, 413.085 & 443.001 - 443.004, 443.705 - 443.825, 443.875, 443.991
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-052-0015 Procedures for Correction of Violations

(1) If, as a result of an inspection or investigation, the Department determines that abuse has occurred, the licensee shall be notified verbally to immediately cease the abusive act. The Department shall follow-up with a written confirmation of the warning to cease the abusive act and shall include notification that further sanctioning may be imposed.

(2) If an inspection or investigation indicates a violation of these rules other than abuse, the LLA shall notify the licensee of the violation in writing.

(3) The notice of violation may not include information that may be used to identify a resident in accordance with OAR 411-020-0030, Confidentiality, and federal HIPAA Privacy Rules. Notices placed in the public file must comply with OAR 411-052-0005 and must include the following:

(a) A description of each condition that constitutes a violation.

(b) Each rule that has been violated.

(c) A specific time frame for correction, not to exceed 30 calendar days after receipt of the notice. The LLA may approve a reasonable time of more than 30 calendar days if correction of the violation within that time frame is not practical. If the licensee or administrator requests more than 30 calendar days to correct the violation, such time must be specified in the licensee or administrator's plan of correction and must be found acceptable by the LLA.

(d) Sanctions that may be imposed against the home for failure to correct the violation.

(e) The right of the licensee to contest the violation if an administrative sanction is imposed.

(f) The right of the licensee to request a variance as provided in OAR 411-049-0160.

(4) At any time after receipt of a notice of violation or an inspection report, a meeting may be requested by the applicant, the licensee, the LLA, or the Department. The meeting must be requested within 21 calendar days and be scheduled within 10 business days of a request by any party.

(a) The purpose of the meeting is to discuss the violation stated in the notice of violation, provide information, and to assist the applicant or licensee in achieving compliance with the requirements of these rules.

(b) The request for a meeting by an applicant, licensee, LLA, or the Department does not extend any previously established time frame for correction.

(5) The applicant or licensee must notify the LLA of correction of the violation by completing a written response in the licensee or administrator's statement of correction section on the violation. Notification of correction of the violation must be submitted to the LLA no later than the date specified in the notice of violation.

(6) The LLA may conduct a re-inspection of the home after the date the LLA receives the report of compliance, or after the date the violation must be corrected as specified in the notice of violation.

(7) For violations that present an imminent danger to the health, safety, or welfare of residents, the licensee or administrator must correct the violation and abate the conditions no later than 24 hours after receipt of the notice of violation. The LLA may inspect the home after the 24-hour period to determine if the violation has been corrected as specified in the notice of violation.

(8) If residents are in immediate danger, the license may be immediately suspended, and arrangements made to move the residents.

(9) If after inspection of a home, the violations have not been corrected by the date specified in the notice of violation, or if the LLA has not received a report of compliance, the Department may institute one or more administrative sanctions.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775 & 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 60-2021, amend filed 12/23/2021, effective 01/01/2022
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-052-0020 Sanctions - Administrative

(1) An administrative sanction may be imposed for non-compliance with these rules. An administrative sanction includes one or more of the following actions:

(a) Attachment of conditions to a license.

(b) Civil penalties.

(d) Reclassification of a license.

(2) If the Department imposes an administrative sanction, the Department shall serve a notice of administrative sanction upon the licensee personally, by certified or registered mail or, if requested by the licensee, by certified electronic mail.

(3) The notice of administrative sanction shall state:

(a) Each sanction imposed.

(b) A short and plain statement of each condition or act that constitutes a violation.

(d) A statement of the licensee's right to a contested case hearing.

(e) A statement of the authority and jurisdiction under which the hearing is to be held.

(f) A statement that the Department's files on the subject of the contested case automatically become part of the contested case record upon default for the purpose of proving a prima facie case.

(g) A statement that the Department shall issue a final order of default if the licensee fails to request a hearing within the specified time.

(4) FINAL ORDER. The licensee must comply with any final order of the Department.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730 & 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, 443.790
Statutes/Other Implemented: ORS 124.050, 124.060, 124.075, 409.050, 410.070, 413.085 & 443.001 - 443.004, 443.705 - 443.825, 443.875, 443.991
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-052-0025 Sanctions - Civil Penalties

(1) Except as otherwise provided in this rule, civil penalties of not less than $100 per violation, and not more than $250 per violation may be assessed for a general violation of these rules.

(2) Mandatory penalties up to $500, unless otherwise required by law, shall be assessed for falsifying resident or facility records or causing another to do so.

(3) A mandatory penalty of $250 shall be imposed for failure to have either the licensee or other qualified caregiver on duty 24 hours per day in the AFH.

(4) A mandatory penalty of not less than $100 and not more than $250 shall be imposed for dismantling or removing the battery from, or failing to install, any required smoke or carbon monoxide alarm.

(5) The Department shall impose a civil penalty of not less than $250 and no more than $500 on a licensee who admits a resident knowing that the resident's care needs exceed the license classification of the licensee and the admission places the resident or other residents at risk of harm.

(6) A mandatory penalty of $500 shall be assessed for interfering with or retaliating against an individual making a good faith disclosure of information concerning the abuse or mistreatment of an individual receiving care and services in an adult foster home.

(7) Civil penalties of not less than $100 and not more than $1,000 per occurrence may be assessed for substantiated abuse.

(8) If the Department, or the Department's designee, conducts an investigation and abuse is substantiated and if the abuse resulted in the death, serious injury, rape, or sexual abuse of a resident, the Department shall impose a civil penalty of not less than $2,500 for each violation.

(a) To impose this civil penalty, the Department must establish:

(A) The abuse arose from deliberate or other than accidental action or inaction.

(B) The conduct resulting in the abuse was likely to cause death, serious injury, rape, or sexual abuse of a resident.

(b) For the purposes of this civil penalty, the following definitions apply:

(A) "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.

(B) "Rape" means rape in the first, second, or third degree as described in ORS 163.355, 163.365, and 163.375.

(C) "Sexual abuse" means any form of nonconsensual sexual contact including, but not limited to, unwanted or inappropriate touching, 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.

(D) "Other than accidental" means failure on the part of the licensee, or licensee's employees, agents, or volunteers for whose conduct licensee is responsible, to comply with applicable Oregon Administrative Rules.

(9) In addition to any other liability or penalty provided by law, the Department may impose a penalty for any of the following:

(a) Operating the home without a license.

(b) The number of residents exceeds the licensed capacity.

(c) The licensee fails to achieve satisfactory compliance with the requirements of these rules within the time specified or fails to maintain such compliance.

(d) The home is unable to provide adequate level of care to the residents.

(e) There is retaliation or discrimination against a resident, family, employee, volunteer or any other person for making a complaint against the home.

(f) The licensee fails to cooperate with the Department or fails to cooperate with the prescribing practitioner or licensed health care professional in carrying out a resident's care plan.

(g) The licensee fails to obtain an approved background check from the Department before employing a caregiver in the home.

(10) A civil penalty may be imposed for violations other than those involving the health, safety, or welfare of a resident if the licensee fails to correct the violation as required when a reasonable time frame for correction was given.

(11) Violations requiring a mandatory civil penalty that occurred while the licensee was operating the AFH will be imposed by the Department, even if the licensee subsequently closes the home or voluntarily surrenders the license.

(12) Any civil penalty imposed under this rule becomes due and payable 10 calendars days after the order imposing the civil penalty becomes final by operation of law or on appeal. The notice must be delivered in person or sent by registered or certified mail and must include:

(a) A reference to the sections of the statute, rule, standard, or order involved.

(b) A short and plain statement of the matters asserted or charged.

(d) A statement of the right to request a hearing.

(13) The person to whom the notice is addressed shall have 20 calendar days from the date the notice is mailed to make written application for a hearing. If a written request for a hearing is not timely received, the Department shall issue a final order by default.

(14) All hearings shall be conducted according to the applicable provisions of ORS 183.

(15) When imposing a civil penalty, the Department shall consider the following factors:

(a) The history of the person incurring the penalty in taking all feasible steps or procedures to correct the violation.

(b) Any prior violations of statutes, rules, or orders pertaining to the facility.

(d) The immediacy and extent to which the violation threatens or threatened the health, safety, or welfare of one or more residents.

(e) The degree of harm to residents.

(16) If the person notified fails to request a hearing within the time specified, or if after a hearing the person is found to be in violation of a license, rule, or order, an order may be entered assessing a civil penalty.

(17) Unless the penalty is paid within 10 calendar days after the order becomes final, the order constitutes a judgment and may be recorded by the county clerk, which becomes a lien upon the title to any interest in real property owned by that person. The Department may also initiate a notice of revocation for failure to comply with a final order.

(18) Civil penalties are subject to judicial review under ORS 183.480, except that the court may, at its discretion, reduce the amount of the penalty.

(19) All penalties recovered under ORS 443.790 to 443.815 are paid to the Quality Care Fund.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730 & 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, 443.790
Statutes/Other Implemented: ORS 124.050, 409.050, 410.070, 413.085, 443.001 - 443.004 & 443.705 - 443.825, 443.875, 443.991
APD 22-2020, amend filed 06/16/2020, effective 06/24/2020
APD 50-2019, temporary amend filed 12/19/2019, effective 01/01/2020 through 06/28/2020
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-052-0030 Sanctions - Conditions

(1) Conditions may be attached to a license and take effect immediately upon notification by the Department or the delivery date of the notice, whichever is sooner. The type of condition attached to a license must directly relate to a risk of harm or potential risk of harm to residents. Conditions may be attached upon a finding that:

(a) Information on the application or initial inspection requires a condition to protect the health, safety, or welfare of the residents.

(b) A threat to the health, safety, or welfare of a resident exists.

(d) The licensee or caregivers demonstrate the inability to meet the evacuation times described in OAR 411-050-0720.

(e) The home is not being operated in compliance with these rules.

(2) Examples of conditions that may be imposed on a licensee include, but are not limited to:

(a) Restricting the total number of residents based upon the ability of the licensee to meet the health and safety needs of the residents.

(b) Restricting the number of residents, a licensee may admit or retain within a specific classification or level based upon the ability of the licensee and staff to meet the health and safety needs of all the residents.

(c) Changing the classification of the license based on the licensee's ability to meet the specific care needs of the residents.

(d) Requiring additional staff to meet the resident's care needs.

(e) Requiring additional qualifications or training of licensee and staff to meet specific resident care needs.

(f) Restricting admissions when there is a threat to the current residents of the home and admitting new residents would compound that threat.

(g) Restricting a licensee from allowing persons on the premises who may be a threat to a resident's health, safety or welfare.

(3) In accordance with OAR 411-052-0020(1)(a) through (d), the licensee shall be notified in writing of any conditions imposed, the reason for the conditions, and be given an opportunity to request a hearing under ORS 183.411 to 183.502. A licensee must request a hearing in writing within 21 calendar days after the date the notice was personally served or mailed. Conditions take effect immediately and are a final order of the Department unless later rescinded through the hearings process.

(4) In addition to, or in-lieu of, a contested case hearing, a licensee may request an informal conference with the Department to discuss conditions imposed. The informal conference does not diminish the licensee's right to a hearing.

(5) Conditions imposed remain in effect until the Department has sufficient cause to believe the situation that warranted the condition has been remedied. If the licensee believes the situation that warranted the condition has been remedied, the licensee may request in writing that the condition be removed.

(6) Conditions must be posted with the licensee in a prominent place in the home and be available for inspection at all times.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730 & 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, 443.790
Statutes/Other Implemented: ORS 124.050, 124.060, 124.075, 409.050, 410.070, 413.085 & 443.001 - 443.004, 443.705 - 443.825, 443.875, 443.991
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-052-0035 Temporary rule language in effect until 01/27/2027. Sanctions - Denial, Revocation, or Non-Renewal of License

(1) The Department shall deny, revoke, or refuse to renew a license where the Department finds:

(a) There has been substantial non-compliance with these rules or where there is substantial non-compliance with local codes and ordinances or any other state or federal law or rule applicable to the health and safety of caring for residents in an AFH.

(b) The Department has conducted a background check and determined the applicant, or licensee is not approved in accordance with OAR 411-049-0120.

(c) The licensee allows a caregiver, or any other person, excluding the residents, to reside or work in the AFH, who has been convicted of potentially disqualifying crimes, and has been denied, or refused to cooperate with the Department in accordance with OAR 411-049-0120.

(d) The applicant or licensee falsely represents that he or she has not been convicted of a crime.

(2) The Department shall deny, revoke, or refuse to renew a license where the Department has received notice from the Department of Revenue in accordance with ORS 305.385.

(3) The Department may deny, revoke, or refuse to renew an AFH license if the applicant or licensee:

(a) Submits incomplete or untrue information to the Department.

(b) Has a history of, or demonstrates financial insolvency, such as foreclosure, eviction due to failure to pay rent, or termination of utility services due to failure to pay bills.

(c) Has a prior denial, suspension, revocation, or refusal to renew a certificate or license to operate a foster home or residential care facility in this or any other state or county.

(d) Is associated with a person whose license for a foster home or residential care facility was denied, suspended, revoked, or refused to be renewed due to abuse or neglect of the residents, creating a threat to the residents, or failure to possess physical health, mental health, or good personal character within three years preceding the present action, unless the applicant or licensee is able to demonstrate to the Department by clear and convincing evidence that the person does not pose a threat to the residents. For purposes of this subsection, an applicant or licensee is "associated with" a person if the applicant or licensee:

(A) Resides with the person.

(B) Employs the person in the AFH.

(D) Receives managerial assistance from the person for the benefit of the AFH.

(E) Allows the person to have access to the AFH.

(F) Rents or leases the AFH from the person.

(e) Has threatened the health, safety, or welfare of any resident.

(f) Has abused, neglected, or exploited any resident.

(g) Has interfered with an individual who has made a good faith disclosure of information concerning the abuse or mistreatment of a resident receiving care and services in an adult foster home.

(h) Has a medical or psychiatric problem that interferes with the ability to provide care and services.

(i) Has previously been cited for the operation of an unlicensed AFH.

(j) Does not possess the good judgment or character deemed necessary by the Department.

(k) Fails to correct a violation within the specified time frame.

(l) Refuses to allow access and inspection.

(m) Fails to comply with a final order of the Department to correct a violation of the rules for which an administrative sanction has been imposed, such as a license condition.

(n) Fails to comply with a final order of the Department imposing an administrative sanction, including the imposition of a civil penalty.

(o) Fails to take or pass the Department's Ensuring Quality Care course and examination.

(p) Fails to obtain an approved background check for subject individuals according to OAR 411-049-0120 on more than one occasion.

(q) Has previously surrendered a license while under investigation or administrative sanction during the last three years.

(r) Is not currently or has not previously been in compliance with employment or tax laws.

(s) Fails to operate the home or any other facility in substantial compliance with ORS 443.705 to 443.825.

(4) If the Department issues a notice of revocation for the reason of abuse, neglect, or exploitation of a resident, the licensee may request a review in writing within 10 calendar days from the date the notice of revocation was mailed. If a request is made, the Department must review all material relating to the allegation of abuse, neglect, or exploitation and the revocation within 10 calendar days. The Department shall determine, based on a review of the material, whether to sustain the decision. If the Department does not sustain the decision, the license shall be restored immediately. The decision of the Department is subject to a contested case hearing under ORS 183.

(5) If a license is revoked, the licensee is entitled to a contested case hearing preceding the effective date of the revocation, if the licensee requests a hearing in writing within 21 calendar days from the date the notice is mailed. If no written request for a hearing is timely received, the Department shall issue the final order by default. The Department may designate its file as the record for purposes of default.

(6) A license that will not be renewed or is subject to revocation remains valid during an administrative hearings process even if the hearing and final order are not issued after the expiration date of the license.

(7) If a license is denied or not renewed for any reason other than the results of a test or inspection, the applicant is entitled to a hearing if the applicant requests a hearing in writing within 60 calendar days from the date the notice was mailed. If no written request for a hearing is timely received, the Department shall issue a final order by default. The Department may designate its file as the record for purposes of default.

(8) If a license is revoked or not renewed, the Department may arrange for residents to move for their protection.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 430.735, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775 & 443.790
Statutes/Other Implemented: ORS 124.050, 124.060, 124.075, 409.050, 410.070, 413.085, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
APD 20-2026, temporary amend filed 07/29/2026, effective 08/01/2026 through 01/27/2027
APD 60-2021, amend filed 12/23/2021, effective 01/01/2022
APD 22-2020, amend filed 06/16/2020, effective 06/24/2020
APD 50-2019, temporary amend filed 12/19/2019, effective 01/01/2020 through 06/28/2020
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-052-0040 Sanctions - Suspension of License

(1) The Department may immediately suspend a license for reason of abuse, neglect, or exploitation of a resident if:

(a) The Department finds that the abuse, neglect, or exploitation causes an immediate threat to any of the residents.

(b) The licensee fails to operate the home or any other facility in substantial compliance with ORS 443.705 to 443.825.

(2) The licensee may request a review of the decision to immediately suspend a license by submitting a request in writing, within 10 calendar days from the date the notice and order of suspension was mailed. Within 10 calendar days after receipt of the licensee's request for a review, the Department must review all material relating to the allegation of abuse, neglect, or exploitation and to the suspension, including any written documentation submitted by the licensee within that time frame. The Department shall determine, based on a review of the material, whether to sustain the decision. If the Department does not sustain the decision, the suspension shall be rescinded immediately. The decision of the Department is subject to a contest case hearing under ORS 183 if requested with 90 calendar days.

(3) The Department shall suspend a license upon written notice from the Department of Revenue in accordance with ORS 305.385, and after notice to the licensee and a hearing if requested.

(4) If a license is suspended, the Department may arrange for residents to move for their protection.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730 & 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 443.001-443.004, 443.705-443.825 & 443.875, 443.991
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Or. Admin. R. 411-052-0045 Criminal Penalties

(1) Operating an AFH without a license is punishable as a Class C misdemeanor per ORS 443.991(5).

(2) Refusing to allow access and inspection of a home by Department or LLA staff or state or local fire inspection is a Class B misdemeanor per ORS 443.991(6).

(3) The Department may commence an action to enjoin operation of an AFH:

(a) When an AFH is operated without a valid license.

(b) After a notice of revocation or suspension has been given and a reasonable time for placement of individuals in other facilities has been allowed.

History

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 443.001, 443.004, 443.725, 443.730 & 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 443.001 - 443.004, 443.705 - 443.825, 443.875, 443.991
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019

Division 54 RESIDENTIAL CARE AND ASSISTED LIVING FACILITIES

Or. Admin. R. 411-054-0000 Purpose

(1) The purpose of these rules is to establish standards for assisted living and residential care facilities that promote the availability of a wide range of individualized services for elderly and persons with disabilities, in a homelike environment. The standards are designed to enhance the dignity, independence, individuality, and decision making ability of the resident in a safe and secure environment while addressing the needs of the resident in a manner that supports and enables the individual to maximize abilities to function at the highest level possible.

(2) Residential care and assisted living facilities are also required to adhere to Home and Community-Based Services, OAR 411-004. For purposes of these rules, all residential care and assisted living facilities are considered home and community-based care settings and therefore shall be referred to as "facility".

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
APD 10-2016, f. 6-27-16, cert. ef. 6-28-16
APD 26-2015(Temp), f. 12-29-15, cert. ef. 1-1-16 thru 6-28-16
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0005 Temporary rule language in effect until 02/05/2027. Definitions

For the purpose of these rules, the following definitions apply:

(1) "Abuse" means abuse as defined in OAR 411-020-0002 (Adult Protective Services).

(3) "Acuity-Based Staffing Tool (ABST)" means the tool described in ORS 443.432 or an acuity-based staffing tool adopted by a facility that meets requirements established by the Department in OAR 411-054-0037. An ABST is used by a facility to assess the acuity of each resident and determine the amount of staff time necessary to meet the 24-hour scheduled and unscheduled needs of each resident. Facilities may choose to use the ABST established by the Department, or use another Department-approved ABST.

(4) “ABST Care Elements” means the required individual care elements that must be addressed and documented in a resident’s ABST evaluation as outlined in OAR 411-054-0037(3).

(5) "Acute Sexual Assault" means any non-consensual or unwanted sexual contact that warrants medical treatment or forensic collection.

(6) "Administrator" means the person who is designated by the licensee that is responsible for the daily operation and maintenance of the facility as described in OAR 411-054-0065.

(7) "Advance Directive" means a document that contains a health care instruction or a power of attorney for health care.

(8) "Aging and People with Disabilities (APD)" means the program area of Aging and People with Disabilities, within the Department of Human Services.

(9) "Applicant" means the individual, individuals, or entity, required to complete a facility application for license.

(a) Except as set forth in OAR 411-054-0013(1)(c), applicant includes a sole proprietor, each partner in a partnership, and each member with a 10 percent or more ownership interest in a limited liability company, corporation, or entity that:

(A) Owns the residential care or assisted living facility business; or

(B) Operates the residential care or assisted living facility on behalf of the facility business owner.

(b) Except as set forth in OAR 411-054-0013(1)(c), for those who serve the Medicaid population, applicant includes a sole proprietor, each partner in a partnership, and each member with a five percent or more ownership interest in a limited liability company, corporation, or entity that:

(A) Owns the residential care or assisted living facility business; or

(B) Operates the residential care or assisted living facility on behalf of the facility business owner.

(10) "Approved Dementia Training" means a dementia training curriculum approved by an entity selected by the Department to be an approving entity pursuant to a Request for Application (RFA) process.

(11) "Area Agency on Aging (AAA)" as defined in ORS 410.040 means the Department designated agency charged with the responsibility to provide a comprehensive and coordinated system of services to seniors or individuals with disabilities in a planning and service area. For the purpose of these rules, the term Area Agency on Aging is inclusive of both Type A and B Area Agencies on Aging that contract with the Department to perform specific activities in relation to residential care and assisted living facilities including:

(a) Conducting inspections and investigations regarding protective service, abuse, and neglect.

(b) Monitoring.

(c) Making recommendations to the Department regarding facility license approval, denial, revocation, suspension, non-renewal, and civil penalties.

(12) "Assisted Living Facility (ALF)" means a building, complex, or distinct part thereof, consisting of fully, self-contained, individual living units where six or more seniors and adult individuals with disabilities may reside in homelike surroundings. The assisted living facility offers and coordinates a range of supportive services available on a 24-hour basis to meet the activities of daily living, health, and social needs of the residents as described in these rules. A program approach is used to promote resident self-direction and participation in decisions that emphasize choice, dignity, privacy, individuality, and independence.

(13) "Building Codes" are comprised of the set of specialty codes, including the Oregon Structural Specialty Code (OSSC), Oregon Mechanical Specialty Code (OMSC), Oregon Electrical Specialty Code (OESC), Oregon Plumbing Specialty Code (OPSC), and their reference codes and standards.

(14) "Caregiver" means a facility employee who is either direct care staff or a universal worker, who is trained in accordance with OAR 411-054-0070 to provide personal care services to residents.

(15) "Change in Use" means altering the purpose of an existing room, within the facility, that requires structural changes.

(16) "Change of Condition - Short-Term" means a change in the resident's health or functioning, that is expected to resolve or be reversed with minimal intervention, or is an established, predictable, cyclical pattern associated with a previously diagnosed condition.

(17) "Change of Condition - Significant" means a major deviation from the most recent evaluation, that may affect multiple areas of functioning or health, that is not expected to be short-term, and imposes significant risk to the resident. Examples of significant change of condition include, but are not limited to:

(a) Broken bones.

(b) Stroke, heart attack, or other acute illness or condition onset.

(d) Uncontrolled pain.

(e) Fast decline in activities of daily living.

(f) Significant unplanned weight loss.

(g) Pattern of refusing to eat.

(h) Level of consciousness change.

(i) Pressure ulcers (stage 2 or greater).

(18) "Choice" means a resident has viable options that enable the resident to exercise greater control over their life. Choice is supported by the provision of sufficient private and common space within the facility that allows residents to select where and how to spend time and receive personal assistance.

(19) "CMS" means the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services.

(20) "Competency" means to possess specific knowledge, technical skill, and the ability to perform tasks related to the role and responsibilities of direct care staff.

(21) "Competency Assessment" means an evaluation of knowledge, technical skill and ability to carry out care pursuant to the requirements in OAR 411-054-0070. Evaluation shall include verification and documentation of direct care staff competency through observation, written testing or verbal testing.

(22) “Complainant” means a person or entity who initiates a complaint or grievance to the Department.

(23) "Condition" means a provision attached to a new or existing license that limits or restricts the scope of the license or imposes additional requirements on the licensee.

(24) “Consistently” means regularly and typically. This means occurring steadily and with regularity over a period of time.

(25) “Consumer Summary” means a summary of services provided by the facility. This statement also includes a summary of services not provided. This summary is one of the documents that must be provided to potential residents before move-in.

(26) "Conversion Facility (CF)" means a nursing facility that has followed the requirements in these rules to become a residential care facility through the conversion facility process.

(27) "Department" means the Oregon Department of Human Services (ODHS).

(28) “Designated Contact Person” means the individual identified by the resident, the resident’s guardian, or the resident’s legal representative to receive notices required under OAR 411-054-0035 and ORS 443.444.

(a) The designated contact person may be the same individual as the resident’s designated representative or legal representative.

(b) A resident is not required to identify a designated contact person if the resident, guardian, or legal representative declines to do so as permitted by ORS 443.444.

(29) "Designated Representative" means:

(a) Any adult, such as a parent, family member, guardian, advocate, or other person, who is:

(A) Chosen by the individual or, as applicable, the legal representative;

(B) Not a paid provider for the individual; and

(b) An individual or the legal representative of the individual is not required to appoint a designated representative.

(30) "Dignity" means providing support in such a way as to validate the self-worth of the individual. Dignity is supported by creating an environment that allows personal assistance to be provided in privacy and by delivering services in a manner that shows courtesy and respect.

(31) "Direct Care Staff" means a facility employee whose primary responsibility is to provide personal care services to residents.

(a) These personal care services may include:

(A) Medication administration.

(B) Individualized resident-focused activities, as outlined in a resident’s person-centered service plan.

(D) Supervision and support of residents.

(E) Serving meals, but not meal preparation.

(b) Employees such as activity staff, activity coordinators, and activity directors whose primary or sole responsibility is to provide social activities are not considered direct care staff.

(32) "Directly Supervised" means a qualified staff member maintains visual contact with the supervised staff.

(33) "Director" means the Director of the Department or that individual's designee.

(34) "Disaster" means a sudden emergency occurrence beyond the control of the licensee, whether natural, technological, or man-made, that renders the licensee unable to operate the facility or makes the facility uninhabitable.

(35) "Disclosure Statement" means the written information the facility is required to provide to consumers to enhance the understanding of facility costs, services, and operations.

(36) "Entity" means an individual, a trust or estate, a partnership, a corporation (including associations, joint stock companies, and insurance companies), a state, or a political subdivision or instrumentality, including a municipal corporation of a state.

(37) "Exception" means a written variance granted by the Department from a regulation or provision of these rules.

(38) "Facility" means the residential care or assisted living facility licensee and the operations, policies, procedures, and employees of the residential care or assisted living facility. For purposes of HCBS, "facility" can also mean "provider".

(39) “Guardian” means the resident’s legal guardian appointed by a judge as outlined in ORS chapter 125.

(40) “Gender expression” means an individual’s gender-related appearance and behavior, whether or not these are stereotypically associated with the sex the individual was assigned at birth.

(41) “Gender identity” means an individual’s internal, deeply held knowledge or sense of the individual’s gender, regardless of physical appearance, surgical history, genitalia, legal sex, sex assigned at birth or name and sex as it appears in medical records or as it is described by any other individual, including a family member, conservator or legal representative of the individual. An individual’s gender identity is the last gender identity expressed by an individual who lacks the present ability to communicate.

(42) “Gender nonconforming” means having a gender expression that does not conform to stereotypical expectations of one’s gender.

(43) “Gender transition” means a process by which an individual begins to live according to that individual’s gender identity rather than the sex the person was assigned at birth. The process may or may not include changing the individual’s clothing, appearance, name or identification documents or undergoing medical treatments.

(44) “Harass” or “harassment” means to act in a manner that is unwanted, unwelcomed or uninvited, or that demeans, threatens or offends a resident.

(a) This includes bullying, denigrating or threatening a resident based on a resident’s actual or perceived status as a member of one of the protected classes in Oregon, as provided:

(A) Race.

(B) Color.

(D) Religion.

(E) Disability.

(F) Sex (includes pregnancy).

(G) Sexual orientation.

(H) Gender identity.

(I) Age.

(J) Marital status.

(b) An example of “harassment” includes, but is not limited to, requiring a resident to show identity documents in order to gain entrance to a restroom or other area of a facility that is available to other individuals of the same gender identity as the resident.

(45) "FPS" means the Facilities, Planning, and Safety Program within the Public Health Division of the Oregon Health Authority (OHA).

(46) "HCB" means "Home and Community-Based."

(47) "HCBS" means "Home and Community-Based Services." HCBS are services provided in the home or community of an individual. ODHS, Safety, Oversight and Quality and OHA provide oversight and license, certify, and endorse programs, settings, or settings designated as HCB.

(48) “Health Care Facility” means a facility, as defined in ORS 442.015(12)(a), that provides acute care or a higher level of care to a resident according to OAR 411-054-0080.

(49) "Homelike Environment" means a living environment that creates an atmosphere supportive of the resident's preferred lifestyle. Homelike environment is also supported by the use of residential building materials and furnishings.

(50) "Hospice Program" means a coordinated program of home and inpatient care, available 24 hours a day, that utilizes an interdisciplinary team of personnel trained to provide palliative and supportive services to a patient-family unit experiencing a life-threatening disease with a limited medical prognosis. A hospice program is an institution for purposes of ORS 146.100.

(51) "Immediate Jeopardy" means a situation where the failure of a residential care facility to comply with a Department rule has caused, or is likely to cause, a resident:

(a) Serious injury;

(b) Serious harm;

(d) Death.

(52) "Incident of Ownership" means an ownership interest, an indirect ownership interest, or a combination of direct and indirect ownership interests.

(53) “Inconclusive” means that, after analyzing all evidence collected during a complaint investigation, a determination cannot be made regarding whether a licensing violation occurred. For the definition of inconclusive for the purpose of abuse findings refer to OAR 411-020-0002.

(54) "Independence" means supporting resident capabilities and facilitating the use of those abilities. Creating barrier free structures and careful use of assistive devices supports independence.

(55) "Indirect Ownership Interest" means an ownership interest in an entity that has an ownership interest in another entity. Indirect ownership interest includes an ownership interest in an entity that has an indirect ownership interest in another entity.

(56) "Individual" means a person enrolled in or utilizing HCBS.

(57) "Individually-Based Limitation" means any limitation to the qualities outlined in OAR 411-004-0020 (1)(d) and (2)(d) to (2)(j), due to health and safety risks. An individually-based limitation is based on specific assessed need and only implemented with the informed consent of the individual, or as applicable, the legal representative, as described in OAR 411-004-0040.

(58) "Informed Consent" means options, risks, and benefits have been explained to an individual, and, as applicable, the legal representative of the individual, in a manner that the individual, and, as applicable, the legal representative, comprehends.

(59) "Individuality" means recognizing variability in residents' needs and preferences and having flexibility to organize services in response to different needs and preferences.

(60) "Intensive Intervention Community (IIC)" means an RCF endorsed to house fewer than six socially dependent individuals or individuals with physical disabilities. The purpose of the IIC is to serve individuals with co‑occurring mental, emotional, or behavioral disturbances who are more appropriately served in smaller settings.

(61) “Involuntary Move-Out” means a move out of a resident to which the resident or the resident’s legal representative does not agree.

(62) “Language Access” means the facility must take reasonable steps to provide meaningful language access to a resident with limited English proficiency or a resident with a disability that makes it difficult to communicate using standard English.

(63) "Legal Representative" means a person who has the legal authority to act for an individual.

(a) The legal representative only has authority to act within the scope and limits of his or her authority as designated by the court or other agreement. Legal representatives acting outside of his or her authority or scope must meet the definition of designated representative.

(b) For an individual 18 years of age and older, a guardian appointed by a court order or an agent legally designated as the health care representative, where the court order or the written designation provide authority for the appointed or designated person to make the decisions indicated where the term "legal representative" is used in this rule.

(c) The legal representative may be the same individual as the resident’s designated representative or designated contact person.

(64) “LGBTQIA2S+” means lesbian, gay, bisexual, transgender, queer, intersex, asexual, Two Spirit, nonbinary or other minority gender identity or sexual orientation. These terms are defined below:

(b) “Gay” means the sexual orientation of a person attracted to people of the same gender. Although often used as an umbrella term, it is used more specifically to describe men attracted to men.

(e) “Queer” means individuals who do not identify as exclusively straight or individual who have non-binary or gender-expansive identities and is often used as a catch-all to refer to the LGBTQIA2S+ population as a whole. This term was previously used as a slur but has been reclaimed by many parts of the LGBTQIA2S+ movement. It can also include transgender people who identify as male or female. The term should only be used to refer to a specific person if that person self-identifies as queer.

(f) “Intersex” means someone born with a variety of differences in their sex traits and reproductive anatomy. Intersex traits greatly vary, including differences in, but limited to, hormone production and reproductive anatomy.

(i) The “+” means all other identities and expressions of gender, romantic and sexual orientation, including minority gender identities.

(j) “Nonbinary” means a person who does not identify exclusively as a man or a woman. Non-binary people may identify as being both a man and a woman, somewhere in between, or as falling completely outside these categories. While many also identify as transgender, not all non-binary people do. Non-binary can also be used as an umbrella term encompassing identities such as agender, bigender, genderqueer or gender-fluid.

(65) "Licensed Nurse" means an Oregon licensed practical or registered nurse.

(66) "Licensee" means the entity that owns the residential care or assisted living facility business, and to whom an assisted living or residential care facility license has been issued.

(67) “Licensing Complaint Unit (LCU)” means the Safety, Oversight and Quality staff who investigate allegations of licensing violations.

(68) "Major Alteration":

(a) Means:

(A) Any structural change to the foundation, floor, roof, exterior, or load bearing wall of a building;

(B) The addition of floor area to an existing building; or

(C) The modification of an existing building that results in a change in use where such modification affects resident services or safety.

(b) Does not include cosmetic upgrades to the interior or exterior of an existing building (for example: changes to wall finishes, floorings, or casework).

(69) "Management" or "Operator" means possessing the right to exercise operational or management control over, or directly or indirectly conduct, the day-to-day operation of a facility.

(70) "Modified Special Diet" means a diet ordered by a physician or other licensed health care professional that may be required to treat a medical condition (for example: heart disease or diabetes).

(a) Modified special diets include, but are not limited to:

(A) Small frequent meals;

(B) No added salt;

(D) Simple textural modifications.

(b) Medically complex diets are not included.

(71) "New Construction" means:

(a) A new building.

(b) An existing building or part of a building that is not currently licensed.

(d) Additions, conversions, renovations, or remodeling of existing buildings.

(72) "Nursing Care" means the practice of nursing as governed by ORS chapter 678 and OAR chapter 851.

(73) "OHA" means the Oregon Health Authority.

(74) "Owner" means an individual with an ownership interest.

(75) "Ownership Interest" means the possession of equity in the capital, the stock, or the profits of an entity.

(76) "Person-Centered Service Plan" means the details of the supports, desired outcomes, activities, and resources required for an individual to achieve and maintain personal goals, health, and safety, as described in OAR 411-004-0030.

(a) FOR INDIVIDUALS RECEIVING MEDICAID. The person-centered service plan coordinator completes the person-centered service plan.

(b) FOR NON-MEDICAID INDIVIDUALS. The person-centered service plan may be completed by the resident, and as applicable, the representative of the individual, and others as chosen by the individual. The licensee may assist non-Medicaid individuals in developing person-centered service plans when no alternative resources are available. The elements of the individual's person-centered service plan may be incorporated into the resident's care plan.

(77) "Person-Centered Service Plan Coordinator" means a:

(a) Resident's AAA or APD case manager assigned to provide case management services or person-centered service planning for and with individuals; or

(b) Person of the individual's choice for individuals who pay privately.

(78) "Personal Incidental Funds (PIF)" means the monthly amount allowed each Medicaid resident for personal incidental needs. For purposes of this definition, personal incidental funds include monthly payments, as allowed, and previously accumulated resident savings.

(79) “Preferred Language” means the chosen language of for the resident. Preferred language must be legally recognized language.

(80) “Preliminary Finding” means an objective finding based on the available evidence at the time that the Department conducts an initial investigation of a complaint.

(81) "Pre-Service Training" means training that must be completed before direct care staff provide care to residents.

(82) "Primary Care Provider" means the health care provider primarily responsible for the on-going diagnosis and treatment of the resident where they currently reside.

(83) "Privacy" means a specific area or time over which the resident maintains a large degree of control. Privacy is supported with services that are delivered with respect for the resident's civil rights.

(84) "Provider" means any person or entity providing HCBS.

(85) "P.R.N." means those medications and treatments that have been ordered by a qualified practitioner to be administered as needed.

(86) "Psychotropic Medications" means any drug that affects brain activities associated with mental processes and behavior. These drugs include, but are not limited to, drugs in the following categories:

(a) Anti-psychotic.

(b) Anti-depressant.

(d) Hypnotic.

(87) “Qualified facility staff,” for purposes of OAR 411-054-0080, means the facility nurse, administrator, or administrator’s designee.

(88) "Quality Measurement Program" means the quality metrics program, as described in OAR 411-054-0320.

(89) "Quality Measurement Council" means a group of individuals appointed by the Governor to develop and oversee the Quality Metric Reporting Program as described in OAR 411-054-0320.

(90) "Remodel" means a renovation or conversion of a building that requires a building permit and meets the criteria for review by the Facilities Planning and Safety Program as described in OAR chapter 333 division 675.

(91) "Renovate" means to restore to good condition or to repair.

(92) "Residency Agreement" means the written, legally enforceable agreement between a facility and an individual, or legal representative receiving services in a residential setting. This agreement is one of the documents that must be provided to potential residents before move-in.

(93) "Resident" means any individual who is receiving room, board, care, and services on a 24-hour basis in a residential care or assisted living facility for compensation.

(94) "Resident Evaluation" means an evaluation that uses the information obtained when addressing the elements required in OAR 411-054-0034(5).

(95) "Residential Care Facility (RCF)" means a building, complex, or distinct part thereof, consisting of shared or individual living units in a homelike surrounding, where six or more seniors and adult individuals with disabilities may reside. The residential care facility offers and coordinates a range of supportive services available on a 24-hour basis to meet the activities of daily living, health, and social needs of the residents as described in these rules. A program approach is used to promote resident self-direction and participation in decisions that emphasize choice, dignity, individuality, and independence.

(96) "Residential Care Facility Administrator (RCFA)" means an administrator of a residential care or assisted living facility, as defined in ORS 678.710 and licensed by the Oregon Health Licensing Office, according to OAR chapter 853. All individuals serving as administrators in residential care or assisted living facilities will be required to hold this license as of January 1, 2022.

(97) "Restraint" means:

(a) Physical restraints are any manual method, or physical or mechanical device, material, or equipment attached to or adjacent to the individual’s body that the individual cannot remove easily, which restricts freedom of movement or normal access of the individual to the individual’s body. Any manual method includes physically restraining someone by manually holding someone in place.

(98) "Retaliation" means to threaten, intimidate, or take an action that is detrimental to an individual (for example, harassment, abuse, or coercion).

(99) "Risk Agreement" means a process where a resident's high-risk behavior or choices are reviewed with the resident. Alternatives to and consequences of the behavior or choices are explained to the resident and the resident's decision to modify behavior or accept the consequences is documented.

(100) "Service Plan" means a written, individualized plan for services, developed by a service planning team and the resident or the resident's legal representative, that reflects the resident's capabilities, choices, and if applicable, measurable goals, and managed risk issues. The service plan defines the division of responsibility in the implementation of the services.

(101) "Service Planning Team" means two or more individuals, as set forth in OAR 411-054-0036, that assist the resident in determining what services and care are needed, preferred, and may be provided to the resident. For IICs, the term "interdisciplinary team" is synonymous with "service planning team."

(102) "Services" mean supervision or assistance provided in support of a resident's needs, preferences, and comfort, including health care and activities of daily living, that help develop, increase, maintain, or maximize the resident's level of independent, psychosocial, and physical functioning.

(103) “Sexual orientation” means romantic or sexual attraction, or a lack of romantic or sexual attraction, to other people.

(104) “Staffing Assessment” means a review conducted by the Department to determine if a facility is using an acuity-based staffing tool according to administrative rule.

(105) “Staffing Levels” means the number of staff required to provide the levels, intensity and qualifications of staff necessary to meet the scheduled and unscheduled needs of each resident 24 hours a day, seven days a week. Staffing levels are established by using an acuity-based staffing tool to determine the amount of time and expertise necessary to provide services to assist with activities of daily living and related tasks.

(106) “Staffing Plan” means a plan outlining the staffing levels required to meet the scheduled and unscheduled needs of all residents within a facility. Staffing plans should incorporate and be consistent with the facility’s acuity-based staffing tool data.

(107) "Subject Individual" means any individual 16 years of age or older on whom the Department may conduct a background check as defined in OAR 407-007-0210 and from whom the Department may require fingerprints for the purpose of conducting a national background check.

(a) For the purpose of these rules, subject individual includes:

(A) All applicants, licensees, and operators of a residential care or assisted living facility.

(B) All individuals employed or receiving training in an assisted living or residential care facility.

(b) For the purpose of these rules, subject individual does not apply to:

(A) Residents and visitors of residents.

(B) Individuals that provide services to residents who are employed by a private business not regulated by the Department.

(108) "Substantial Compliance" means a level of compliance with state law and rules of the Department such that any identified deficiencies pose a risk of no more than negligible harm to the health or safety of residents of a facility.

(109) “Substantiated” means sufficient evidence was found during a complaint investigation to conclude that a rule violation occurred. For the definition of substantiated for the purpose of abuse findings refer to OAR 411-020-0002.

(110) "Supportive Device" means a device that may have restraining qualities that supports and improves a resident's physical functioning.

(111) "These Rules" mean the rules in OAR chapter 411, division 054.

(112) “Transgender” means having a gender identity or gender expression that differs from the sex one was assigned at birth, regardless of whether one has undergone or is in the process of undergoing gender-affirming care. Being transgender does not imply any specific sexual orientation. Therefore, transgender people may identify as straight, gay, lesbian, bisexual, etc.

(113) "Underserved" means services are significantly unavailable within the service area in a comparable setting for:

(a) The general public.

(b) A specific population, for example, residents with dementia or traumatic brain injury.

(114) "Unit" means the personal and sleeping space of an individual receiving services in an RCF or ALF setting, as agreed to in the Residency Agreement.

(115) "Universal Worker" means a facility employee whose assignments include other tasks (for example, housekeeping, laundry, or food service) in addition to providing direct resident services. Universal worker does not include administrators, clerical or administrative staff, building maintenance staff, or licensed nurses who provide services as specified in OAR 411-054-0034.

(116) “Unsubstantiated” means sufficient evidence was not found during a complaint investigation to conclude that a rule violation occurred. For the definition of unsubstantiated for the purpose of abuse findings refer to OAR 411-020-0002.

(117) “Voluntary Move-Out” means the facility and the resident, or resident’s legal representative, have mutually agreed the facility can no longer meet the resident’s health, behavior or care needs.

History

Statutory/Other Authority: ORS 410.070, 441.122, 443.450 & 443.738
Statutes/Other Implemented: ORS 441.111, 443.400 - 443.455, 443.738, 443.991 & 678.710
APD 21-2026, temporary amend filed 08/03/2026, effective 08/10/2026 through 02/05/2027
APD 69-2024, amend filed 12/20/2024, effective 12/24/2024
APD 33-2024, temporary amend filed 06/24/2024, effective 07/01/2024 through 12/27/2024
APD 27-2022, amend filed 06/15/2022, effective 06/24/2022
APD 58-2021, temporary amend filed 12/23/2021, effective 01/01/2022 through 06/29/2022
APD 7-2021, amend filed 02/05/2021, effective 02/08/2021
APD 23-2020, amend filed 06/20/2020, effective 06/24/2020
APD 54-2019, temporary amend filed 12/23/2019, effective 01/01/2020 through 06/28/2020
APD 30-2019, amend filed 08/19/2019, effective 09/01/2019
APD 19-2018, amend filed 06/29/2018, effective 06/29/2018
APD 35-2017, temporary amend filed 12/30/2017, effective 01/01/2018 through 06/29/2018
APD 30-2017, amend filed 12/01/2017, effective 12/15/2017
APD 17-2017(Temp), f. & cert. ef. 8-1-17 thru 1-27-18
APD 10-2016, f. 6-27-16, cert. ef. 6-28-16
APD 26-2015(Temp), f. 12-29-15, cert. ef. 1-1-16 thru 6-28-16
APD 1-2015, f. 1-14-15, cert. ef. 1-15-15
SPD 11-2012, f. 8-31-12, cert. ef. 9-1-12
SPD 4-2012, f. 4-30-12, cert. ef. 5-1-12
SPD 23-2011(Temp), f. & cert. ef. 11-10-11 thru 5-7-12
SPD 7-2011, f. 3-31-11, cert. ef. 4-1-11
SPD 24-2010(Temp), f. & cert. ef. 10-5-10 thru 4-2-11
SPD 10-2010, f. 6-30-10, cert. ef. 7-1-10
SPD 23-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10
SPD 13-2009, f. 9-30-09, cert. ef. 10-1-09
SPD 16-2008, f. 12-31-08, cert. ef. 1-1-09
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0010 Licensing Standard

(1) No individual, entity, or governmental unit acting individually or jointly with any other individual, entity, or governmental unit may establish, maintain, conduct, or operate a residential care or assisted living facility, use the term residential care or assisted living facility, or hold itself out as being a residential care or assisted living facility or as providing residential care or assisted living services, without being duly licensed as such.

(2) Each license to operate a residential care or assisted living facility shall expire two years following the date of issuance unless revoked, suspended, terminated earlier, or issued for a shorter specified period.

(3) Each residential care and assisted living facility must be licensed, maintained, and operated as a separate and distinct facility.

(4) A license may not be required for a building, complex, or distinct part thereof, where six or more individuals reside where activities of daily living assistance and health services are not offered or provided by the facility.

(a) Facility representatives and written materials may not purport that such care and services are offered or provided by the facility.

(b) Prospective and actual tenants must have no expectations that such care and services are offered or shall be provided by the facility.

(c) The Department's Director shall determine whether a residential care or assisted living facility license is required in cases where the definition of a facility's operations is in dispute.

(5) NOT TRANSFERABLE. No residential care or assisted living facility license is transferable or applicable to any location, facility, management agent, or ownership other than that indicated on the application and license.

(6) SEPARATE BUILDINGS. Separate licenses are not required for separate buildings of the same license type located contiguously and operated as an integrated unit by the same licensee. Distinct staffing plans are required for each building.

(7) IDENTIFICATION. Every facility must have distinct identification or name and must notify the Department of any intention to change such identification.

(8) DESCRIPTIVE TITLE. A residential care or assisted living facility licensed by the Department may neither assume a descriptive title nor be held under any descriptive title other than what is permitted within the scope of its license.

(9) RESIDENT DISPLACEMENT DUE TO REMODELING. The licensee must notify the Department 90 days prior to a remodel or renovation of part of a facility if there shall be a disruption to residents in the facility (for example: residents must be temporarily moved to another room overnight). During a non-emergent remodel, if any residents need to be moved from their rooms, the residents must continue to be housed in another area of the facility and may not be moved to another care setting.

(a) NON-EMERGENT REMODEL.

(A) For a non-emergent remodel, the licensee must submit a written proposal for remodeling or renovation to the Department. The proposal must include:

(i) A specific plan as to where residents shall be housed within the existing facility. For those providers who have several buildings on the same campus, a move to a different building of the same license type within the campus setting is allowed, as long as the resident agrees to the move;

(ii) A specific plan outlining the extended details of the renovation or remodeling; and

(iii) A timeline for completion of the project. If the project is expected to take longer than three months, the licensee must provide a monthly update to the Department. The maximum time allowed for a renovation or remodel is one year from the date of the Department's approval. The Department may approve renovations that exceed one year.

(B) The licensee must give the residents written notice 60 days prior to beginning any non-emergent remodel that shall displace the residents. The notice must include:

(i) Where the residents shall be moved;

(ii) The approximate length of time of the remodel; and

(iii) Assurance that the residents shall be able to return to their own rooms when the remodel is completed, if the residents choose to do so.

(C) The licensee must submit an outline of the work to be completed, construction documents, and any necessary drawings if required by the scope of work, to the Facilities Planning and Safety Program (FPS). FPS has 15 business days for review.

(D) The licensee must comply with the rules in OAR chapter 333, division 675 (Project Plans and Construction Review) and all other structural requirements when remodeling.

(E) Nothing in this rule is intended to preclude the Department from taking other regulatory action on a violation of the licensing requirements in these rules during the time of remodeling or renovation.

(b) EMERGENT REMODEL OR CLOSURE.

(A) When an emergency or disaster requires all residents of a facility or part of a facility to be immediately evacuated while remodeling occurs, the licensee must:

(i) Provide the Department written details regarding the transfer of residents within two working days of the emergency or disaster;

(ii) Submit a plan regarding the details for remodel or if necessary, a plan for permanent closure, to the Department within two weeks;

(iii) Contact FPS to determine if drawings need to be submitted based on the scope of the remodel; and

(iv) Assure that any residents who were transferred out of the facility shall be moved back to the facility when compliance with all building requirements of these rules is met.

(B) All residents who have been transferred out of the facility must be notified in writing, at the last address known to the facility, as to when the residents shall be able to return to the facility.

(C) The facility must ensure the safe transfer of residents from and back to the facility and bear all costs of the moves.

(D) A refusal by a facility to allow a resident to return after the resident has been transferred out of the facility due to an emergent closure shall be regarded as an involuntary move out:

(i) For an involuntary move out, the facility must comply with the requirements of OAR 411-054-0080; and

(ii) The resident shall have all rights provided in OAR 411-054-0080.

(E) In the event of an emergent closure, the Department may renew the existing license for a period not to exceed two years from the renewal date.

(10) PERMANENT FACILITY CLOSURE. A facility is considered closed if the licensee is no longer providing services and the residents have moved out or must be moved from the facility.

(a) The licensee must submit a written proposal for approval to the Department 60 days prior to permanent closure. The proposal must specify the plan for safe transfer of all residents.

(b) The licensee must notify the residents at least 60 days prior to facility closure.

(11) NOTICE OF BANKRUPTCY OR FORECLOSURE. The licensee must notify the Department in writing within 10 days after receipt of any notice of foreclosure or trustee notification of sale with respect to a real estate contract, trust deed, mortgage, or other security interest affecting the property of the licensee, as defined in OAR 411-054-0005. The written notice to the Department must include a copy of the notice provided to the licensee.

(a) The licensee must update the Department in writing not less often than every 90 days thereafter until the matter is resolved and the default has been resolved and no additional defaults have been declared or actions threatened. The update must include:

(A) The latest status on what action has been or is about to be taken by the licensee with respect to the notice received;

(B) What action is being demanded or threatened by the holder of the security interest; and

(b) The licensee must update the Department upon final resolution of the matters leading up to or encompassed by the notice of foreclosure or trustee notification of sale.

(A) The filing of any litigation regarding such security interest, including the filing of a bankruptcy petition by or against the licensee or an entity owning any property occupied or used by the licensee;

(B) The entry of any judgment with respect to such litigation; or

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
SPD 11-2012, f. 8-31-12, cert. ef. 9-1-12
SPD 13-2009, f. 9-30-09, cert. ef. 10-1-09
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0012 Requirements for New Construction or Initial Licensure

(1) An applicant requesting approval of a potential license for new construction or licensing of an existing building that is not operating as a licensed facility, must communicate with the Department before submitting a letter of intent as described in section (3) of this rule.

(2) Before beginning new construction of a building, or purchase of an existing building with intent to request a license, the applicant must provide the following information for consideration by the Department for a potential license:

(a) Demonstrate a past history, if any, of substantial compliance with all applicable state and local laws, rules, codes, ordinances, and permit requirements in Oregon, and the ability to deliver quality services to citizens of Oregon; and

(b) Provide a letter of intent as set forth in section (3) of this rule.

(3) LETTER OF INTENT. Before applying for a building permit, a prospective applicant, with intent to build or operate a facility, must submit to the Department a letter of intent that includes the following:

(a) Identification of the potential applicant.

(b) Identification of the city and street address of the intended facility.

(c) Intended facility type (for example, RCF, ALF, IIC, or memory care), the intended number of units, and maximum resident capacity.

(d) Statement of whether the applicant is able to provide care and services for an underserved population and a description of any underserved population the applicant is able to serve.

(e) Indication of whether the applicant is able to provide services through the state medical assistance program.

(f) Identification of operations within Oregon or within other states that provide a history of the applicant's ability to serve the intended population.

(g) An independent market analysis completed by a third-party professional that meets the requirements of section (4) of this rule.

(4) Conversion Facility Letter of Intent. If a nursing facility licensee has elected to convert the license to a residential care facility through the conversion facility process, the licensee must submit a conversion facility "Letter of Intent" to the Department at least 90 days prior to the planned closure of the nursing facility. This letter must outline the:

(a) Effective date of the proposed conversion; and

(b) Licensee’s intent to follow OAR 411-085-0025(2) regarding nursing facility closure requirements.

(5) MARKET ANALYSIS. The applicant must submit a current market analysis to the Department before applying for a building permit. A market analysis is not required for CFs or change of owner applicants of existing licensed buildings. The market analysis must include:

(a) A description of the intended population to be served, including underserved populations and those eligible to receive services through the state medical assistance program, as applicable.

(b) A current demographic overview of the area to be served.

(d) Identification of the number of individuals in the area to be served who are potential residents.

(e) A description of available amenities (for example, transportation, hospital, shopping center, or traffic conditions).

(f) A description of the extent, types, and availability of existing and proposed facilities, as described in ORS 443.400 to 443.455, located in the area to be served.

(g) The rate of occupancy, including waiting lists, for existing and recently completed developments competing for the same market segment.

(6) The Department shall issue a written decision of a potential license within 60 days of receiving all required information from the applicant.

(a) If the applicant is dissatisfied with the decision of the Department, the applicant may request a contested case hearing in writing within 14 calendar days from the date of the decision.

(b) The contested case hearing shall be in accordance with ORS chapter 183.

(7) Before issuing a license, the Department shall consider the applicant's stated intentions and compliance with the requirements of this rule and all structural and other licensing requirements as stated in these rules.

(8) BUILDING DRAWINGS. After the letter of intent has been submitted to the Department, one set of building drawings and specifications must be submitted to FPS and must comply with OAR chapter 333, division 675.

(a) Building drawings must be submitted to FPS:

(A) Before beginning construction of any new building;

(B) Before beginning construction of any addition to an existing building;

(C) Before beginning any remodeling, modification, or conversion of an existing building that requires a building permit; or

(D) After application for an initial license of a facility not previously licensed under this rule.

(b) Drawings must comply with the building codes and the Oregon Fire Code (OFC) as required for the occupancy classification and construction type.

(c) Drawings submitted for a licensed assisted living or residential facility must be prepared by and bear the stamp of an Oregon licensed architect or engineer.

(9) 60 DAYS BEFORE LICENSURE OR OPENING A CONVERSION FACILITY. At least 60 days before anticipated licensure, the applicant must submit to the Department:

(a) A completed application form with the required fee.

(b) A copy of the facility's written rental agreements.

(d) Facility policies and procedures to ensure the facility's administrative staff, personnel, and resident care operations are conducted in compliance with these rules.

(10) 30 DAYS BEFORE LICENSURE. 30 days before anticipated licensure the applicant must submit:

(a) To the Department, one of the following pieces of documentation concerning the individual designated as facility administrator:

(A) Verification of a valid Residential Care Facility Administrator (RCFA) license issued by the Oregon Health Licensing Office, pursuant to OAR chapter 853.

(B) Verification of a provisional Residential Care Facility Administrator license issued by the Oregon Health Licensing Office and valid until December 31, 2021. As of January 1, 2022, the individual must have successfully obtained the RCFA license defined in paragraph (A).

(C) A completed and signed Administrator Reference Sheet that reflects the qualifications and training of the individual designated as facility administrator and a background check request. This documentation will be valid until December 31, 2021. As of January 1, 2022, the individual must have successfully obtained the RCFA license defined in paragraph (A).

(b) To FPS, a completed and signed Project Substantial Completion Notice that attests substantial completion of the building project and requests the scheduling of an onsite licensing inspection.

(11) TWO-DAYS BEFORE LICENSURE. At least two working days before the scheduled onsite licensing inspection of the facility, the applicant must submit, to the Department and FPS, a completed and signed Project Completion/Inspection Checklist that confirms the building project is complete and fully in compliance with these rules.

(a) The scheduled, onsite licensing inspection may not be conducted until the Project Completion/Inspection Checklist has been received by both FPS and the Department.

(b) The onsite licensing inspection may be rescheduled at the Department's convenience if the scheduled, onsite licensing inspection reveals the building is not in compliance with these rules as attested to on the Project Completion/Inspection Checklist.

(12) CERTIFICATE OF OCCUPANCY. The applicant must submit to the Department and FPS, a copy of the Certificate of Occupancy issued by the building codes agency having jurisdiction that indicates the intended occupancy classification and construction type.

(13) CONFIRMATION OF LICENSURE. The applicant, before admitting any resident into the facility, must receive a written confirmation of licensure issued by the Department.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
APD 23-2020, amend filed 06/20/2020, effective 06/24/2020
APD 54-2019, temporary amend filed 12/23/2019, effective 01/01/2020 through 06/28/2020
APD 34-2018, minor correction filed 08/31/2018, effective 08/31/2018
APD 19-2018, amend filed 06/29/2018, effective 06/29/2018
APD 35-2017, temporary amend filed 12/30/2017, effective 01/01/2018 through 06/29/2018
APD 10-2016, f. 6-27-16, cert. ef. 6-28-16
APD 26-2015(Temp), f. 12-29-15, cert. ef. 1-1-16 thru 6-28-16
APD 1-2015, f. 1-14-15, cert. ef. 1-15-15
SPD 11-2012, f. 8-31-12, cert. ef. 9-1-12
SPD 7-2011, f. 3-31-11, cert. ef. 4-1-11
SPD 24-2010(Temp), f. & cert. ef. 10-5-10 thru 4-2-11
SPD 16-2008, f. 12-31-08, cert. ef. 1-1-09
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0013 Temporary rule language in effect until 02/05/2027. Application for Initial Licensure and License Renewal

(1) APPLICATION. Applicants for initial licensure and license renewal must complete the Department’s application form. A licensing fee, as described in ORS 443.415, must be submitted to the Department.

(a) The application form must be signed by the applicant's legally authorized representative, dated, and contain all information requested by the Department.

(b) A licensing fee must be submitted to the Department. The initial licensing fee for a new building or recently purchased building is paid according to number of beds, as required by ORS 443.415:

(A) For 1 to 15 beds: application fee shall be $2,000 and the biennial renewal fee shall be $1,000.

(B) For 16 to 49 beds: application fee shall be $3,000 and the biennial renewal fee shall be $1,500.

(D) For 100 to 150 beds: application fee shall be $5,000 and the biennial renewal fee shall be $2,500.

(E) For 151 or more beds: application fee shall be $6,000 and the biennial renewal fee shall be $3,000.

(c) Applicants must provide all information and documentation as required by the Department including but not limited to identification of financial interest of any individual, including stockholders who have an incident of ownership in the applicant representing an interest of 10 percent or more. For purposes of rule, an individual with a 10 percent or more incident of ownership is presumed to have an effect on the operation of the facility with respect to factors affecting the care or training provided, unless the individual establishes the individual has no involvement in the operation of the facility. For those who serve the Medicaid population, the applicant must identify any individual with 5 percent or more incident of ownership, regardless of the individual's effect on the operation of the facility.

(d) If the owner of the facility is a different entity from the operator or management company of the facility, both the operator and the owner must complete an application for licensure. Only one license fee is required.

(e) The application shall require the identification of any individual with a 10 percent or more incident of ownership that has ever been convicted of a crime associated with the operation of a long-term, community-based, or health care facility or agency under federal law or the laws of any state. For those who serve the Medicaid population, any individual with a 5 percent or more incident of ownership must be identified, regardless of the individual's effect on the operation of the facility.

(f) The application shall require the identification of all states where the applicant, or individual having a 10 percent or more incident of ownership in the applicant, currently or previously has been licensed as owner or operator of a long-term, community-based, or health care facility or agency under the laws of any state including any facility, currently or previously owned or operated, that had its license denied or revoked or received notice of the same under the laws of any state. For those who serve the Medicaid population, all states where the applicant or any individual having a 5 percent or more incident of ownership must be identified, regardless of the individual's effect on the operation of the facility.

(g) The Department may deny, revoke, or refuse to renew the license if the applicant fails to provide complete and accurate information on the application and the Department concludes that the missing or corrected information is needed to determine if a license shall be granted.

(h) Each application for a new license must include a completed background check request form for the applicant and for each individual with 10 percent or more incident of ownership in the applicant. For those who serve the Medicaid population, a background check request form is required for the applicant and for each individual with a 5 percent or more incident of ownership, regardless of the individual's effect on the operation of the facility.

(i) The Department may require financial information as stated in OAR 411-054-0016 (New Applicant Qualifications), when considering an applicant's request for renewal of a license.

(j) Applicants must identify the Department-approved acuity-based staffing tool the facility will implement and use as outlined in OAR 411-054-0037.

(k) Applicants must provide other information and documentation as the Department may reasonably require for the proper administration of these rules, including but not limited to information about incident of ownership and involvement in the operation of the facility or other business enterprises, as relevant.

(l) For facilities that serve the Medicaid population and are managed by a Board of Directors, the Centers for Medicare and Medicaid Services (CMS) require a social security number and date of birth for each board member.

(m) Applicants must provide the facility’s required documentation as outlined in OAR 411-054-0012(9) and OAR 411-054-0025(8) for Department review and approval.

(2) The Department shall conduct an inspection of the facility no less than 90 days and no more than 120 days after an initial license is issued.

(3) LICENSE RENEWAL. Application for a license renewal must be made at least 45 days prior to the expiration date of the existing license.

(a) The Department will renew a license when:

(A) The facility is in substantial compliance with all applicable laws and regulations,

(B) The facility is in substantial compliance with kitchen inspections as required in paragraph (5) of this rule, and

(b) The Department may not deny, delay, or refuse to renew a license:

(A) For a facility’s first failure to pass a kitchen inspection; or

(B) If the Department fails to conduct a kitchen inspection in a timely manner.

(c) An applicant for license renewal must provide the Department with a completed background check request form for the applicant and for each individual with incident of ownership of 10 percent or more in the applicant when required by the Department. For those who serve the Medicaid population, a background check request form is required for the applicant and each individual with a 5 percent or more incident of ownership, regardless of the individual's effect on the operation of the facility.

(d) A building inspection may be requested at the Department's discretion. The Department may require physical improvements if the health or safety of residents is negatively impacted.

(e) Upon receipt of a licensing renewal application and fee, the Department shall conduct an inspection.

(f) Filing an application for renewal and submitting the required non-refundable licensing fee before the date of expiration extends the expiration date of the license until the Department acts upon such application. Failure to submit an application for renewal and licensing fee will result in the license not being renewed.

(g) The license will be renewed once an application and all corresponding documents have been submitted, the renewal fee has been paid, the required inspections have been completed, and the licensee is operating in substantial compliance.

(4) DEMONSTRATED CAPABILITY.

(a) Prior to issuance of a license or a license renewal, the applicant must demonstrate to the satisfaction of the Department that the applicant can provide services in a manner consistent with the requirements of these rules.

(b) The Department may consider the background and qualifications of any individual with a 10 percent or more incident of ownership in the applicant when determining whether an applicant may be licensed. For those who serve the Medicaid population, the background and qualifications of any individual with a 5 percent or more incident of ownership, regardless of the individual's effect on the operation of the facility, may be considered.

(c) The Department may consider the applicant's history of compliance with Department rules and orders including the history of compliance of any individual with a 10 percent or more incident of ownership in the applicant. For those who serve the Medicaid population, the history of compliance of the applicant and any individual with a 5 percent or more incident of ownership, regardless of the individual's effect on the operation of the facility, may be considered.

(5) KITCHEN INSPECTION. The Department shall annually conduct an in-person inspection of each facility’s kitchen and other places where food is prepared.

(a) During a year in which the facility is surveyed, the kitchen inspection shall be completed as part of the standard survey.

(b) During a year in which a facility is not surveyed, the kitchen inspection shall require a separate visit and inspection by the Department. The fee for this separate kitchen inspection is $200.

History

Statutory/Other Authority: ORS 410.070, 443.417 & 443.450
Statutes/Other Implemented: ORS 443.400-443.455 & 443.991
APD 21-2026, temporary amend filed 08/03/2026, effective 08/10/2026 through 02/05/2027
APD 69-2024, amend filed 12/20/2024, effective 12/24/2024
APD 29-2024, temporary amend filed 06/21/2024, effective 07/01/2024 through 12/27/2024
APD 55-2021, amend filed 12/09/2021, effective 12/15/2021
APD 20-2021, amend filed 06/08/2021, effective 06/09/2021
APD 51-2020, temporary amend filed 12/18/2020, effective 01/01/2021 through 06/29/2021
APD 19-2018, amend filed 06/29/2018, effective 06/29/2018
APD 35-2017, temporary amend filed 12/30/2017, effective 01/01/2018 through 06/29/2018
SPD 11-2012, f. 8-31-12, cert. ef. 9-1-12
SPD 4-2012, f. 4-30-12, cert. ef. 5-1-12
SPD 23-2011(Temp), f. & cert. ef. 11-10-11 thru 5-7-12
SPD 10-2010, f. 6-30-10, cert. ef. 7-1-10
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0016 Temporary rule language in effect until 02/05/2027. New Applicant Qualifications

For the purpose of this rule, "applicant" means each entity, as defined in OAR 411-054-0005, who holds 10 percent or more incident of ownership in the applicant as described in OAR 411-054-0013(1)(b). For those who serve the Medicaid population, "applicant" means each entity, as defined in OAR 411-054-0005, who holds 5 percent or more incident of ownership regardless of the individual's effect on the operation of the facility. Applicants for licensure (excluding license renewal, but including all conversion facilities, changes of ownership, management, or operator) must meet the following criteria:

(1) BACKGROUND CHECK. Each applicant may not have convictions of any of the crimes listed in OAR 407-007-0275 and must complete a background check conducted by the Department in accordance with OAR 407-007-0200 to 407-007-0370.

(2) PERFORMANCE HISTORY. The Department shall consider an applicant's performance history, including repeat sanctions or rule violations, before issuing a license.

(a) Each applicant must be free of incident of ownership history in any facility in Oregon that provides or provided (at the time of ownership) care to children, elderly, ill, or individuals with disabilities that had its license or certification involuntarily suspended or voluntarily terminated during any state or federal sanction process during the past five years.

(b) Applicants must be free of incident of ownership history in any facility in any state that had its license or certification involuntarily suspended or voluntarily terminated during any state or federal sanction process during the past five years.

(c) Failure to provide accurate information or demonstrate required performance history may result in the Department's denial of a license.

(3) FINANCIAL HISTORY. Each applicant must:

(a) Be free of incident of ownership history in any facility or business that failed to reimburse any state for Medicaid overpayments or civil penalties during the past five years.

(b) Be free of incident of ownership history in any facility or business that failed to compensate employees or pay worker's compensation, food supplies, utilities, or other costs necessary for facility operation during the past five years.

(c) Submit proof of fiscal responsibility, including an auditor's certified financial statement, and other verifiable documentary evidence of fiscal solvency documenting that the prospective licensee has sufficient resources to operate the facility for 60 days. Proof of fiscal responsibility must include liquid assets sufficient to operate the facility for 45 days. Anticipated Medicaid income is not considered "liquid assets," but may be considered "financial resources." Liquid assets may be demonstrated by:

(A) An unencumbered line of credit;

(B) A performance bond; or

(d) Provide a pro forma (revenues, expenditures, and resident days) by month for the first 12 months of operation of the facility and demonstrate the ability to cover any cash flow problems identified by the pro forma.

(4) EXPERIENCE. If an applicant does not have experience operating or managing an assisted living or residential care facility in Oregon, the applicant must retain the services of a Department-approved consultant or management entity with experience operating or managing an assisted living or residential care facility in Oregon.

(a) The applicant must contract with a consultant or management entity at least one month before the facility is licensed. The applicant must retain the consultant or management entity for a period of at least six months from the date the initial license is issued.

(b) Prior to ending the consultant or management entity services, the licensee must notify the Department, in writing, of the request to end the services. The request to terminate must be submitted at least two business days before terminating services.

(A) The Department will review the request and provide a decision in writing concerning termination of the consultant or management entity services within five business days of receiving the request. Consultant or management entity services shall continue until a decision is made by the Department. The consultant or management entity, and the terms and length of engagement, are subject to the approval of the Department.

(B) The Department may require the licensee to extend the duration of the period of consultation beyond six months if the Department determines, from an on-site inspection, from a review of the required monthly reports, or both, that the facility is not in substantial compliance with applicable state or federal laws, rules or regulations.

(c) The facility is responsible for implementing recommendations from the consultant or management entity or taking any other appropriate alternative steps to achieve substantial compliance with applicable state or federal laws, rules or regulations.

(d) If the applicant is applying for a license to operate an assisted living facility or a residential care facility with a memory care endorsement under ORS 443.886, the applicant must contract with a consultant or management entity that has experience operating or managing an assisted living facility or a residential care facility with a memory care endorsement under ORS 443.886.

(e) Conversion Facilities: Subsections (a), (b), and (c) above also apply to Conversion Facilities.

(f) Intensive Intervention Communities: Subsections (a), (b), and (c) above also apply to Intensive Intervention Communities. In addition, Intensive Intervention Community applicants must have history of an unencumbered license from the Department or have operated a specialized living contract with the Department.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
APD 21-2026, temporary amend filed 08/03/2026, effective 08/10/2026 through 02/05/2027
APD 19-2018, amend filed 06/29/2018, effective 06/29/2018
APD 35-2017, temporary amend filed 12/30/2017, effective 01/01/2018 through 06/29/2018
SPD 11-2012, f. 8-31-12, cert. ef. 9-1-12
SPD 4-2012, f. 4-30-12, cert. ef. 5-1-12
SPD 23-2011(Temp), f. & cert. ef. 11-10-11 thru 5-7-12
SPD 10-2010, f. 6-30-10, cert. ef. 7-1-10
SPD 23-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0017 Temporary rule language in effect until 02/05/2027. Consultants

(1) As required by OAR 411-054-0016(4), the applicant must retain a consultant or management entity that meets the following minimum qualifications:

(a) Holds, or employs a person who holds, an active residential care facility administrator license issued under ORS 678.710 to 678.820 that is in good standing.

(b) Within the last five years, has at least three years of demonstrated experience operating or managing an assisted living facility or a residential care facility in Oregon in a satisfactory manner.

(c) Within the last five years, has at least three years of demonstrated experience operating or managing an assisted living or residential care facility with a memory care endorsement under ORS 443.886 in Oregon in a satisfactory manner. This is required if the consultant or management entity is consulting with an applicant applying for a license to operate an assisted living or residential care facility with a memory care endorsement under ORS 443.886.

(d) Is not listed as an excluded provider on the comprehensive listing maintained by the United States Department of Health and Human Services’ Office of Inspector General of providers that are excluded from participation in federal health care programs.

(2) The consultant or management entity must submit an application to the Department. The consultant and management entity will be required to demonstrate the minimum qualifications listed in paragraph (1) above and provide any other required materials as outlined in the application process. The Department will review these materials, and review any prior investigations, sanctions and enforcement actions initiated by the Department.

(3) The consultant or management entity must comply with the Department’s rules and perform the following tasks required by OAR 411-054-0016(4) including but not limited to:

(a) Review of the facility’s policies, procedures and quality improvement program.

(b) Conduct audits at least monthly as well as conduct periodic on-site compliance audits, which must include a review of facility systems.(c) Submit monthly reports to the Department and the licensee after the facility begins operation. Each of the reports must include documentation evaluating the facility systems, policies and procedures. Each report must include the facility’s actions taken to correct any deficient practices.

(4) The Department retains the right to rescind approval of a consultant or management entity as outlined in the application process.

History

Statutory/Other Authority: ORS 410.070, 443.420 & 443.450
Statutes/Other Implemented: ORS 443.400-443.455 & 443.991
APD 21-2026, temporary adopt filed 08/03/2026, effective 08/10/2026 through 02/05/2027

Or. Admin. R. 411-054-0019 Temporary rule language in effect until 02/05/2027. Change of Ownership or Management

(1) The licensee and the prospective licensee must each notify the Department in writing of a contemplated change in ownership or management entity. The written notification must be received at least 60 days prior to the proposed date of change.

(a) The prospective licensee or management entity must submit all required documents at least 60 days before the expected date of initial licensure. The following must be submitted to the Department:

(A) A completed application form.

(B) Background checks and performance history as outlined in OAR 411-054-0016.

(C) A copy of policies, procedures, residency agreements, , required disclosure statements, including the Consumer Summary Statement, and identification of the Department-approved Acuity-Based Staffing Tool the facility will implement and use as outlined in OAR 411-054-0037.

(D) A licensing fee, as described in ORS 443.415, submitted according to Department policy.

(b) The prospective licensee must notify the residents in writing 30 days in advance of a change in ownership or management entity. The notice to residents must include any changes to rates or policies.

(c) The prospective licensee or operator may not assume possession or control of the facility until the Department has notified the prospective licensee or operator that the license application has been approved.

(d) The licensee is responsible for the operation of the facility and resident services until a new license is issued to the new owner.

(2) The licensee must disclose current Department-granted exceptions to prospective licensee.

(3) A building inspection may be requested at the Department's discretion. The Department may require physical improvements if the health or safety of residents is negatively impacted.

(4) Resident records maintained by the licensee must be turned over to the new owner when the license application is approved, and the new licensee assumes possession or control of the facility.

(5) The new owner or licensee shall send a revised copy of the Consumer Summary Statement to the Department prior to a change of ownership or management. The revised copy must include new ownership or management information and any other amendments to the document. All Consumer Summary Statements are posted to the Department’s licensing webpage.

(6) If an applicant does not have experience in the operation or management of an assisted living or residential care facility in Oregon, the applicant must follow requirements outlined in OAR 411-054-0016. The applicant must contract with a consultant or management entity at least one month before the scheduled change of ownership.

(7) The Department shall conduct an inspection of the facility no less than 90 days and no more than 120 days after a change of ownership.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
APD 21-2026, temporary amend filed 08/03/2026, effective 08/10/2026 through 02/05/2027
APD 69-2024, amend filed 12/20/2024, effective 12/24/2024
APD 29-2024, temporary amend filed 06/21/2024, effective 07/01/2024 through 12/27/2024
APD 55-2021, amend filed 12/09/2021, effective 12/15/2021
SPD 11-2012, f. 8-31-12, cert. ef. 9-1-12
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0025 Temporary rule language in effect until 02/05/2027. Facility Administration

(1) FACILITY OPERATION.

(a) The licensee is responsible for the operation of the facility and the quality of services rendered in the facility.

(b) The licensee is responsible for the supervision, training, and overall conduct of staff when staff are acting within the scope of his or her employment duties.

(c) The licensee is responsible for ensuring that the facility complies with the tuberculosis screening recommendations in OAR 333-019-0041.

(d) The licensee is responsible for obtaining background checks on all subject individuals.

(2) BACKGROUND CHECK REQUIREMENTS.

(a) Background check application must be submitted to the Department for a fitness determination on all subject individuals in accordance with OAR 407-007-0200 to 407-007-0370, and 407-007-0600 to 0640, including before a subject individual's change in position.

(A) On or after July 28, 2009, no individual may be a licensee, or employed in any capacity in a facility, who has been convicted of any of the disqualifying crimes listed in OAR 407-007-0275.

(B) Subject individuals who are employees and hired before July 28, 2009, are exempt from subsection (a) of this section provided that the employee remains with the facility working for the same employer after July 28, 2009. This exemption is not applicable to licensees.

(b) PORTABILITY OF BACKGROUND CHECK APPROVAL.

(A) A new criminal records check is not required when a subject individual with a valid background check approval moves to another care setting listed in ORS 443.004(2) or (3), provided there is no new potentially disqualifying information. The facility must submit the individual’s identifying information, as required by the Background Check Unit, to verify the approval status and update employer information.

(B) If a subject individual was previously approved to work in multiple facilities under the same operational entity, and that intent was identified in the original background check request and approved by the Background Check Unit, an additional submission to the Background Check Unit is not required when moving between facilities within that operational entity.

(3) EMPLOYMENT APPLICATION. An application for employment in any capacity at a facility must include a question asking whether the applicant has been found to have committed abuse. The licensee must check all potential employees against the Oregon State Board of Nursing (Board) and inquire whether the individual is licensed or certified by the Board and whether there has been any disciplinary action by the Board against the individual or any substantiated abuse findings against a nursing assistant.

(4) Reasonable precautions must be exercised against any condition that may threaten the health, safety, or welfare of residents.

(5) REQUIRED POSTINGS. Required postings must be posted in a routinely accessible and conspicuous location to residents and visitors and must be available for inspection at all times. The licensee is responsible for posting the following:

(a) Facility license.

(b) The name of the administrator or designee in charge. The designee in charge must be posted by shift or whenever the administrator is out of the facility.

(d) A copy of the most recent re-licensure survey, including all revisits and plans of correction as applicable.

(e) The Ombudsman Notification Poster.

(f) Resident Rights and Protections, as described in OAR 411-054-0027, including the LGBTQIA2S+ Rights and Protections.

(g) The LGBTQIA2S+ Nondiscrimination Notice, as described in paragraph (7)(i) of this section, must be posted in all places and on all materials where that notice or those written materials are posted.

(h) Other notices relevant to residents or visitors required by state or federal law.

(6) NOTIFICATION. The facility must notify the Department's Central Office immediately by telephone, fax, or email, (if telephone communication is used the facility must follow-up within 72 hours by written or electronic confirmation) of the following:

(a) Any change of the administrator of record through the submission of the Administrator Reference Summary (SDS 0566).

(b) Severe interruption of physical plant services where the health or safety of residents is endangered, such as the provision of heat, light, power, water, or food.

(c) Occurrence of epidemic disease in the facility. The facility must also notify the Local Public Health Authority as applicable.

(d) Facility fire or any catastrophic event that requires residents to be evacuated from the facility.

(e) Unusual resident death or suicide.

(f) A resident who has eloped from the facility and has not been found within 24 hours.

(7) POLICIES AND PROCEDURES. The facility must develop and implement written policies and procedures that promote high quality services, health and safety for residents, and incorporate the community-based care principles of individuality, independence, dignity, privacy, choice, and a homelike environment.

(a) The facility must develop and implement the following policies and procedures:

(A) A policy on the possession of firearms and ammunition within the facility. The policy must be disclosed in writing and by one other means of communication commonly used by the resident or potential resident in his or her daily living.

(B) A written policy that prohibits sexual relations between any facility employee and a resident who did not have a pre-existing relationship.

(D) A policy on smoking. The facility may designate itself as non-smoking. The smoking policy must be in accordance with:

(i) The Oregon Indoor Clean Air Act, ORS 433.835 to 433.875;

(ii) The rules in OAR chapter 333, division 015; and

(iii) Any other applicable state and local laws.

(E) A policy for the referral of residents who may be victims of acute sexual assault to the nearest trained sexual assault examiner. The policy must include information regarding the collection of medical and forensic evidence that must be obtained within 86 hours of the incident.

(F) A policy on facility employees not receiving gifts or money from residents.

(G) LGBTQIA2S+ Nondiscrimination Notice.

(H) The LGBTQIA2S+ Nondiscrimination Notice must include the following language: “(Name of care facility) does not discriminate and does not permit discrimination, including but not limited to bullying, abuse or harassment, based on an individual’s actual or perceived sexual orientation, gender identity, gender expression or human immunodeficiency virus status, or based on an individual’s association with another individual on account of the other individual’s actual or perceived sexual orientation, gender identity, gender expression or human immunodeficiency virus status. If you believe you have experienced this kind of discrimination, you may file a complaint with the Oregon Department of Human Services at (provide current contact information).”

(b) The facility must develop and implement the policies and procedures for the following rules:

(A) Food preparation including temperatures and distribution policy as outlined in the Food Sanitation Rules.

(B) Service planning policy as outlined in OAR 411-054-0036.

(D) Facility closure policy as outlined in OAR 411-054-0010.

(E) Abuse reporting policy as outlined in OAR 411-054-0028.

(F) Change of condition and monitoring policy as outlined in OAR 411-054-0040.

(G) Resident health services policy as outlined in OAR 411-054-0045.

(H) Staffing training policy as outlined in OAR 411-054-0070.

(I) Facility safety program as outlined in OAR 411-054-0090.

(J) Emergency and disaster planning policy(s) as outlined in OAR 411-054-0093.

(K) Safe cooking appliances policy as outlined in OAR 411-054-0200.

(L) ABST Policy for accurate and consistent implementation of the ABST as outlined in OAR 411-054-0037. The policy must explain how a facility evaluates and accounts for both scheduled and unscheduled resident needs, 24 hours of the day, 7 days a week.

(M) Protocols for preventing and controlling infection, as described in OAR 411-054-0050.

(N) All additional requirements for written policies and procedures as established in OAR 411-054-0012 (Requirements for New Construction or Initial Licensure), and OAR 411-054-0085 (Refunds and Financial Management).

(O) If licensed as an assisted living or residential care facility with an endorsed memory care, the facility must follow all OAR chapter 411, division 57 policy and procedure requirements.

(8) RECORDS. The facility must ensure the preparation, completeness, accuracy, and preservation of resident records.

(a) The facility must develop and implement a written policy that prohibits the falsification of records.

(b) Unless required or allowed by state or federal law, a facility must not disclose any personally identifiable information regarding:

(A) A resident’s sexual orientation;

(B) Whether a resident is LGBTQIA2S+;

(D) A resident’s human immunodeficiency virus status.

(c) The facility must take appropriate steps to minimize the likelihood of inadvertent or accidental disclosure of information described in subsection (b) of this section to other residents, visitors or facility staff, except to the minimum extent necessary for facility staff to perform their duties. Facilities must notify residents or resident representatives if the facility inadvertently or accidentally discloses such information to unauthorized persons.

(d) Resident records must be kept for a minimum of three years after the resident is no longer in the facility.

(e) Upon closure of a facility, the licensee must provide the Department with written notification of the location of all records.

(9) QUALITY IMPROVEMENT PROGRAM. The facility must develop and conduct an ongoing quality improvement program that evaluates services, resident outcomes, and resident satisfaction.

(10) ELECTRONIC MONITORING CONSENT MODEL FORM. If a resident or their designated representative chooses to have a camera or electronic monitoring device in the resident’s room, the resident or their designated representative must complete an Electronic Monitoring Consent form. The form is maintained on the Department’s website for facilities to use. Facilities may develop and use their own forms. The signed form must be maintained in the resident’s records.

History

Statutory/Other Authority: ORS 181.534, 410.070, 441.122, 443.004, 443.012 & 443.450
Statutes/Other Implemented: ORS 181.534, 441.112, 441.114, 443.004, 443.400-443.455 & 443.991
APD 21-2026, temporary amend filed 08/03/2026, effective 08/10/2026 through 02/05/2027
APD 69-2024, amend filed 12/20/2024, effective 12/24/2024
APD 33-2024, temporary amend filed 06/24/2024, effective 07/01/2024 through 12/27/2024
APD 20-2021, amend filed 06/08/2021, effective 06/09/2021
APD 51-2020, temporary amend filed 12/18/2020, effective 01/01/2021 through 06/29/2021
APD 23-2020, amend filed 06/20/2020, effective 06/24/2020
APD 55-2019, temporary amend filed 12/23/2019, effective 01/01/2020 through 06/28/2020
APD 10-2016, f. 6-27-16, cert. ef. 6-28-16
APD 26-2015(Temp), f. 12-29-15, cert. ef. 1-1-16 thru 6-28-16
SPD 11-2012, f. 8-31-12, cert. ef. 9-1-12
SPD 10-2010, f. 6-30-10, cert. ef. 7-1-10
SPD 1-2010(Temp), f. & cert. ef. 3-11-10 thru 6-30-10
SPD 23-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10
SPD 13-2009, f. 9-30-09, cert. ef. 10-1-09
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0026 Temporary rule language in effect until 02/05/2027. Disclosure and Notification to Potential Residents

The facility must provide the following documents to potential residents before move-in:

(1) UNIFORM DISCLOSURE STATEMENT. This is a Department-designated form (form APD 9098A) to provide to each individual who requests information about the facility.

(2) RESIDENCY AGREEMENT. This is an agreement prepared by the facility. The residency agreement must be reviewed by the Department before distribution and must include the following:

(a) Terms of occupancy, including policy on the possession of firearms and ammunition.

(b) Payment provisions including the basic rental rate and what it includes, cost of additional services, billing method, payment system and due dates, deposits, and non-refundable fees, if applicable.

(d) Policy for increases, additions, or changes to the rate structure. The disclosure must address the minimum requirement of 30 days prior written notice of any facility-wide increases or changes and the requirement for immediate written notice for individual resident rate changes that occur as a result of changes in the service plan.

(e) Refund and proration conditions.

(f) A description of the scope of resident services available according to OAR 411-054-0030.

(g) A description of the service planning process.

(h) Additional available services.

(i) The philosophy of how health care and ADL services are provided to the resident.

(j) Resident rights and responsibilities.

(k) The facility's system for packaging medications including the option for residents to choose a pharmacy that meets the requirements of ORS 443.437.

(l) Criteria, actions, circumstances, or conditions that may result in a move-out notification or intra-facility move consistent with OAR 411-054-0080.

(m) Resident rights pertaining to notification of involuntary move-out.

(n) Notice that the Department has the authority to examine resident records as part of the evaluation of the facility.

(o) The facility's staffing plan.

(p) Additional elements as listed in OAR 411-054-0027(2).

(3) CONSUMER SUMMARY STATEMENT. The facility must use the Department-designated Consumer Summary Statement form (APD 9098CS). This form is separate from the residency agreement.

(a) Similar to the residency agreement, this summary statement must be provided to a potential resident before move-in. The consumer summary must include the following:

(A) A summary of the services provided by the facility.

(B) A summary of the services and types of care the facility does not provide.

(C) A statement that, if the facility is not capable of meeting the resident’s needs for care and services, the facility may require the resident to move to another facility or care setting, in accordance with OAR 411-054-0080.

(D) A statement explaining that, if a resident leaves the facility to receive acute medical, psychiatric, nursing or other specialized care, the facility will evaluate the facility’s ability to meet the resident’s care needs before the resident is permitted to return to the facility, in accordance with OAR 411-054-0080(6).

(E) An explanation of the resident’s right to appeal should the facility either require the resident to leave the facility or not permit the resident to return following treatment as described in paragraph (D). Appeal rights are explained in OAR 411-054-0080(7).

(F) A statement as to whether the facility will arrange or coordinate hospice care for a resident upon request.

(G) A summary explanation of the licensing and survey process including information about where to find licensing and survey results for the facility.

(b) The information in the summary statement outlined in subsection (a) above must:

(A) Be in writing.

(B) Be written in plain English.

(C) Be explained to the individual or the person acting on behalf of the individual in a manner the individual or representative understands.

(D) Be provided separately from all other disclosure documents, such as the Uniform Disclosure Statement (APD form 9098A), and the facility’s Residency Agreement.

(E) Be signed by the individual or the person acting on behalf of the individual, acknowledging that the individual or representative understands the content and implications of the information.

(c) The facility must submit an updated Consumer Summary Statement to the Department any time the facility has a management or ownership change. The Consumer Summary Statement must be submitted to the Department 60 days prior to the change of ownership or management.

(d) The facility must submit an updated Consumer Summary Statement to the Department any time the facility makes changes to the form.

(e) All Consumer Summary Statements will be posted on the Department’s licensing webpage.

(4) LGBTQIA2S+ PROTECTIONS. A facility shall provide a copy of the LGBTQIA2S+ Protections as described in OAR 411-054-0027(2), and the facility’s LGBTQIA2S+ Nondiscrimination Notice, as described in OAR 411-054-0025(8)(G).

(5) All disclosure information and residency agreements must be written in compliance with these rules.

(a) The facility may not include any provision in the residency agreement, summary statement or disclosure information that is in conflict with these rules and may not ask or require a resident to waive any of the resident's rights or the facility's liability for negligence.

(b) The facility must retain a copy of the original and any subsequent signed and dated residency agreements and must provide copies to the resident or to the resident's designated representative.

(c) The facility must give residents 30 days prior written notice of any additions or changes to the residency agreement. Changes to the residency agreement must be faxed, emailed, or mailed to the Department before distribution.

(6) Prior to admission, the facility must provide written notification to prospective residents of the facility’s enrollment in the Facility Enhanced Oversight and Supervision (FEOS) Program.

History

Statutory/Other Authority: ORS 410.070 & 441.122
Statutes/Other Implemented: ORS 441.112, 441.114 & 443.443
APD 21-2026, temporary amend filed 08/03/2026, effective 08/10/2026 through 02/05/2027
APD 57-2024, amend filed 09/23/2024, effective 09/25/2024
APD 28-2024, temporary amend filed 06/21/2024, effective 07/01/2024 through 12/27/2024
APD 55-2021, amend filed 12/09/2021, effective 12/15/2021
APD 23-2020, adopt filed 06/20/2020, effective 06/24/2020

Or. Admin. R. 411-054-0027 Resident Rights and Protections

(1) GENERAL RIGHTS. The facility must implement a residents' Bill of Rights. Each resident and the resident's designated representative, if appropriate, must be given a copy of the resident's rights and responsibilities before moving into the facility. The Bill of Rights must state that residents have the right:

(a) To be treated with dignity and respect.

(b) To be given informed choice and opportunity to select or refuse service and to accept responsibility for the consequences.

(d) To participate in the development of their initial service plan and any revisions or updates at the time those changes are made.

(e) To receive information about the method for evaluating their service needs and assessing costs for the services provided.

(f) To exercise individual rights that do not infringe upon the rights or safety of others.

(g) To be free from neglect, financial exploitation, verbal, mental, physical, or sexual abuse.

(h) To receive services in a manner that protects privacy and dignity.

(i) To have prompt access to review all of their records and to purchase photocopies. Photocopied records must be promptly provided, but in no case require more than two business days (excluding Saturday, Sunday, and holidays).

(j) To have medical and other records kept confidential except as otherwise provided by law.

(k) To associate and communicate privately with any individual of choice, to send and receive personal mail unopened, and to have reasonable access to the private use of a telephone.

(l) To be free from physical restraints and inappropriate use of psychoactive medications.

(m) To manage personal financial affairs unless legally restricted.

(n) To have access to, and participate in, social activities.

(o) To be encouraged and assisted to exercise rights as a citizen.

(p) To be free of any written contract or agreement language with the facility that purports to waive their rights or the facility's liability for negligence.

(q) To voice grievances and suggest changes in policies and services to either staff or outside representatives without fear of retaliation.

(r) To be free of retaliation after they have exercised their rights provided by law or rule.

(s) To have a safe and homelike environment.

(t) To be free of discrimination in regard to race, color, national origin, gender, sexual orientation, or religion.

(u) To receive proper notification if requested to move-out of the facility, and to be required to move-out only for reasons stated in OAR 411-054-0080 (Involuntary Move-out Criteria) and have the opportunity for an administrative hearing, if applicable.

(2) LGBTQIA2S+ PROTECTIONS. A facility and the staff of the facility may not take any of the following actions based in whole or in part on a resident’s actual or perceived sexual orientation, gender identity, gender expression or human immunodeficiency virus status:

(a) Deny admission to a facility, transfer or refuse to transfer a resident within a facility or to another facility or discharge or evict a resident from a facility;

(b) Deny a request by a resident to choose the resident’s roommate, when a resident is sharing a room;

(d) Prohibit a resident from using, or harass a resident who seeks to use or does use, a restroom that is available to other individuals of the same gender identity as the resident, regardless of whether the resident is making a gender transition, has taken or is taking hormones, has undergone gender affirmation surgery or presents as gender nonconforming. Harassment includes, but is not limited to, requiring a resident to show documentation of gender identity in order to gain entrance to a restroom or other area of a care facility that is available to other individuals of the same gender identity as the resident;

(e) Repeatedly and willfully refuse to use a resident’s name or pronouns after being reasonably informed of the resident’s name or pronouns;

(f) Deny a resident the right to wear or be dressed in clothing, accessories or cosmetics, or to engage in grooming practices, that are permitted to any other resident;

(j) Fail to take reasonable actions, within the care facility’s control, to prevent discrimination or harassment when the facility knows or should have known about the discrimination or harassment;

(k) Refuse or willfully fail to provide any service, care or reasonable accommodation to a resident; or

(l) Refuse or willfully fail to provide any service, care or reasonable accommodation to a potential resident applying for services or care.

(3) HCBS RIGHTS.

(a) Effective January 1, 2016 for providers initially licensed after January 1, 2016, and effective no later than June 30, 2019 for providers initially licensed before January 1, 2016 the following rights must include the freedoms authorized by 42 CFR 441.301(c)(4) & 42 CFR 441.530(a)(1):

(A) Live under a legally enforceable residency agreement.

(B) The freedom and support to access food at any time.

(D) Choose a roommate when sharing a bedroom.

(E) Furnish and decorate the resident's bedroom according to the Residency Agreement.

(F) The freedom and support to control the resident's schedule and activities.

(b) The rights described in (B) through (F) of this section must meet the requirements set forth in OAR 411-054-0038 and shall not be limited without the informed, written consent of the resident or the resident's representative, and approved by the person-centered service plan coordinator.

(4) Licensees and facility personnel may not act as a resident's guardian, conservator, trustee, or attorney-in-fact unless related by birth, marriage, or adoption to the resident, as follows, parent, child, brother, sister, grandparent, grandchild, aunt or uncle, or niece or nephew. An owner, administrator, or employee may act as a representative payee for the resident or serve in other roles as provided by law.

(5) Licensees and facility personnel may not spend resident funds without the resident's consent.

(a) If the resident is not capable of consenting, the resident's representative must give consent.

(b) If the resident has no representative and is not capable of consenting, licensees and facility personnel must follow the requirements described in OAR 411-054-0085 and may not spend resident funds for items or services that are not for the exclusive benefit of the resident.

History

Statutory/Other Authority: ORS 410.070, 441.122 & 443.450
Statutes/Other Implemented: ORS 441.112, 441.114, 443.400 - 443.455 & 443.991
APD 57-2024, amend filed 09/23/2024, effective 09/25/2024
APD 28-2024, temporary amend filed 06/21/2024, effective 07/01/2024 through 12/27/2024
APD 30-2017, amend filed 12/01/2017, effective 12/15/2017
APD 17-2017(Temp), f. & cert. ef. 8-1-17 thru 1-27-18
APD 10-2016, f. 6-27-16, cert. ef. 6-28-16
APD 26-2015(Temp), f. 12-29-15, cert. ef. 1-1-16 thru 6-28-16
SPD 11-2012, f. 8-31-12, cert. ef. 9-1-12
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0028 Reporting and Investigating Abuse and Other Actions Affecting Resident Welfare

(1) The facility must have policies and procedures in place to assure the prevention and appropriate response to any incident. In the case of incidents of abuse, suspected abuse, or injury of unknown cause, policies and procedures must follow the requirements outlined below. In the case of incidents that are not abuse or injuries of unknown cause where abuse has been ruled out, the facility must have policies and procedures in place to respond appropriately, which may include such things as re-assessment, monitoring, or medication review.

(2) ABUSE REPORTING. Abuse is prohibited. The facility employees, agents and licensee must not permit, aid, or engage in abuse of residents who are under their care.

(a) STAFF REPORTING. All facility employees are required to immediately report abuse and suspected abuse to the local Department office, or the local AAA, the facility administrator, or to the facility administrator's designee.

(b) FACILITY REPORTING. The facility administrator, or designee, must immediately notify the local Department office, or the local AAA, of any incident of abuse or suspected abuse, including events overheard or witnessed by observation.

(c) LAW ENFORCEMENT AGENCY. The local law enforcement agency must be called first when the suspected abuse is believed to be a crime (e.g., rape, murder, assault, burglary, kidnapping, theft of controlled substances, etc.).

(d) INJURY OF UNKNOWN CAUSE. Physical injury of unknown cause must be reported to the local Department office, or the local AAA, as suspected abuse, unless an immediate facility investigation reasonably concludes and documents that the physical injury is not the result of abuse.

(3) FACILITY INVESTIGATION OF ABUSE OR SUSPECTED ABUSE. In addition to immediately reporting abuse or suspected abuse to the Department, AAA, or the law enforcement agency, the facility must promptly investigate all reports of abuse and suspected abuse and take measures necessary to protect residents and prevent the reoccurrence of abuse. Investigation of suspected abuse must document:

(a) Time, date, place and individuals present;

(b) Description of the event as reported;

(d) Follow-up action; and

(e) Administrator's review.

(4) IMMUNITY AND PROHIBITION OF RETALIATION.

(a) The facility shall not interfere with a good faith disclosure of information by an employee or volunteer concerning abuse or other action affecting a resident’s safety or welfare. The information that is shared may include the reporting of violations of licensing or certification requirements, criminal activity at the facility, violations of state or federal laws or any practice that threatens the health and safety of a resident of the facility to:

(A) The Long-Term Care Ombudsman, the Oregon Department of Human Services, a law enforcement agency or other entity with legal or regulatory authority over the facility; or

(B) A family member, guardian, friend or other person who is acting on behalf of the resident.

(b) Unless performed with the intent to comply with state or federal law, including but not limited to protecting residents’ rights or carrying out a facility’s policies and procedures that are consistent with state and federal law, it is interference with the disclosure of information as described in subsection (a) if a facility:

(A) Asks or requires an employee or volunteer to sign a nondisclosure or similar agreement prohibiting the employee or volunteer from disclosing the information;

(B) Trains an employee or volunteer not to disclose the information; or

(C) Takes actions or communicates to the employee or volunteer that the employee or volunteer may not disclose the information.

(c) The facility licensee, employees and agents must not retaliate in any way against anyone who participates in the making of an abuse complaint, including but not limited to restricting otherwise lawful access to the facility or to any resident, or if an employee, dismissal or harassment.

(d) Anyone who, in good faith, reports abuse or suspected abuse shall have immunity from any liability that might otherwise be incurred or imposed with respect to the making or content of an abuse complaint.

History

Statutory/Other Authority: ORS 410.070, 443.450 & 443.417
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
APD 55-2021, amend filed 12/09/2021, effective 12/15/2021
APD 23-2021, temporary amend filed 06/21/2021, effective 06/23/2021 through 12/19/2021
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0030 Resident Services

(1) The residential care or assisted living facility must provide a minimum scope of services as follows:

(a) Three daily nutritious, palatable meals with snacks available seven days a week, in accordance with the recommended dietary allowances found in the United States Department of Agriculture (USDA) guidelines, including seasonal fresh fruit and fresh vegetables;

(A) Modified special diets that are appropriate to residents' needs and choices. The facility must encourage residents' involvement in developing menus.

(B) Menus must be prepared at least one week in advance, and must be made available to all residents. Meal substitutions must be of similar nutritional value if a resident refuses a food that is served. Residents must be informed in advance of menu changes.

(b) Personal and other laundry services;

(c) A daily program of social and recreational activities that are based upon individual and group interests, physical, mental, and psychosocial needs, and creates opportunities for active participation in the community at large;

(d) Equipment, supplies and space to meet individual and group activity needs;

(e) Services to assist the resident in performing all activities of daily living, on a 24-hour basis, including:

(A) Assistance with mobility, including one-person transfers;

(B) Assistance with bathing and washing hair;

(D) Assistance with dressing and undressing;

(E) Assistance with grooming (e.g., nail care and brushing/combing hair);

(F) Assistance with eating (e.g., supervision of eating, cueing, or the use of special utensils);

(G) Assistance with toileting and bowel and bladder management;

(H) Intermittent cuing, redirecting and environmental cues for cognitively impaired residents; and

(I) Intermittent intervention, supervision and staff support for residents who exhibit behavioral symptoms.

(f) Medication administration; and

(g) Household services essential for the health and comfort of the resident that are based upon the resident's needs and preferences (e.g., floor cleaning, dusting, bed making, etc.)

(2) The facility must provide or arrange for the following:

(a) Transportation for medical and social purposes; and

(b) Ancillary services for medically related care (e.g., physician, pharmacist, therapy, podiatry, barber or beauty services, social or recreational opportunities, hospice, and home health) and other services necessary to support the resident.

(3) Upon admission of a resident, the facility shall provide the resident or the resident’s representative with information developed by the Long-Term Care Ombudsman describing the availability and services of the ombudsman. The facility shall document that the facility provided this information as required.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
APD 23-2020, amend filed 06/20/2020, effective 06/24/2020
APD 53-2019, temporary amend filed 12/23/2019, effective 01/01/2020 through 06/28/2020
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0034 Temporary rule language in effect until 02/05/2027. Resident Move-In and Evaluation

(1) INITIAL SCREENING AND MOVE-IN.

(a) The facility must determine whether a potential resident meets the facility's admission requirements.

(b) Before the resident moves in, the facility must conduct an initial screening to determine the prospective resident's service needs and preferences. The screening must determine the ability of the facility to meet the potential resident's needs and preferences, including evaluating staff time required to meet estimated acuity needs for the resident, while considering the needs of the other residents and the facility's overall service capability.

(A) Legal name for billing purposes.

(B) To promote person-centered care, any variance from legal records, as indicated by the resident, regarding:

(i) Name.

(ii) Pronouns.

(iii) Gender identity.

(D) Emergency contacts.

(E) Service plan involvement - resident, family, and social supports.

(F) Financial and other legal relationships, if applicable, including, but not limited to:

(i) Advance directives.

(ii) Guardianship.

(iii) Conservatorship.

(iv) Power of attorney.

(G) Designated contact person, to be notified by the facility as outlined in OAR 411-054-0035.

(i) Facility must obtain full name, preferred contact information and preferred language of the individual to be contacted.

(ii) Facility shall immediately update contact information upon written notification from the resident or the designated contact person.

(iii) The resident, or resident’s legal representative may choose to decline to name a designated contact person. Facility must document if the resident declines.

(iv) The facility must document if the resident or the resident’s legal representative declines to name a designated contact person.

(H) Primary language.

(I) Community connections.

(J) Health and social service providers.

(2) RESIDENT EVALUATION - GENERAL. The resident evaluation identifies the resident's preferences, strengths, and relationships, as well as activities that are meaningful to the individual. The evaluation describes the resident's physical health status, mental status, and the environmental factors that help the individual function at their optimal level. The evaluation is the foundation that a facility uses to develop the resident's service plan. The evaluation information may be collected using tools and protocols established by the facility, but must contain the elements stated in this rule.

(a) Resident evaluations must be:

(A) Performed before the resident moves into the facility, with updates and changes as appropriate within the first 30 days; and

(B) Performed at least quarterly, to correspond with the quarterly service plan updates.

(D) Done in person and the facility must gather data that is relevant to the needs and current condition of the resident.

(E) Documented, dated, and indicate who was involved in the evaluation process.

(b) 24 months of past evaluations must be kept in the resident's files in an accessible, on-site location.

(c) The facility administrator is responsible for ensuring only trained and experienced staff perform resident evaluations.

(3) EVALUATION REQUIREMENTS AT MOVE-IN.

(a) The resident evaluation must be completed before the resident moves into the facility. This evaluation provides baseline information of the resident's physical and mental condition at move-in.

(b) If there is an urgent need and the evaluation is not completed before move-in, the facility must document the reasons and complete the evaluation within eight hours of move-in.

(c) The initial evaluation must contain the elements specified in section (5) of this rule and address sufficient information to develop an initial service plan to meet the resident's needs.

(d) The initial evaluation must be updated and modified as needed during the 30 days following the resident's move into the facility.

(e) After the initial 30 day move-in period, the initial evaluation must be retained in the resident's file for 24 months. Future evaluations must be separate and distinct from the initial evaluation.

(4) QUARTERLY EVALUATION REQUIREMENTS.

(a) Resident evaluations must be performed quarterly after the resident moves into the facility.

(b) The quarterly evaluation is the basis of the resident's quarterly service plan.

(c) The most recent quarterly evaluation, with documented change of condition updates, must be in the resident's current record and available to staff.

(d) If the evaluation is revised and updated at the quarterly review, changes must be dated and initialed and prior historical information must be maintained.

(5) The resident evaluation must address the following elements:

(a) For service planning purposes, if indicated by the resident,

(A) Name.

(B) Pronouns.

(b) Resident routines and preferences including:

(A) Customary routines, such as those related to sleeping, eating, and bathing;

(B) Interests, hobbies, and social and leisure activities;

(D) Additional elements as listed in OAR 411-054-0027(2).

(A) List of current diagnoses;

(B) List of medications and PRN use;

(D) Vital signs if indicated by diagnoses, health problems, or medications.

(d) Mental health issues including:

(A) Presence of depression, thought disorders, or behavioral or mood problems;

(B) History of treatment; and

(e) Cognition, including:

(A) Memory;

(B) Orientation;

(D) Decision-making abilities.

(f) Personality, including how the person copes with change or challenging situations.

(g) Communication and sensory abilities including:

(A) Hearing;

(B) Vision;

(D) Use of assistive devices; and

(E) Ability to understand and be understood.

(h) Activities of daily living including:

(A) Toileting, bowel, and bladder management;

(B) Dressing, grooming, bathing, and personal hygiene;

(D) Eating, dental status, and assistive devices.

(i) Independent activities of daily living including:

(A) Ability to manage medications;

(B) Ability to use call system;

(D) Transportation.

(j) Pain ‑ pharmaceutical and non-pharmaceutical interventions, including how a person expresses pain or discomfort.

(k) Skin condition.

(l) Nutrition habits, fluid preferences, and weight if indicated.

(m) List of treatments ‑ type, frequency, and level of assistance needed.

(n) Indicators of nursing needs, including potential for delegated nursing tasks.

(o) Review of risk indicators including:

(A) Fall risk or history;

(B) Emergency evacuation ability;

(D) History of dehydration or unexplained weight loss or gain;

(E) Recent losses;

(F) Unsuccessful prior placements;

(G) Elopement risk or history;

(H) Smoking. The resident's ability to smoke without causing burns or injury to themselves or others or damage to property must be evaluated and addressed in the resident's service plan; and

(I) Alcohol and drug use. The resident's use of alcohol or the use of drugs not prescribed by a physician must be evaluated and addressed in the resident's service plan.

(p) Environmental factors that impact the resident's behavior including, but not limited to:

(A) Noise.

(B) Lighting.

(6) If the information has not changed from the previous evaluation period, the information does not need to be repeated. A dated and initialed notation of no changes is sufficient. The prior evaluation must then be kept in the current resident record for reference.

History

Statutory/Other Authority: ORS 410.070, 441.122 & 443.450
Statutes/Other Implemented: ORS 441.111, 441.114, 443.400 - 443.455 & 443.991
APD 21-2026, temporary amend filed 08/03/2026, effective 08/10/2026 through 02/05/2027
APD 69-2024, amend filed 12/20/2024, effective 12/24/2024
APD 57-2024, amend filed 09/23/2024, effective 09/25/2024
APD 28-2024, temporary amend filed 06/21/2024, effective 07/01/2024 through 12/27/2024
APD 30-2019, amend filed 08/19/2019, effective 09/01/2019
APD 10-2016, f. 6-27-16, cert. ef. 6-28-16
SPD 11-2012, f. 8-31-12, cert. ef. 9-1-12
SPD 13-2009, f. 9-30-09, cert. ef. 10-1-09
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0035 Temporary rule language in effect until 02/05/2027. Designated Contact Person

(1) The facility must provide written notice to residents and their designated contact person:

(a) Upon receipt of a notice of substantiated abuse findings as defined in ORS 430.735.

(b) Upon receipt of a notice of enrollment in the Facility Enhanced Oversight and Supervision (FEOS) Program.

(2) The facility must notify the residents and their designated contact person in writing and must make the Department’s summary report available in a routinely accessible and clearly visible location, within 72 hours of receiving the report. This requirement applies when the Department’s summary report includes a finding of a substantiated rule violation that is pervasive or represents a systemic failure at the facility and the Department has:

(a) Found a rule violation resulting in serious harm, serious physical injury or death of a resident; or

(b) Imposed a licensing condition that includes a restriction of admissions.

History

Statutory/Other Authority: ORS 410.070, 443.436, 443.441, 443.875 & Or Laws 2025, ch. 619, § 5
Statutes/Other Implemented: ORS 443.400-443.455 & 443.991
APD 21-2026, temporary adopt filed 08/03/2026, effective 08/10/2026 through 02/05/2027

Or. Admin. R. 411-054-0036 Service Plan — General

(1) If the resident has a Person-Centered Service Plan pursuant to 411-004-0030, the facility must incorporate all elements identified in the person-centered service plan into the resident's service plan.

(2) SERVICE PLAN. The service plan must reflect the resident's needs as identified in the evaluation and include resident preferences that support the principles of dignity, privacy, choice, individuality, and independence.

(a) The service plan must be completed:

(A) Before resident move-in, with updates and changes as appropriate within the first 30-days; and

(B) Following quarterly evaluations.

(b) The service plan must be readily available to staff and provide clear direction regarding the delivery of services.

(c) The service plan must include a written description of who shall provide the services and what, when, how, and how often the services shall be provided.

(d) Changes and entries made to the service plan must be dated and initialed.

(e) When the resident experiences a significant change of condition the service plan must be reviewed and updated as needed.

(f) A copy of the service plan, including each update, must be offered to the resident or to the resident's legal representative.

(g) The facility administrator is responsible for ensuring the implementation of services.

(h) Review and update the resident’s ABST evaluation based on changes to the resident’s service plan, quarterly updates or a significant change of condition.

(3) SERVICE PLAN REQUIREMENTS BEFORE MOVE-IN.

(a) Based on the resident evaluation performed before move-in, an initial service plan must be developed before move-in that reflects the identified needs and preferences of the resident.

(b) The initial service plan must be reviewed within 30-days of move- in to ensure that any changes made to the plan during the initial 30- days, accurately reflect the resident's needs and preferences.

(4) QUARTERLY SERVICE PLAN REQUIREMENTS.

(a) Service plans must be completed quarterly after the resident moves into the facility.

(b) The quarterly evaluation is the basis of the resident's quarterly service plan.

(c) If the resident's service plan is revised and updated at the quarterly review, changes must be dated and initialed, and prior historical information must be maintained.

(5) SERVICE PLANNING TEAM. The service plan must be developed by a Service Planning Team that consists of the resident, the resident's legal representative, if applicable, any person of the resident's choice, the facility administrator or designee and at least one other staff person who is familiar with, or who is going to provide services to the resident. Involved family members and case managers must be notified in advance of the service-planning meeting.

(a) As applicable, the Service Planning Team must also include:

(A) Local APD or AAA case managers and family invited by the resident, as available.

(B) A licensed nurse if the resident shall need, or is receiving nursing services or experiences a significant change of condition as required in 411-054-0045(1)(f)(D) (Resident Health Services).

(b) Each resident must actively participate in the development of the service plan to the extent of the resident's ability and willingness to do so. If resident participation is not possible, documentation must reflect the facility's attempts to determine the resident's preferences.

(6) RISK AGREEMENT. When a resident's actions or choices pose a potential risk to that resident's health or well-being, the facility may utilize a risk agreement to explore alternatives and potential consequences with the resident.

(a) The facility must identify the need for and develop a written risk agreement following the facility's established guidelines and procedures. A risk agreement must include:

(A) An explanation of the cause of concern;

(B) The possible negative consequences to the resident or others;

(D) Possible alternatives or interventions to minimize the potential risks associated with the resident's current preferences and actions;

(E) A description of the services the facility shall provide to accommodate the residents' choice or minimize the potential risk; and

(F) The final agreement, if any, reached by all involved parties, must be included in the service plan.

(b) The licensing policy analyst must be consulted, and alternatives reviewed before the resident signs the agreement.

(c) The facility must involve the resident, the resident's designated representative, and others as indicated, to develop, implement, and review the risk agreement. The resident's preferences shall take precedence over those of a family member.

(d) A risk agreement shall not be entered into or continued with, or on behalf of, a resident who is unable to recognize the consequences of their behavior or choices.

(e) The risk agreement must be reviewed at least quarterly.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
APD 69-2024, amend filed 12/20/2024, effective 12/24/2024
APD 29-2024, temporary amend filed 06/21/2024, effective 07/01/2024 through 12/27/2024
APD 10-2016, f. 6-27-16, cert. ef. 6-28-16
APD 26-2015(Temp), f. 12-29-15, cert. ef. 1-1-16 thru 6-28-16
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0037 Acuity-Based Staffing Tool

(1) DEVELOP AND MAINTAIN ACUITY-BASED STAFFING. Facilities must select and implement a Department-approved Acuity-Based Staffing Tool (ABST) for determining appropriate staffing levels. Individual resident needs and care elements must be the primary consideration when developing and maintaining an ABST. Regardless of the ABST adopted, all requirements set forth in this rule and OAR 411-054-0034 (Resident Move‑in Evaluation) must be met. Facilities shall:

(a) Select and implement the Department’s developed ABST or submit a proprietary ABST to the Department for approval as outlined in paragraph (2) of this rule.

(b) Accurately capture care time and care elements that staff are providing to each resident as outlined in each individual service plan. Established care time for each care element must be resident specific, rather than a predetermined average.

(d) Develop ABST reports and posted staffing plans that reflect distinct and segregated areas as outlined in OAR 411-054-0070(1).

(e) If applicable, determine ABST time for residents on a Specific Needs Settings Contract and residents not on a Specific Needs Setting Contract to build posted staffing plan as outlined in this rule.

(f) Develop written policies and procedures to accurately and consistently implement the ABST. The policy must explain how a facility evaluates and accounts for both scheduled and unscheduled resident needs.

(g) Provide the relevant ABST information for a specific resident if requested by the Department, that specific resident, that specific resident’s legal representative, or the Long-Term Care Ombudsman.

(2) PROPRIETARY ABST. A facility that chooses to use a proprietary ABST must implement a Department-approved ABST that meets this rule.

(a) REQUIRED ELEMENTS. The proprietary ABST the facility adopts must meet the following requirements:

(A) Facilities can group or combine ABST care elements in their ABST reports, however each resident’s ABST evaluation must individually address and document all ABST care elements outlined in paragraph (3) of this rule.

(B) When calculating total time, the ABST must include the care elements for each resident and staff time needed to complete each individual care element.

(C) Ensure the ABST can produce a report that identifies all residents currently residing in the facility, the care elements for each of the residents, and the staff time required to complete the care elements for each resident.

(D) ABST total time must present in minutes per shift, per day. If the proprietary ABST does not have this functionality, at a minimum the ABST total time must present in daily minutes. If a Proprietary ABST presents total time in daily minutes the facility’s ABST policy must describe how staffing per shift is determined.

(E) Identify the date the resident’s ABST evaluation was last completed.

(F) If applicable, determine ABST time for both residents on a Specific Needs Contract and residents not on a Specific Needs Contract to build posted staffing plans as outlined in this rule.

(b) PROPRIETARY ABST REVIEW REQUEST. If a facility proposes to use a proprietary ABST, the facility must submit the Proprietary ABST ODHS Review Request form (se528132), including but not limited to the following:

(A) Facilities who want to implement or switch to a proprietary ABST must submit Proprietary ABST ODHS Review Request form (se528132) prior to implementation.

(B) Sample ABST report displaying the ABST care elements, and the staff time needed to complete the displayed care elements, with a total time in minutes shown per shift, per day. If the proprietary ABST only provides total time in daily minutes, the facility’s ABST policy must describe how staffing per shift is determined.

(c) ABST SUMMARY STATEMENT. If the proprietary review request is approved, a facility must develop and maintain an ABST Summary Statement that meets the requirements, as outlined in the Proprietary ABST ODHS Review Request form (se528132). This includes providing a general guide explaining how the ABST functions. The summary statement must be available upon request by the Department.

(d) DEPARTMENT REVIEW OF PROPOSED PROPRIETARY ABST REQUEST. The Department will review and either approve or deny the facility’s proprietary ABST. The Department may request additional documentation, potentially including a virtual demonstration, to make the determination. If the ABST is deemed to not meet this rule, the Department may deny or rescind approval at any time. The Department shall provide the facility with a written explanation of the reasons for the denial or decision to rescind approval. If a facility appeals a decision to rescind, the facility may continue to use the facility’s existing proprietary ABST until a final order has been issued.

(e) APPEALS PROCESS. The Department will determine whether to approve or deny the request. If the proprietary ABST is denied or rescinded, the facility is entitled to a contested case hearing pursuant to ORS chapter 183. Prior to a contested case hearing, the facility may request an informal conference.

(f) ANNUAL STATEMENT. Once approved, the facility must provide the Department an annual statement attesting no substantive changes have occurred to the design of the facility’s proprietary ABST that impacts its functionality. The facility must submit statements to the Department every year, between January 1 and March 31.

(g) If the facility makes substantive changes to the proprietary ABST design, and if those changes impact ABST functionality making the prior submitted information inaccurate or invalid, then the facility must re-submit to the Department the Proprietary ABST ODHS Review Request Form (se528132) as described in this rule for review prior to implementing the new or revised ABST.

(3) ABST CARE ELEMENTS. The required ABST care elements include activities of daily living and other tasks related to resident care and services, as outlined in OAR 411-054-0030, 411-054-0034, and 411-057-0160. If any individual care element requires more than one staff, additional time must be accounted for as described in 411-054-0070(1). The ABST must individually address and document the care time required to complete each of the following individual ABST care elements:

(a) Personal hygiene.

(b) Grooming.

(d) Toileting, bowel, and bladder management.

(e) Bathing.

(f) Transfers.

(g) Repositioning.

(h) Ambulation.

(i) Supervising, cueing, or supporting while eating.

(j) Medication administration.

(k) Providing non-drug interventions for pain management.

(l) Providing treatments.

(m) Cueing or redirecting due to cognitive impairment or dementia.

(n) Ensuring non-drug interventions for behaviors.

(o) Assisting with leisure activities, assist with social and recreational activities.

(p) Monitoring physical conditions or symptoms.

(q) Monitoring behavioral conditions or symptoms.

(r) Assisting with communication, assistive devices for hearing, vision, and speech.

(s) Responding to call lights.

(t) Safety checks, fall prevention

(u) Completing resident specific housekeeping or laundry services performed by care staff.

(v) Providing additional care services. If additional services are not provided, this element can be omitted.

(4) FREQUENCY OF UPDATES. Facilities must complete, update, review, and document the ABST evaluation for each resident according to the following schedule.

(a) Before a resident moves in.

(b) Whenever there is a significant change of condition as defined in OAR 411-054-0040(1)(b).

(c) No less than quarterly and corresponding with resident service plan updates, updating as required by OAR 411-054-0034.

(5) DEVELOP AND MAINTAIN UPDATED POSTED STAFFING PLAN. Each facility should use the results of an ABST to develop and update the facility’s posted staffing plan. The staffing plan must outline the staffing numbers required to meet the scheduled and unscheduled needs of all residents in the facility, for each shift. The ABST and staffing plan must be reviewed at the frequency required in paragraph (4) of this rule.

(a) The posted staffing plan must incorporate:

(A) The total ABST care time in minutes per shift, per day. If a proprietary ABST does not have this functionality, at a minimum the ABST total time must be shown in daily minutes as referenced in paragraph (2) of this rule.

(B) The unscheduled care needs of residents.

(D) Any other applicable factors to be considered. (e.g., disruptions to normal facility operations.)

(E) The time for paid or unpaid staff meal breaks must be accounted for and should not be included in the total scheduled staff time per shift.

(F) The facility’s distinct and segregated areas as outlined in OAR 411-054-0070(1) to meet the scheduled and unscheduled needs of residents who reside in each segregated area. Each distinct and segregated area must have a posted staffing plan.

(G) The staffing needs required under the Specific Needs Contracts, if applicable.

(b) The facility must maintain staffing documentation to show consistent staffing to meet or exceed the posted staffing plan 24 hours a day, seven days a week.

(c) The facility must maintain historical posted staffing plans. The posted staffing plan must contain the date(s) it was effective. Records must be kept for a minimum of three years.

(6) CONSISTENTLY MEETING NEEDS. The facility must consistently meet the scheduled and unscheduled needs of all residents, 24 hours a day, seven days a week.

(7) ABST REPORTING OF SPECIFIC NEEDS CONTRACTS AND EXCEPTIONAL PAYMENTS. Staffing required by a Specific Needs Contract (Contract), as described in OAR chapter 411, division 027, must be included in a facility’s ABST.

(a) If all residents within the facility are receiving service through a Contract:

(A) The facility’s staffing plan must include the number of staff required by the Contract and additional staff time, if required to meet the scheduled and unscheduled needs of the residents.

(B) If the ABST staffing analysis indicates numbers higher than the Contract, the facility must staff to the numbers indicated by the ABST.

(b) If certain residents within the facility are served under a Contract, and other residents are not served by a Contract:

(A) The facility must maintain a posted staffing plan that includes the staffing required for residents served by the Contract as well as the staffing required for residents not served by the Contract.

(B) The facility must prepare two distinct ABST reports: one for residents served by the Contract and the other for residents not served by the Contract.

(C) If the ABST indicates higher staffing numbers than the Contract for residents who are served by the Contract, the facility must staff to numbers indicated by the ABST.

(c) If the facility has any residents funded by an exceptional payment, as provided in OAR 411-027-0050, that must be included in the ABST and the facility must staff to the greater of the numbers as indicated in the exception or the ABST.

(8) ABST DOCUMENTATION: Each facility must be able to provide the Department with the following documentation, including but not limited to:

(a) Current ABST report.

(b) ABST total staff time in minutes necessary to meet the scheduled needs of residents daily, per shift, per day. If a proprietary ABST does not have this functionality, at a minimum the ABST total time must be shown in daily minutes as referenced in paragraph (2) of this rule.

(d) The facility’s proprietary ABST Summary Statement, if applicable.

(e) The Department’s ABST Proprietary Review Request form documenting the Department’s approval, upon request of the Department.

(f) The staffing needs required under the Specific Needs Contracts or Exceptional Payments, if applicable.

(9) REVIEW BY DEPARTMENT.

(a) The Department is required to assess facility staffing levels each time the Department conducts a survey or an investigation into a complaint regarding:

(A) Resident abuse;

(B) Resident injury;

(D) Staffing levels.

(b) The Department must confirm the facility is using a Departmentapproved ABST that meets the requirements established in this rule. This includes verifying whether the facility is:

(A) Consistently meeting the scheduled and unscheduled needs of all residents 24 hours a day, seven days a week.

(B) Consistently updating staffing levels at the frequency required by paragraph (4) of this rule.

(10) REQUIRED REGULATORY ACTION.

(a) The Department is required to take the following actions if it determines the facility:

(A) Has not selected and implemented an ABST, the Department will require the facility to adopt and implement the ODHS ABST until the facility selects and implements either the Department’s ABST or a Department-approved proprietary ABST.

(B) Is not meeting the scheduled and unscheduled needs of all residents 24 hours a day, seven days a week, the Department shall place a license condition in accordance with OAR 411-054-0110(3)(a), (b), (c) or (f). The facility will be monitored for continued compliance or until the licensed condition is withdrawn.

(b) The Department may issue corrective action in accordance with OAR 411-054-0106 to compel compliance if the facility is not:

(A) Consistently staffing to the levels, intensity and qualifications indicated by the ABST.

(B) Updating the posted staffing plan to meet the scheduled and unscheduled needs of all residents.

(D) Accurately capturing the care element time in the ABST based on the typical time taken to complete the task for each individual resident.

(E) Accurately capturing the care being provided by staff or outlined in the resident’s personal service plan.

(F) Using a Department-approved ABST.

History

Statutory/Other Authority: ORS 410.070, 443.450 & 443.738
Statutes/Other Implemented: ORS 443.400 - 443.455, 443.738, 443.991 & 678.710
APD 69-2024, amend filed 12/20/2024, effective 12/24/2024
APD 29-2024, temporary amend filed 06/21/2024, effective 07/01/2024 through 12/27/2024
APD 27-2022, adopt filed 06/15/2022, effective 06/24/2022
APD 58-2021, temporary adopt filed 12/23/2021, effective 01/01/2022 through 06/29/2022

Or. Admin. R. 411-054-0038 Individually-Based Limitations

This rule will begin being implemented January 1, 2017. The requirements in this rule must be in place no later than June 30, 2019.

(2) When a condition under OAR 411-004-0020(2)(d) to (2)(j) may not be met due to a threat to the health and safety of an individual or others, in a provider owned, controlled, or operated residential setting, an individually-based limitation process, as described in this rule, must apply.

(a) The specific and individualized assessed need justifying the individually-based limitation.

(b) The positive interventions and supports used prior to any individually-based limitation.

(d) A clear description of the limitation that is directly proportionate to the specific assessed need.

(e) Regular collection and review of data to measure the ongoing effectiveness of the individually-based limitation.

(h) An assurance that the interventions and support do not cause harm to the individual.

(i) If using a restraint, a facility must meet the requirements of OAR 411-054-0060.

(4) Providers are responsible for:

(b) Regular collection and review of data to measure the ongoing effectiveness of and the continued need for the individually-based limitation.

(c) Requesting a review of the individually-based limitation when a new individually-based limitation is indicated, or change or removal of an individually-based limitation is needed.

History

Statutory/Other Authority: ORS 409.050, 413.042, 413.085 & 443.738
Statutes/Other Implemented: ORS 409.050, 413.042, 413.085 & 443.738
APD 30-2017, amend filed 12/01/2017, effective 12/15/2017
APD 17-2017(Temp), f. & cert. ef. 8-1-17 thru 1-27-18
APD 10-2016, f. 6-27-16, cert. ef. 6-28-16
APD 26-2015(Temp), f. 12-29-15, cert. ef. 1-1-16 thru 6-28-16

Or. Admin. R. 411-054-0040 Change of Condition and Monitoring

(1) CHANGE OF CONDITION. These rules define a resident's change of condition as either short term or significant with the following meanings:

(a) Short term change of condition means a change in the resident's health or functioning that is expected to resolve or be reversed with minimal intervention or is an established, predictable, cyclical pattern associated with a previously diagnosed condition.

(b) Significant change of condition means a major deviation from the most recent evaluation that may affect multiple areas of functioning or health that is not expected to be short term and imposes significant risk to the resident.

(c) If a resident experiences a significant change of condition that is a major deviation in the resident's health or functional abilities, the facility must evaluate the resident, refer to the facility nurse, document the change, and update the service plan and the ABST. The staffing plan should also be updated, as needed.

(d) If a resident experiences a short-term change of condition that is expected to resolve or reverse with minimal intervention, the facility must determine and document what action or intervention is needed for the resident.

(A) The determined action or intervention must be communicated to staff on each shift.

(B) The documentation of staff instructions or interventions must be resident specific and made part of the resident record with weekly progress noted until the condition resolves.

(2) MONITORING. The facility must have written policies to ensure a resident monitoring and reporting system is implemented 24-hours a day. The policies must specify staff responsibilities and identify criteria for notifying the administrator, registered nurse, or healthcare provider. The facility must:

(a) Monitor each resident consistent with his or her evaluated needs and service plan;

(b) Train staff to identify changes in the resident's physical, emotional and mental functioning and document and report on the resident's changes of condition;

(c) Have a reporting protocol with access to a designated staff person, 24-hours a day, seven days a week, who can determine if a change in the resident's condition requires further action; and

(d) Provide written communication of a resident's change of condition, and any required interventions, for direct care staff on each shift.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
APD 69-2024, amend filed 12/20/2024, effective 12/24/2024
APD 19-2018, amend filed 06/29/2018, effective 06/29/2018
APD 35-2017, temporary amend filed 12/30/2017, effective 01/01/2018 through 06/29/2018
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0045 Resident Health Services

(1) RESIDENT HEALTH SERVICES. The facility must provide health services and have systems in place to respond to the 24-hour care needs of residents. The system must:

(a) Include written policies and procedures on medical emergency response for all shifts.

(b) Include an Oregon licensed nurse who is regularly scheduled for onsite duties at the facility and who is available for phone consultation.

(c) Assure an adequate number of nursing hours relevant to the census and acuity of the resident population. IICs must meet contract requirements concerning nursing hours.

(d) Ensure that the facility RN is notified of nursing needs as identified in OAR 411-054-0034 (Resident Move-In and Evaluation) or OAR 411-054-0036 (Service Plan – General).

(e) Define the duties, responsibilities and limitations of the facility nurse in policy and procedures, admission, and disclosure material.

(f) Licensed nurses must deliver the following nursing services:

(A) Registered nurse (RN) assessment in accordance with facility policy and resident condition. At minimum, the RN must assess all residents with a significant change of condition. The assessment may be a full or problem focused assessment as determined by the RN. A chart review or phone consultation may be performed as part of this assessment. The RN must document findings, resident status, and interventions made as a result of this assessment. The assessment must be timely, but is not required prior to emergency response in acute situations.

(B) Delegation and Teaching. Delegation and teaching must be provided and documented by a RN in accordance with the Oregon Administrative Rules adopted by the Oregon State Board of Nursing in chapter 851, division 047.

(C) Monitoring of Resident Condition. The facility must specify the role of the licensed nurse in the facility's monitoring and reporting system.

(D) Participation on Service Planning Team. If the resident experiences a significant change of condition and the service plan is updated, the licensed nurse must participate on the Service Planning Team, or must review the service plan with date and signature within 48 hours.

(E) Health Care Teaching and Counseling. A licensed nurse must provide individual and group education activities as required by individual service plans and facility policies.

(F) Intermittent Direct Nursing Services. If a resident requires nursing services that are not available through hospice, home health, a third-party referral, or the task cannot be delegated to facility staff, the facility must arrange to have such services provided on an intermittent or temporary basis. Such services may be of a temporary nature as defined in facility policy, admission agreements and disclosure information.

(2) ON-SITE AND OFF-SITE HEALTH SERVICES. The facility must assist residents in accessing health care services and benefits to which they are entitled from outside providers. When benefits are no longer available, or if the resident is not eligible for benefits, the facility must provide or coordinate the required services, as defined in facility disclosure information, for residents whose health status is stable and predictable.

(a) On-site Health Services. The facility must coordinate on-site health services with outside service providers such as hospice, home health, or other privately paid supplemental health care providers.

(A) The facility management or licensed nurse must be notified of the services provided by the outside provider to ensure that staff are informed of new interventions, and that the service plan is adjusted if necessary, and reporting protocols are in place.

(B) The facility nurse must review the resident's health related service plan changes made as a result of the provision of on-site health services noted in section (2)(a)(A) of this rule.

(C) The facility must have policies to ensure that outside service providers leave written information in the facility that addresses the on-site services being provided to the resident and any clinical information necessary for facility staff to provide supplemental care.

(b) Off-site Health Services. The facility must coordinate off-site health services for residents who cannot or choose not to self-manage their health services.

(A) The facility must assist the resident by coordinating appointments, with outside providers, that are necessary to support the resident's health needs.

(B) Transportation for medical purposes must be arranged or provided for by the facility.

(C) Following a resident's visit to an outside medical provider, if information is obtained from said provider, it must be included in the resident's record. Adjustments to the resident's services and service plan must be made as applicable.

(D) The facility must provide relevant information to the off-site provider and must have a protocol to facilitate the receipt of information from the provider.

(c) The facility is exempt from the coordination of outside health services for residents who are capable and choose to independently arrange and manage their health care needs.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
APD 24-2018, minor correction filed 07/11/2018, effective 07/11/2018
APD 19-2018, amend filed 06/29/2018, effective 06/29/2018
APD 35-2017, temporary amend filed 12/30/2017, effective 01/01/2018 through 06/29/2018
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0050 Infection Prevention and Control

(1) Facilities must establish and maintain infection prevention and control protocols to provide a safe, sanitary and comfortable environment. This includes protocols to prevent the development and transmission of communicable diseases.

(2) Each facility must designate an individual to be the facility’s “Infection Control Specialist” responsible for carrying out the infection prevention and control protocols and serving as the primary point of contact for the Department regarding disease outbreaks. The Infection Control Specialist must:

(a) Be qualified by education, training and experience or certification; and

(b) Complete specialized training in infection prevention and control protocols within three months of being designated under this paragraph, unless the designee has received the specialized training within the 24-month period prior to the time of the designation. The Department will describe trainings that will be acceptable to meet the specialized training requirement in rule, by January 1, 2022.

(3) Each facility must establish infection prevention and control protocols and have an Infection Control Specialist, trained as required in this rule, by July 1, 2022.

(4) Facilities must comply with masking requirements as prescribed in OAR 333-019-1011 or, if applicable, OAR 437-001-0744, to control the spread of COVID-19.

(5) Facilities must comply with vaccination requirements for COVID-19 as prescribed in OAR 333-019-1010. Facilities must maintain proof of vaccination or documentation of a medical or religious exemption as required in OAR 333-019-1010(4).

History

Statutory/Other Authority: ORS 410.070, 443.004, 443.012 & 443.450
Statutes/Other Implemented: ORS 443.004, 443.400-443.455 & 443.991
APD 10-2022, amend filed 03/10/2022, effective 03/18/2022
APD 40-2021, temporary amend filed 09/30/2021, effective 10/01/2021 through 03/28/2022
APD 20-2021, adopt filed 06/08/2021, effective 06/09/2021
APD 51-2020, temporary adopt filed 12/18/2020, effective 01/01/2021 through 06/29/2021

Or. Admin. R. 411-054-0055 Medications and Treatments

(1) MEDICATION AND TREATMENT ADMINISTRATION SYSTEMS. The facility must have safe medication and treatment administration systems in place that are approved by a pharmacist consultant, registered nurse, or physician.

(a) The administrator is responsible for ensuring adequate professional oversight of the medication and treatment administration system.

(b) Medications administered by the facility must be set-up or poured and documented by the same person who administers the medications.

(c) The staff person who administers the medication must visually observe the resident take (e.g., ingest, inhale, apply) the medication unless the prescriber's order for that specific medication states otherwise.

(d) Medications must be kept secure between set-up and administration of medications.

(e) The facility must have a system approved by a pharmacist consultant or registered nurse for tracking controlled substances and for disposal of all unused, outdated or discontinued medications administered by the facility.

(f) Medication and treatment orders must be carried out as prescribed.

(g) Written, signed physician or other legally recognized practitioner orders must be documented in the resident's facility record for all medications and treatments that the facility is responsible to administer.

(h) Only a physician or other legally recognized prescribing practitioner is authorized to make changes in a medication or treatment order.

(i) A registered pharmacist or registered nurse must review all medications and treatments administered by the facility to a resident at least every 90 days. The facility must provide documentation related to the recommendations made by the reviewer.

(j) The resident or the person legally authorized to make health care decisions for the resident has the right to consent to, or refuse, medications and treatments.

(k) The physician or other practitioner must be notified if a resident refuses consent to an order. Subsequent refusals to consent to an order will be reported as requested by the prescriber.

(2) MEDICATION ADMINISTRATION. An accurate Medication Administration Record (MAR) must be kept of all medications, including over-the-counter medications that are ordered by a legally recognized prescriber and are administered by the facility.

(a) Documentation of the MAR must be completed using one of the following processes. An alternative process may be used only with a written exception from the Department.

(A) The MAR may be signed as the medications are set-up or poured. Medications must not be set-up in advance for more than one administration time. If a medicine cup or other individual container is used to set-up the medications, it must be placed in a closed compartment labeled with the resident's name. Changes to the MAR that occur after the medication is delivered, must be documented by the same staff person who administered the medication.

(B) The facility may choose to sign the MAR after the medication is administered to a specific resident and prior to the next resident-specific medication or treatment.

(b) MEDICATION RECORD. At minimum, the medication record for each resident that the facility administers medications to, must include:

(A) Current month, day and year.

(B) Name of medications, reason for use, dosage, route and date and time given.

(C) Any medication specific instructions, if applicable (e.g., significant side effects, time sensitive dosage, when to call the prescriber or nurse).

(D) Resident allergies and sensitivities, if any.

(E) Resident specific parameters and instructions for p.r.n. medications.

(F) Initials of the person administering the medication.

(3) TREATMENT ADMINISTRATION.

(a) An accurate treatment record for each resident must be kept of all treatments ordered by a legally recognized practitioner and administered by the facility to that resident.

(b) The treatment record must include:

(A) Current month, day and year.

(B) Type of treatment (e.g., dressing change, ointment application), treatment instructions and if applicable, significant side effects or when to call the prescriber or nurse.

(D) Resident allergies and sensitivities, applicable to treatments.

(E) Instructions for p.r.n. treatments, including resident specific parameters.

(F) Initials of person administering the treatments.

(G) Any deviation from instructions or refusal of treatment must be documented.

(4) MEDICATION AND TREATMENT – GENERAL. The facility must maintain legible signatures of staff that administer medications and treatments, either on the MAR or on a separate signature page, filed with the MAR.

(a) If the facility administers or assists a resident with medication, all medication obtained through a pharmacy must be clearly labeled with the pharmacist's label, in the original container, in accordance with the facility's established medication delivery system.

(b) The facility shall ensure that prescription drugs dispensed to residents are packaged in a manner that reduces errors in the tracking and administration of the drugs, including, but not limited to, the use of unit dose systems or blister packs.

(A) The facility shall have as its primary goal dispensing prescription drugs in unit dose systems, blister packs or similar packaging.

(B) When unit dose packaging cannot be reasonably achieved, the facility shall have a written policy describing how prescription drugs that are not prepared as unit dose or blister packs shall be dispensed. Written policies shall be in effect not later than October 1, 2018.

(C) Subsection (b) of this rule does not apply to residents receiving pharmacy benefits through the United States Department of Veterans Affairs, if the pharmacy benefits do not reimburse cost of such packaging.

(c) Over-the-counter medication or samples of medications must have the original manufacturer's labels if the facility administers or assists a resident with medication.

(d) All medications administered by the facility must be stored in locked containers in a secured environment such as a medication room or medication cart.

(e) Medications that have to be refrigerated must be stored at the appropriate temperature in a locked, secure location.

(f) Order changes obtained by telephone must be documented in the resident's record and the MAR must be updated prior to administering the new medication stated on the order. Telephone orders must be followed-up with written, signed orders.

(g) The facility must not require residents to purchase prescriptions from a pharmacy that contracts with the facility.

(5) SELF ADMINISTRATION OF MEDICATION.

(a) Residents who choose to self-administer their medications must be evaluated upon move-in and at least quarterly thereafter, to assure ability to safely self-administer medications.

(b) Residents must have a physician's or other legally recognized practitioner's written order of approval for self-administration of prescription medications.

(d) If more than one resident resides in the unit, an evaluation must be made of each person and the resident's ability to safely have medications in the unit. If safety is a factor, the medications must be kept in a locked container in the unit.

(e) Unless contraindicated by a physician or resident evaluation, residents may keep and use over-the-counter medications in their unit without a written order.

(6) PSYCHOTROPIC MEDICATION. Psychotropic medications may be used only pursuant to a prescription that specifies the circumstances, dosage and duration of use.

(a) Facility administered psychotropic medications may be used only when required to treat a resident's medical symptoms or to maximize a resident's functioning.

(b) The facility must not request psychotropic medication to treat a resident's behavioral symptoms without a consultation from a physician, nurse practitioner, registered nurse, or mental health professional. This does not apply when a resident is enrolled in a hospice program as defined in OAR 333-035-0050.

(c) Prior to requesting a psychotropic medication, the facility must demonstrate through the evaluation and service planning process that non-pharmacological interventions have been attempted.

(d) Prior to administering any psychotropic medications to treat a resident's behavior, all direct care staff administering medications for the resident must know:

(A) The specific reasons for the use of the psychotropic medication for that resident.

(B) The common side effects of the medications.

(e) When a psychotropic medication is ordered by a health care practitioner other than the resident's primary care provider, the facility is responsible for notifying the resident's primary care provider of that medication order within 72 hours of when the facility was notified of the order. This includes weekends and holidays. Notification may be either by telephone or electronic submission and should be documented by the facility.

(f) Medications that are administered p.r.n. that are given to treat a resident's behavior must have written, resident-specific parameters.

(A) These p.r.n. medications may be used only after documented; non-pharmacological interventions have been tried with ineffective results.

(B) All direct care staff must have knowledge of non-pharmacological interventions.

(g) Psychotropic medications must not be given to discipline a resident, or for the convenience of the facility.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
APD 30-2019, amend filed 08/19/2019, effective 09/01/2019
APD 19-2018, amend filed 06/29/2018, effective 06/29/2018
APD 35-2017, temporary amend filed 12/30/2017, effective 01/01/2018 through 06/29/2018
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0060 Restraints and Supportive Devices

Residential care and assisted living facilities are intended to be restraint free environments.

(1) Restraints are not permitted except when a resident's actions present an imminent danger to self or others and only until immediate action is taken by medical, emergency, or police personnel.

(2) Supportive devices with restraining qualities are permitted under the following documented circumstances, the:

(a) Resident specifically requests or approves of the device and the facility has informed the individual of the risks and benefits associated with the device;

(b) Facility registered nurse, a physical therapist or occupational therapist has conducted a thorough assessment;

(d) Facility has instructed direct care staff on the correct use and precautions related to use of the device.

(3) Supportive devices with restraining qualities may be utilized for residents who are unable to evaluate the risks and benefits of the device when sections (2)(b), (2)(c) and (2)(d) have been met. As of July 1, 2018 the process as identified in 411-054-0038 for Individually-Based Limitations must be followed for anything that meets the definition of restraint, including, but not limited to, supportive devices with restraining qualities.

(4) Documentation of the use of supportive devices with restraining qualities must be included in the resident service plan and evaluated on a quarterly basis.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
APD 19-2018, amend filed 06/29/2018, effective 06/29/2018
APD 35-2017, temporary amend filed 12/30/2017, effective 01/01/2018 through 06/29/2018
APD 30-2017, amend filed 12/01/2017, effective 12/15/2017
APD 17-2017(Temp), f. & cert. ef. 8-1-17 thru 1-27-18
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0065 Administrator Qualifications and Requirements

(1) FULL-TIME ADMINISTRATOR. Each licensed residential care and assisted living facility must employ a full-time administrator. The administrator must be scheduled to be on-site in the facility at least 40 hours per week. Each individual serving as an administrator of a residential care or assisted living facility must soon obtain an administrator’s license. This new licensing program will be phased in over a two-year period; by January 1, 2022, in order to work as an administrator, individuals must obtain a full “Residential Care Facility Administrator” license from the Health Licensing Office, Oregon Health Authority, as required by OAR chapter 853. Until January 1, 2022, there are three different options available to administrators. These three options are outlined in sections (2), (3) and (4) below:

(2) FULL ADMINISTRATOR LICENSE.

(a) Individuals who applied to the Health Licensing Office by July 1, 2019 and met all requirements of OAR chapter 853, were issued a full residential care administrator license.

(b) At any time, individuals who apply to the Health Licensing Office and complete all requirements in OAR chapter 853, including passing the Oregon laws and rules examination, will be issued a full administrator license.

(c) By January 1, 2022, all individuals working as an administrator of a residential care or assisted living facility must have obtained this full license.

(d) All individuals holding a full administrator license must comply with the annual training requirements and the standards of practice and professional conduct established by the Long Term Care Administrators Board, as outlined in OAR chapter 853, in order to maintain this license,

(3) PROVISIONAL ADMINISTRATOR LICENSE.

(a) Individuals who applied to the Health Licensing Office by July 1, 2019 but did not meet all requirements in OAR chapter 853, were issued a provisional administrator license. This provisional license expires on December 31st, 2020. Individuals holding a provisional license are required to pass the Oregon laws and rules examination before January 1, 2022 as outlined in OAR chapter 853, in order to continue to work as an administrator.

(b) All individuals holding a provisional administrator license must comply with the annual training requirements and the standards of practice and professional conduct established by the Long Term Care Administrators Board, as outlined in OAR chapter 853,

(4) DHS-APPROVED ADMINISTRATOR REQUIREMENTS.

(a) Individuals may continue to serve as administrators under the original Department-approved program until January 1, 2022. This Department-approved program requires potential administrators meet the following:

(A) Be at least 21 years of age:

(B) Possess a high school diploma or equivalent; and

(i) Have at least two years professional or management experience that has occurred within the last five years, in a health or social service related field or program, or have a combination of experience and education; or

(ii) Possess an accredited Bachelor's Degree in a health or social service related field.

(b) Facility administrators must meet the following training requirements before employment:

(A) Complete a Department approved classroom administrator training program of at least 40 hours;

(B) Complete a Department approved administrator training program that includes both a classroom training of less than 40 hours and a Department approved 40-hour internship program with a Department approved administrator; or

(c) Administrators must have 20 hours of documented Department-approved continuing education credits each year. The approved administrator training program fulfills the 20-hour continuing education requirement for the first year.

(d) Persons who have met Department approved training program requirements, but have been absent from an administrator position for five years or less, do not have to re-take the administrator training, but must provide evidence of 20 hours of annual continuing education until January 1, 2022, by which date all administrators must have obtained a residential care administrator license.

(e) Before employment as a facility administrator, persons must complete the criminal records check requirements in OAR 407-007-0200 to 407-007-0370 and comply with the tuberculosis screening recommendations in OAR 333-019-0041. An administrator of a facility may not have convictions of any of the crimes described in OAR 407-007-0275.

(f) Newly hired administrators are responsible for the completion of form SDS 0566, Administrator Reference Summary, and are required to email or fax the completed form to the Department upon hire. The Department may reject a form that has been falsified or is incomplete.

(5) DESIGNEE WHEN ADMINISTRATOR TEMPORARILY ABSENT. The administrator must appoint a staff member as designee to oversee the operation of the facility in the temporary absence of the administrator. Whomever is in charge, whether the administrator or the temporary designee, must at all times:

(a) Be in charge on-site.

(b) Ensure there are sufficient, qualified staff.

(d) If the absence of the administrator is to exceed 30 days, the facility must notify the Department and obtain approval for arrangements prior to the absence.

(6) INTERIM ADMINISTRATOR. During times of transition, when the facility does not have a licensed or approved administrator, the facility is responsible for providing administrator functions. In such a situation, the facility must contact the Department immediately and provide the following:

(a) Documentation of the background and qualifications of the proposed interim administrator.

(b) A completed background check request.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
APD 23-2020, amend filed 06/20/2020, effective 06/24/2020
APD 54-2019, temporary amend filed 12/23/2019, effective 01/01/2020 through 06/28/2020
APD 10-2016, f. 6-27-16, cert. ef. 6-28-16
SPD 10-2010, f. 6-30-10, cert. ef. 7-1-10
SPD 23-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0070 Temporary rule language in effect until 02/05/2027. Staffing Requirements and Training

(1) STAFFING REQUIREMENTS. Facilities must consistently have qualified awake direct care staff, sufficient in number to meet the 24-hour scheduled and unscheduled needs of each resident. Direct care staff provide services for residents that include assistance with activities of daily living, medication administration, resident-focused activities, supervision, and support.

(a) If a facility employs universal workers whose duties include other tasks (e.g., housekeeping, laundry, food service), in addition to direct resident care, staffing must be increased to maintain adequate resident care and services.

(b) Prior to providing care and services to residents, direct care staff must be trained as required in sections (2) - (4) of this rule.

(A) Individuals whose duties are exclusively housekeeping, building maintenance, clerical, administrative, or food preparation.

(B) Licensed nurses who provide services as specified in OAR 411-054-0045 (Resident Health Services).

(d) The Department retains the right to require minimum staffing standards based on acuity, complaint investigation or survey inspection.

(e) Based on resident acuity and facility structural design there must be adequate direct care staff present at all times, to meet the fire safety evacuation standards as required by the fire authority or the Department.

(f) The licensee is responsible for assuring that staffing is increased to compensate for the evaluated care and service needs of residents at move-in and for the changing physical or mental needs of the residents.

(g) A minimum of two direct care staff must be scheduled and available at all times whenever a resident requires the assistance of two direct care staff for scheduled and unscheduled needs.

(h) In facilities where residents are housed in two or more detached buildings, or if a building has distinct and segregated areas, a designated caregiver must be awake and available in each building and each segregated area at all times.

(i) Facilities must have a written, defined system to determine appropriate numbers of direct care staff and general staffing based on resident acuity and service needs. Such systems may be either manual or electronic.

(A) Guidelines for systems must also consider physical elements of a building, use of technology if applicable and staff experience.

(B) Facilities must be able to demonstrate how their staffing system works.

(j) All staff will have a written position description that specifies their specific duties and responsibilities.

(2) REQUIREMENTS APPLICABLE TO ALL TRAINING. The facility shall:

(a) Have a training program that includes methods to determine competency of direct care staff through evaluation, observation, or written testing. Facility must also maintain documentation regarding the demonstrated competency of each direct care staff.

(b) Maintain written documentation of all trainings completed by each employee.

(3) PRE-SERVICE ORIENTATION FOR ALL EMPLOYEES. Prior to beginning their job responsibilities, all employees must complete orientation training regarding:

(a) A review of their written position description with their job responsibilities.

(b) RESIDENTS’ RIGHTS. Residents' rights and the values of community-based care, including the Department-approved LGBTQIA2S+ trainings.

(A) Effective December 31, 2024, all staff must have completed the required training. All new staff, hired on and after January 1, 2025, must complete the required training prior to beginning job responsibilities.

(B) The Department-approved LGBTQIA2S+ trainings shall address the elements described in paragraph (6)(b) of this rule.

(d) Fire safety and emergency procedures per OAR 411-054-0090 and 411-054-0093.

(e) INFECTIOUS DISEASE PREVENTION. Prior to beginning their job responsibilities, unless the employee received the training described below within the 24-month period prior to the time of hiring, all employees must complete training addressing the prevention, recognition, control and reporting of the spread of infectious disease.

(A) The Department, in consultation with the Oregon Health Authority, determined training must address the following curricula:

(i) Transmission of communicable disease and infections, including development of a policy with criteria directing staff to stay home when ill with a communicable disease, so as not to transmit disease.

(ii) Policy addressing respiratory hygiene and coughing etiquette.

(iii) Standard precautions.

(iv) Hand hygiene.

(v) Use of personal protective equipment.

(vi) Cleaning of physical environment, including, but not limited to disinfecting high-touch surfaces and equipment, and handling, storing, processing and transporting linens to prevent the spread of infection.

(vii) Isolating and cohosting of residents during a disease outbreak.

(viii) Employees must also receive training on the rights and responsibilities of employees to report disease outbreaks under ORS 433.004 and safeguards for employees who report disease outbreaks.

(B) INFECTIOUS DISEASE TRAINING CURRICULUM. Pre-service infectious disease training curriculum must be approved by the Department before facilities may offer training to staff.

(i) The pre-service training may be provided in person, in writing, by webinar or by other electronic means.

(ii) Facilities or other entities that want to provide training curriculum to facilities must first present that curriculum to the Department for review and approval.

(f) HOME AND COMMUNITY-BASED SERVICES (HCBS) TRAINING. All staff are required to complete the Department-approved HCBS training, as provided below:

(A) Effective March 31, 2024, all staff must have completed the required training.

(B) All new staff, hired on or after April 1, 2024, must complete the required training prior to beginning job responsibilities.

(g) FOOD HANDLING. If the staff member's duties include preparing food, they must have a food handler's certificate.

(4) PRE-SERVICE TRAINING FOR ALL DIRECT CARE STAFF.

(a) DEMENTIA. Prior to providing care to residents, all direct care staff must complete an approved pre-service dementia training.

(A) Documentation of dementia training:

(i) A certificate of completion shall be issued to direct care staff who satisfactorily complete approved dementia training. Facilities shall also maintain records of all direct care staff who have successfully completed pre-service dementia training.

(ii) Each facility shall maintain written documentation of continuing education completed, including required pre-service dementia training, for all direct care staff.

(B) Portability of pre-service dementia training: After completing the pre-service training, if a direct care staff person is hired within 24 months by a different facility, the hiring facility may choose to accept the previous training or require the direct care staff to complete the hiring facility’s pre-service dementia training.

(D) Pre-service dementia care training must include the following subject areas:

(i) Education on the dementia disease process, including the progression of the disease, memory loss, and psychiatric and behavioral symptoms.

(ii) Techniques for understanding, communicating, and responding to distressful behavioral symptoms, including, but not limited to, reducing the use of antipsychotic medications for non-standard uses.

(iii) Strategies for addressing social needs of residents with dementia and engaging them with meaningful activities.

(iv) Information concerning specific aspects of dementia care and ensuring the safety of residents with dementia, including, but not limited to, how to:

(I) Identify and address pain.

(II) Provide food and fluids.

(III) Prevent wandering and elopement.

(IV) Use a person-centered approach.

(b) ORIENTATION TO RESIDENT. Pre-service orientation to resident:

(A) Prior to providing personal care services for a resident, direct care staff must receive an orientation to the resident, including the resident's service plan.

(B) Direct care staff members must be directly supervised by a qualified person until they have successfully demonstrated satisfactory performance in any task assigned and the provision of individualized resident services, as applicable.

(6) TRAINING WITHIN 30 DAYS OF HIRE FOR DIRECT CARE STAFF.

(a) The facility is responsible for verifying that direct care staff have demonstrated satisfactory performance in any duty they are assigned.

(b) Knowledge and performance must be demonstrated in all areas within the first 30 days of hire, including, but not limited to:

(A) The role of service plans in providing individualized resident care.

(B) Providing assistance with the activities of daily living.

(D) Identification of changes in the resident's physical, emotional and mental functioning and documentation and reporting on the resident's changes of condition.

(E) Conditions that require assessment, treatment, observation and reporting.

(F) General food safety, serving and sanitation.

(G) If the direct care staff person’s duties include the administration of medication or treatments, appropriate facility staff, in accordance with OAR 411-054-0055 (Medications and Treatments) must document that they have observed and evaluated the individual's ability to perform safe medication and treatment administration unsupervised.

(7) ANNUAL AND BIENNIAL INSERVICE FOR ALL STAFF.

(a) Annual infectious disease training requires the following:

(A) Administrators and employees will be required to complete annual training on infectious disease outbreak and infection control. Such training will be included within the current number of required annual training hours and will not necessitate additional hours of training.

(B) Annual in-service training must be documented in the employee record.

(b) Biennial LGBTQIA2S+ training requires the following:

(A) Administrators and employees shall be required to complete biennial training addressing LGBTQIA2S+ protections, as described in this section. The facility is responsible for the cost of providing this training to all facility staff.

(i) Each facility shall designate two employees, one who represents management and one who represents direct care staff. It is acceptable for the designated employee representing management to generally be housed off-site, but the direct care representative must be onsite.

(ii) The designated employees shall serve as points of contact for the facility regarding compliance with the preservice and biennial training requirements. These individuals shall develop a general training plan for the facility.

(B) Facilities must select the LGBTQIA2S+ training to be used by the facility by either:

(i) Choosing to use the standard Department-approved biennial LGBTQIA2S+ training, or

(ii) Applying to the Department to request approval of a biennial LGBTQIA2S+ training to be provided by the facility.

(i) Caring for LGBTQIA2S+ residents and residents living with human immunodeficiency virus.

(ii) Preventing discrimination based on a resident’s sexual orientation, gender identity, gender expression or human immunodeficiency virus status.

(iii) The defined terms commonly associated with LGBTQIA2S+ individuals and human immunodeficiency virus status.

(iv) Best practices for communicating with or about LGBTQIA2S+ residents and residents living with human immunodeficiency virus, including the use of an individual’s chosen name and pronouns.

(v) A description of the health and social challenges historically experienced by LGBTQIA2S+ residents and residents living with human immunodeficiency virus, including discrimination when seeking or receiving care at care facilities and the demonstrated physical and mental health effects within the LGBTQIA2S+ community associated with such discrimination.

(vi) Strategies to create a safe and affirming environment for LGBTQIA2S+ residents and residents living with human immunodeficiency virus, including suggested changes to care facility policies and procedures, forms, signage, communication between residents and their families, activities, in-house services and staff training.

(vii) The facility, individual or entity providing the training must demonstrate a commitment to advancing quality care for LGBTQIA2S+ residents and residents living with human immunodeficiency virus in this state.

(D) The proposal for training submitted by a facility, entity, or individual shall include:

(i) The regulatory criteria described in paragraph (C) of this section as part of the proposal.

(ii) The following elements must be included in the proposal:

(I) A statement of the qualifications and training experience of the facility, individual or entity providing the training;

(II) The proposed methodology for providing the training either online or in person.

(III) An outline of the training.

(IV) Copies of the materials to be used in the training.

(iii) The Department will review the materials and determine whether to approve or deny the training. No later than 90 days after the request is received, the Department will inform the facility in writing of the Department’s decision.

(A) All staff will be required to complete annual training concerning the Home and Community-Based Services regulations.

(B) Annual in-service training must be documented in the employee record.

(8) ANNUAL IN-SERVICE TRAINING FOR DIRECT CARE STAFF.

(a) All direct care staff must complete and document a minimum of 12 hours of in-service training annually on topics related to the provision of care for persons in a community-based care setting, including training on chronic diseases in the facility population, LGBTQIA2S+ and dementia training. Annual in-service training hours are based on the anniversary date of hire.

(b) Requirements for annual in-service dementia training:

(A) Each direct care staff must complete 6 hours of annual in-service training on dementia care.

(B) Dementia care training may be included in the required minimum 12 hours of annual in-service training described in subsection (a) above.

(C) Dementia care training must reflect current standards for dementia care and be informed by the best evidence in the care and treatment of dementia.

(D) The facility must determine the competency of direct care staff in dementia care in the following ways:

(i) Utilize approved dementia care training for its direct care staff, coupled with methods to perform a competency assessment as defined in OAR 411-054-0005(21).

(ii) Ensure direct care staff have demonstrated competency in any duty they are assigned. Facility staff in a supervisory role shall perform assessment of each direct care staff.

(iii) Maintain written documentation of all dementia care training completed by each direct care staff and must maintain documentation regarding each employee’s assessed competency.

(9) APPROVAL OF DEMENTIA TRAINING CURRICULUM. All dementia care training provided to direct care staff must be approved by a private or non-profit organization that is approved by the Department through a "Request for Application" (RFA) process.

(10) ADDITIONAL REQUIREMENTS. Staff:

(a) Under 18 years of age may not perform medication administration or delegated nursing tasks. Staff under the age of 18 must be directly supervised when providing bathing, toileting, incontinence care or transferring services.

(b) Must be trained in the use of abdominal thrust and First Aid. Cardiopulmonary resuscitation (CPR) training is recommended but not required.

(c) Must have sufficient communication and language skills to enable them to perform their duties and communicate with residents, other staff, family members, and health care professionals, as needed.

(11) Contractors who provide services or supports directly to residents must complete the required LGBTQIA2S+ trainings outlined in paragraph (7)(b)(C) of this rule.

(a) Contractors who must be trained include, but are not limited to, RN and consultants, housekeeping services, dietary services, beauticians, barbers, or other contractors who provide services or supports directly to residents.

(b) Exempt from this training requirement are contractors who contract directly with the resident or the resident’s representative, and contractors who do not generally provide services or supports directly to residents, including, but not limited to, contractors for landscaping, pest control, deliveries and building repairs.

(c) By December 31, 2024, facilities shall ensure that all contracts entered into with entities described in paragraph (a) of this section shall include language requiring contractors provide Department-approved LGBTQIA2S+ training to their employees within 12 months of entering into the contract with the facility and every two years thereafter.

(d) For existing contracts in effect January 1, 2025, facilities shall require the contractor provide Department-approved LGBTQIA2s+ training to employees by December 31, 2025, and every two years thereafter.

(e) For new contracts created after January 1, 2025, facilities shall require contractors provide the Department-approved LGBTQIA2S+ training to employees within 12 months of entering into the contract with the facility, and every two years thereafter.

(f) Facilities must inform contractors that the cost of all LGBTQIA2S+ trainings for contracted employees shall be paid by the contractor.

History

Statutory/Other Authority: ORS 410.070, 441.112 & 443.450
Statutes/Other Implemented: ORS 441.116, 443.400 - 443.455 & 443.991
APD 21-2026, temporary amend filed 08/03/2026, effective 08/10/2026 through 02/05/2027
APD 69-2024, amend filed 12/20/2024, effective 12/24/2024
APD 30-2024, amend filed 06/21/2024, effective 07/01/2024
APD 12-2024, temporary amend filed 03/28/2024, effective 04/01/2024 through 07/06/2024
APD 3-2024, temporary amend filed 01/08/2024, effective 01/09/2024 through 07/06/2024
APD 20-2021, amend filed 06/08/2021, effective 06/09/2021
APD 51-2020, temporary amend filed 12/18/2020, effective 01/01/2021 through 06/29/2021
APD 19-2018, amend filed 06/29/2018, effective 06/29/2018
APD 35-2017, temporary amend filed 12/30/2017, effective 01/01/2018 through 06/29/2018
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0080 Involuntary Move-out Criteria

The Department of Human Services, Aging and People with Disabilities Office encourages facilities to support a resident's choice to remain in his or her living environment while recognizing that some residents may no longer be appropriate for the community-based care setting due to safety and medical limitations.

(1) Information must be specified in the facility's disclosure information OAR 411-054-0026 (Notice to Potential Residents) that describes the types of health, nursing, behavior, and care services the facility is able and unable to provide. In addition, facilities endorsed under OAR chapter 411, division 057 (Endorsed Memory Care Communities) must provide services to support residents with the progressive symptoms of dementia. Facilities will not be required to permanently provide staffing beyond the staffing services stated in the residency agreement; however, facilities may need to provide additional services to residents on a short-term basis to ensure safety of residents and to facilitate transfer to a more appropriate setting. The minimum required services identified in the following sections and outlined in disclosure documents must be provided before a resident may be asked to move out:

(a) OAR 411-054-0070(1) (Staffing).

(b) OAR 411-054-0030 (Resident Services).

(c) OAR 411-054-0045(1)(f)(F) (Intermittent Direct Nursing Services). Such services may be of a temporary nature as defined in the facility policy, admission agreements and disclosure information. This means the facility is not required to provide services beyond the scope of the facility license or in a manner that does not support the health and safety of the resident or others in the facility.

(2) REASONS FOR INVOLUNTARY 30-DAY MOVE-OUT NOTICE. A resident may be asked to move from a facility if one or more of the following circumstances exists:

(a) The resident's needs exceed the level of ADL services the facility provides as specified in the facility's disclosure information;

(b) The resident engages in behavior or actions that repeatedly and substantially interferes with the rights, health, or safety of residents or others;

(c) The resident has a medical or nursing condition that is complex, unstable or unpredictable, and exceeds the level of health services the facility provides as specified in the facility's disclosure information;

(d) The facility is unable to accomplish resident evacuation in accordance with OAR 411-054-0090 (Fire and Life Safety);

(e) The resident exhibits behavior that poses a danger to self or others;

(f) The resident engages in illegal drug use, or commits a criminal act that causes potential harm to the resident or others; or

(g) Non-payment of charges.

(3) Prior to issuing a move-out notice, the facility shall communicate with the resident or resident’s legal representative regarding the reasons for the move-out and attempt to resolve the reason for move out. The facility must document efforts to resolve the move out.

(4) PROCESS FOR ISSUING AN INVOLUNTARY 30-DAY MOVE-OUT NOTICE. Except as otherwise provided in these rules, the following apply to a 30-day move out:

(a) A facility may not require a resident to engage in an involuntary move out from the facility without first providing 30-day notice to the resident, resident’s legal representative, the Office of the Long-Term Care Ombudsman, and the resident’s case manager, if the resident has a case manager.

(b) Before the facility issues a 30-day notice to the resident, the resident’s legal representative, the Office of the Long-Term Care Ombudsman, or the resident’s case manager, the facility must first submit the written notice to the Department for review and receive a written response from the Department stating the notice and other documentation submitted by the facility complies with these rules.

(5) As part of the facility submission of the 30-day notice to the Department as described in (4), the facility must demonstrate that the facility has made all relevant, appropriate efforts to resolve the reason(s) for the requested move-out. At a minimum, the facility must provide to the Department the following written information concerning the proposed move-out:

(a) A copy of the proposed 30-Day Move-out and Administrative Hearing Request (form APD 0567 and form MSC 0443), which includes a written explanation of the reason(s) for the requested move out.

(b) The two (2) most recent service plans, showing modifications made in attempt to resolve the reason for the requested move out. The only exception to this specific requirement involves any proposed move-out due to resident non-payment issues.

(6) After receiving the facility’s documentation under (5) of this rule, the Department may request additional documentation from the facility concerning the proposed move-out. Such requested documentation may include, but is not limited to:

(a) Documentation of the facility’s attempts to resolve the reason for the proposed move-out such as related progress notes, relevant Medication Administration Record(s), evaluations, clinical assessments, physician notes, and other documentation demonstrating the facility has attempted to staff resident’s temporary or intermittent needs.

(b) Documentation that demonstrates the proposed move-out is consistent with the facility’s:

(A) Uniform Disclosure Statement, as required by OAR 411-054-0026(1).

(B) Residency Agreement, as required by OAR 411-054-0026(2).

(c) Names and contact information of additional parties or witnesses, as appropriate, to allow the Department to obtain additional facts regarding the reason for the move.

(7) After receiving all information required under (5) and requested under (6) of this rule, the Department will have two business days to review the 30-day involuntary move out notice and any related documentation and provide the facility with written notice indicating whether or not the Department has determined the facility has provided satisfactory documentation in compliance with these rules. If the Department determines sufficient documentation has not been provided, the Department will deny the move-out notice. A denial does not prohibit a facility from submitting or resubmitting a move-out notice that satisfies the criteria contained in (5) of this rule.

(8) The Department will provide written notice to the facility with a determination regarding the proposed move-out. However, if the Department determines regulatory criteria established in rule were not met, the facility may not issue the move-out notice.

(9) The facility may issue the notice if the Department has determined regulatory criteria were met; the facility must email a copy of the final version of form APD 0567 to the Department, the resident, the resident's legal representative, the resident’s case manager, and the Office of the Long-Term Care Ombudsman.

(a) The 30-Day Move-Out and Hearing Notification form (form APD 0567) must include notice of both the move-out and the right to request a hearing (form MSC 0443).

(b) If the correct form, containing both notices, is not delivered to all necessary parties, the 30-Day Move-Out and Hearing Notice form is insufficient, and the timeline does not start until both notices are jointly supplied.

(10) Informal conferences and administrative hearings requested under (9) will be conducted according to (19) of this rule.

(11) LESS THAN 30-DAY MOVE-OUT NOTICE. The resident must be given 30 days advance written notice before being asked to move out or not return to the facility, except in the following unusual circumstances:

(a) A resident has been admitted or treated at a health care facility for a significant medical or psychiatric event. At the time the resident is to return to the facility, qualified facility staff have evaluated the resident's health, medical, behavioral or care needs and have determined the facility is unable to meet the resident's needs pursuant to section (1) of this rule due to the resident’s significant and ongoing change of condition related to a medical or psychiatric event, whether that event was the reason for leaving the facility for treatment, or arose while the resident was being treated at the health care facility.

(A) A “significant medical or psychiatric event” is defined as a serious illness, injury, impairment, or physical or mental condition that results in a change of condition such that the facility cannot meet the needs of the resident, and the resident requires inpatient care in a health care facility on a continuing and permanent basis.

(B) For the duration of the resident’s time in the health care facility, a facility must stay informed of the status of the resident’s health by communicating with the health care facility on a consistent, ongoing basis.

(C) When a resident has been admitted or treated at a health care facility for a significant medical or psychiatric event, once the health care facility has given notice to the facility that the resident is ready to be discharged to return to the facility, qualified facility staff shall evaluate the resident's health, medical, behavioral or care needs within a reasonable time, but no later than 24 hours after the resident has been deemed ready for discharge.

(b) The resident’s behavior places the health or safety of the resident or others in jeopardy and undue delay in moving the resident increases the risk of harm.

(12) PROCESS FOR ISSUING AN INVOLUNTARY LESS THAN 30-DAY MOVE-OUT NOTICE. A facility may not issue a move-out notice before first submitting written documentation described in (13) of this rule to the Department and then receiving written response from the Department stating the written documentation submitted by the facility is in compliance with these rules.

(13) Prior to providing notice to the resident or the resident’s legal representative, the facility must provide to the Department the following written information concerning the proposed less than 30-day move-out:

(a) A copy of the proposed Less Than 30-Day Move-out and Hearing Notice form (form APD 0568 and form MSC 0443), which includes a written explanation of the reason(s) for the requested move out.

(b) The two (2) most recent service plans, showing service plan modification, if possible.

(c) Appropriate documentation that demonstrates the efforts taken to address all service needs of the resident, including providing intermittent direct nursing services or obtaining home health, hospice, or a third-party referral, as required by rule.

(d) Documentation demonstrating compliance with 411-054-0070(1) and 411-054-0030(2)(b).

(e) Explanation of whether the facility has the ability to respond to 24-hour care needs and also assist residents to access health care services from outside vendors, as defined by 411-054-0045(1) and (2).

(f) Any and all additional documentation that supports the facility’s reasons for proposing a Less Than 30-day Move-out notice.

(14) After receiving the facility’s documentation under (13) of this rule, the Department may request additional documentation from the facility concerning the proposed less than 30-day move-out, as deemed necessary by the Department. Such requested documentation may include, but is not limited to:

(a) Documentation of attempts to resolve the reason for the requested move-out such as related progress notes, relevant Medication Administration Record(s), evaluations, clinical assessments, physician notes, and other documentation demonstrating the facility has attempted to staff resident’s temporary or intermittent needs, as required by OAR 411-054-0045(1)(f)(F).

(b) Documentation that demonstrates the proposed move-out is consistent with the facility’s:

(A) Uniform Disclosure Statement, as required by OAR 411-054-0026(1).

(B) Residency Agreement, as required by OAR 411-054-0026(2).

(c) Names and contact information concerning additional parties or witnesses, as appropriate, to allow the Department to obtain additional statements or evidence regarding the reason for the move.

(15) After receiving all information required under (13) and requested under (14) of this rule, the Department will have two business days to review the involuntary move-out notice and any related documentation and provide the facility with written notice indicating whether or not the Department has determined the facility has provided documentation in compliance with these rules. If the Department determines sufficient documentation has not been provided, the Department will deny the move-out notice. A denial does not prohibit a facility from submitting or resubmitting a move-out notice that satisfies the criteria contained in (13) of this rule.

(16) The Department will provide written notice to the facility with a determination regarding the proposed move-out. If the Department determines regulatory criteria were not met, the facility may not issue the move-out notice.

(17) The facility may issue the notice if the Department has determined regulatory criteria has been met; the facility must submit the final version of form APD 0568 and form MSC 0443 to the Department, the resident, the resident's legal representative, the resident’s case manager, and the Office of the Long-Term Care Ombudsman.

(a) The Less Than 30-Day Move-Out and Hearing Notice (form APD 0568) must include notice of both the move-out and the rights to request a hearing (form MSC 0443). The completed form must contain both notices and be delivered to all required parties.

(b) The facility must provide as much notice to the resident as possible but must always provide at least 24 hours.

(c) The facility must email a copy of the Less Than 30-Day Move-Out and Hearing Notice form to the Department and to the Office of the Long-Term Care Ombudsman on the same day the notice is delivered to the resident or the resident's legal representative.

(d) The facility is responsible for providing a request for hearing from the resident or the resident’s legal representative, to the Department, within 24 hours of receiving it.

(18) Administrative hearings requested under (17) will be conducted according to (19) of this rule.

(19) INFORMAL CONFERENCE AND ADMINISTRATIVE HEARING. Except when a facility has had its license revoked, not renewed, voluntarily surrendered, or terminates its Medicaid contract, a resident who receives an involuntary move-out notice is entitled to an administrative hearing, provided the resident or resident's designee requests an administrative hearing in a timely manner.

(a) A resident who receives a Move-Out and Hearing Notice can request a formal administrative hearing:

(A) Residents have the following deadlines for requesting an administrative hearing after receipt of the notice:

(i) Within ten (10) business days, for a 30-day notice.

(ii) Within five (5) business days, for a less than 30-day notice.

(B) If a resident wants to preserve the right to an administrative hearing, the resident, the resident’s legal representative, or the Long Term Care Ombudsman may check the appropriate box on the Move-Out and Hearing Notice (form APD 0567 and form MSC 0443), and return the notice to the facility. Residents may also exercise their administrative hearing rights by informing the facility, verbally or in writing, of the request for an administrative hearing.

(C) If the resident or resident’s legal representative informs the facility of the request for a hearing, the facility must immediately notify the Department.

(D) In cases involving a less than 30-day notice or where the resident is incapacitated and does not have a legal representative, the Office of the Long-Term Care Ombudsman is allowed to provide notice to the Department on behalf of the resident, requesting an administrative hearing.

(E) The resident, resident’s legal representative, the Long Term Care Ombudsman, or the facility may request the Department facilitate an informal conference before the administrative hearing, to discuss the move-out.

(F) The Department may extend the time allowed requesting an informal conference or administrative hearing if the Department determines that good cause exists for failure to make a timely request.

(G) The Department shall immediately notify the Office of Administrative Hearings of the request for a formal administrative hearing and, for a less than 30-day move-out, shall request an expedited hearing be held within 5 business days.

(H) The Department may decide to hold an informal conference to resolve the matter without a formal administrative hearing. The Department shall notify all appropriate parties of the informal conference and shall facilitate the conference.

(I) If the Department decides to hold an informal conference, the conference shall be scheduled to be held:

(i) Within ten (10) business days of the Department receiving the request for hearing, for a 30 day move-out.

(ii) Within four (4) business days of the Department receiving the request for hearing, for a less than 30-day move-out.

(J) No formal administrative hearing shall be held if the resident is satisfied with the outcome of the informal conference.

(b) The resident who has received a Less Than 30-Day Move-Out Notice will be allowed to continue to reside in the facility until the hearing process is completed unless substantial evidence is provided by the facility to the Department documenting that the change of behavior or medical condition of the resident creates a serious and immediate threat to the resident, other residents, or staff and all reasonable alternatives to move-out (consistent with the orders of the attending physician or primary care provider) have been attempted and documented in the resident’s medical record.

(A) When a hearing has been requested, the Department shall request the Office of Administrative Hearings hold an expedited administrative hearing within five (5) business days.

(B) When a hearing has been requested, but the resident has been moved out of the facility, the facility must hold the resident's room, without charge for room and board or services, pending resolution of the administrative hearing. The facility may not rent the resident's unit pending resolution of the administrative hearing.

(20) A resident who was admitted January 1, 2006 or later may be moved without advance notice if all of the following are met:

(a) The facility was not notified before admission that the resident is on probation, parole, or post-prison supervision after being convicted of a sex crime.

(b) The facility learns the resident is on probation, parole, or post-prison supervision after being convicted of a sex crime.

(c) The resident presents a current risk of harm to another resident, staff, or visitor in the facility, as evidenced by:

(A) Current or recent sexual inappropriateness, aggressive behavior of a sexual nature, or verbal threats of a sexual nature; or

(B) Current communication from the State Board of Parole and Post-Prison Supervision, Department of Corrections, or community corrections agency parole or probation officer that the individual's Static 99 score or other assessment indicates a probable sexual re-offense risk to others in the facility.

(d) Before the move, the facility must contact the Department's central office in Salem by telephone and review the criteria in sections (11), (12) and (13) of this rule. The Department shall respond within one working day of contact by the facility. The Department of Corrections parole or probation officer must be included in the review, if available. The Department shall advise the facility if rule criteria for immediate move-out are not met. DHS shall assist in locating placement options.

(e) A written move-out notice must be completed on form SDS 0568A. The form must be filled out in its entirety and a copy of the notice delivered in person, to the resident, or the resident's legal representative, if applicable. Where a person lacks capacity and there is no legal representative, a copy of the notice to move-out shall be immediately faxed or emailed to the State Long Term Care Ombudsman.

(f) Before the move, the facility shall orally review the notice and right to object with the resident or legal representative and determine if a hearing is requested. A request for hearing does not delay the involuntary move-out. The facility shall immediately telephone the Department's central office in Salem when a hearing is requested. The hearing shall be held within five business days of the resident's move. No informal conference shall be held before the hearing.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
APD 3-2025, minor correction filed 03/10/2025, effective 03/10/2025
APD 7-2021, amend filed 02/05/2021, effective 02/08/2021
APD 35-2020, temporary amend filed 08/14/2020, effective 08/14/2020 through 02/09/2021
APD 10-2016, f. 6-27-16, cert. ef. 6-28-16
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0085 Refunds and Financial Management

(1) RESIDENT DEATH. If a resident dies, the licensee may not require payment for more than 15 days, or the time specified in the admission agreement, whichever is less, after the date of the resident’s death.

(2) RESIDENT UNABLE TO RETURN. If a resident must leave the facility for medical reasons and the resident or the resident's representative indicates the intent not to return, the facility may not charge the resident for more than 15 days after the date notification is received from the resident or the resident's representative, or the time specified in the admission agreement, whichever is less.

(a) If the resident’s personal belongings are not removed from the facility within the 15-day timeframe, the facility may charge the resident as specified in the admission agreement. However, the facility may not charge for more than 30 days after receiving notification that the resident is unable to return.

(b) A reasonable storage fee may be charged for storage of the resident’s belongings beyond 30 days if the admission agreement includes fees for storage.

(3) SUBSTANTIATED ABUSE. If a resident dies or leaves a facility due to substantiated neglect, substantiated abuse, or due to conditions of imminent danger of life, health, or safety, as substantiated by the Department, the facility may not charge the resident beyond the resident's last day in the facility.

(4) INVOLUNTARY MOVE-OUT. If the facility gives written notice for the resident to leave, the facility waives the right to charge for services or room and board beyond the date of the resident’s departure. If applicable, the facility may pursue past due charges that the resident incurred prior to move-out.

(5) REFUNDS. The provider must refund any advance payments within 30 days after the resident leaves the facility.

(6) RATE INCREASES. The facility must provide 30 days written notice prior to any facility-wide increases, additions, or changes.

(7) SERVICE RATE INCREASES. The facility must provide immediate written notice to the resident at the time the facility determines the resident’s service rates shall increase due to increased service provision, as negotiated in the resident's service plan.

(8) MEDICAID PERSONAL INCIDENTAL FUNDS. The facility must have written policies, procedures, and accounting records for handling residents’ personal incidental funds that are managed in the resident’s own best interest.

(a) The resident may manage their personal financial resources, or may authorize another individual or the facility to manage their personal incidental funds.

(b) The facility must hold, manage, and account for the personal incidental funds of the resident when requested in writing by the resident.

(c) Records must include the Resident Account Record (SDS 713) or other comparable expenditure form if the facility manages or handles a resident’s personal incidental funds.

(A) The resident account record must show in detail, with supporting documentation, all monies received on behalf of the resident and the disposition of all funds received.

(B) Individuals shopping for residents must provide a list showing description and price of items purchased, along with payment receipts for these items.

(d) Resident personal incidental fund accounts may not be co-mingled with facility funds.

(e) Residents must have reasonable access to their personal incidental funds. At minimum, requests to access personal incidental funds must be acted upon by the facility within one day of the request, excluding weekends and holidays.

(f) Upon the death of a Medicaid resident with no known surviving spouse, personal incidental funds held by the facility for the resident must be forwarded within 10 business days of the death of the resident to the Department of Human Services, Estate Administration Unit, P.O. Box 14021, Salem OR 97309.

(g) The facility must maintain documentation of the action taken and the amount of personal incidental funds conveyed.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
SPD 11-2012, f. 8-31-12, cert. ef. 9-1-12
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0090 Fire and Life Safety

(1) FIRE DRILLS. All fire drills shall be conducted according to the Oregon Fire Code (OFC).

(a) Unannounced fire drills must be conducted and recorded every other month at different times of the day, evening, and night shifts.

(b) Fire and life safety instruction to staff must be provided on alternate months.

(c) The Fire Authority may develop an alternative fire drill plan for the facility. Any such plan must be submitted to the Department.

(d) A written fire drill record must be kept to document fire drills that include:

(A) Date and time of day;

(B) Location of simulated fire origin;

(D) Problems encountered and comments relating to residents who resisted or failed to participate in the drills;

(E) Evacuation time period needed;

(F) Staff members on duty and participating; and

(G) Number of occupants evacuated.

(e) Alternate exit routes must be used during fire drills to react to varying potential fire origin points.

(f) The evacuation capability of the residents and staff is a function of both the ability of the residents to evacuate and the assistance provided by the staff.

(g) Staff must provide fire evacuation assistance to residents from the building to a designated point of safety as determined by the Fire Authority having jurisdiction. Points of safety may include, outside the building, through a horizontal exit, or other areas as determined by the Fire Authority having jurisdiction.

(h) The fire alarm system shall be activated during each fire drill, unless otherwise directed by the Fire Authority having jurisdiction.

(2) If the facility is unable to meet the applicable evacuation level, the facility must make an immediate effort to make changes to ensure the evacuation standard is met. Changes must include, but not be limited to:

(a) Increasing staff levels,

(b) Changing staff assignments,

(d) Arranging for special equipment.

After making necessary changes, if the facility fails to meet the applicable evacuation level, the facility must issue an involuntary move-out notice to the residents in accordance with OAR 411-054-0080.

(3) Fire detection and protection equipment, including visual signals with alarms for hearing impaired residents, must be maintained in accordance with the OFC and the manufacturer’s instructions.

(a) The facility must provide and maintain one or more 2A:10B:C fire extinguishers on each floor in accordance with the OFC.

(b) Flammable and combustible liquids and hazardous materials must be safely and properly stored in original containers in accordance with the fire authority having jurisdiction.

(4) SAFETY PROGRAM. A safety program must be developed and implemented to avoid hazards to residents, such as dangerous substances, sharp objects, unprotected electrical outlets, slippery floors or stairs, exposed heating devices, broken glass, water temperatures, and fire prevention.

(5) TRAINING FOR RESIDENTS. Residents must be instructed about the facility's fire and life safety procedures per OFC.

(a) Each resident must be instructed within 24 hours of admission and re-instructed, at least annually, in general safety procedures, evacuation methods, responsibilities during fire drills, and designated meeting places outside the building or within the fire safe area in the event of an actual fire. This requirement does not apply to residents whose mental capability does not allow for following such instruction.

(b) A written record of fire safety training, including content of the training sessions and the residents attending, must be kept.

(6) UNOBSTRUCTED EGRESS. Stairways, halls, doorways, passageways, and exits from rooms and the building must be unobstructed.

(7) FIRST AID SUPPLIES. First aid supplies must be provided, properly labeled, and readily accessible.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
APD 1-2015, f. 1-14-15, cert. ef. 1-15-15
SPD 13-2009, f. 9-30-09, cert. ef. 10-1-09
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0093 Emergency and Disaster Planning

An emergency preparedness plan is a written procedure that identifies a facility's response to an emergency or disaster for the purpose of minimizing loss of life, mitigating trauma, and to the extent possible, maintaining services for residents, and preventing or reducing property loss.

(1) The facility must prepare and maintain a written emergency preparedness plan in accordance with the OFC.

(2) The emergency preparedness plan must:

(a) Include analysis and response to potential emergency hazards, including, but not limited to:

(A) Evacuation of a facility;

(B) Fire, smoke, bomb threat, and explosion;

(D) Structural damage;

(E) Hurricane, tornado, tsunami, volcanic eruption, flood, and earthquake;

(F) Chemical spill or leak; and

(G) Pandemic.

(b) Address the medical needs of the residents, including:

(A) Access to medical records necessary to provide services and treatment; and

(B) Access to pharmaceuticals, medical supplies, and equipment during and after an evacuation.

(c) Include provisions and supplies sufficient to shelter in place for a minimum of three days without electricity, running water, or replacement staff.

(3) The facility must notify the Department, the local AAA office, or designee, of the facility's status in the event of an emergency that requires evacuation and during any emergent situation when requested.

(4) The facility must conduct a drill of the emergency preparedness plan at least twice a year in accordance with the OFC and other applicable state and local codes as required. One of the practice drills may consist of a walk-through of the duties or a discussion exercise with a hypothetical event, commonly known as a tabletop exercise. These simulated drills may not take the place of the required fire drills.

(5) The facility must annually review or update the emergency preparedness plan as required by the OFC and the emergency preparedness plan must be available on-site for review upon request.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455, 443.991 & OL 2007 Ch. 205
APD 1-2015, f. 1-14-15, cert. ef. 1-15-15
SPD 11-2012, f. 8-31-12, cert. ef. 9-1-12
SPD 13-2009, f. 9-30-09, cert. ef. 10-1-09
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0100 Temporary rule language in effect until 02/05/2027. Exceptions

(1) The facility seeking an exception to these rules must submit a completed Application for Exception form (SDS 0563) to the Department, explaining the reasons for the exception request.

(2) The Department may grant an exception to these rules. An exception will not be granted if the Department determines, at its discretion, that granting the exception is detrimental to the residents.

(3) The Department may not grant a facility’s request for an exception to the requirements of ORS 443.400 to 443.455 or any other statutory licensing requirements, unless expressly authorized by statute to grant an exception or to temporarily modify a licensing requirement due to a declaration of a state of emergency.

(4) No exception will be granted from a regulation or provision of these rules pertaining to the monitoring of the facility, resident rights, and inspection of the public files.

(5) Exceptions granted by the Department must be in writing on form SDS 0563 and may be reviewed periodically. Exceptions may be rescinded at any time if statute or regulations change or the Department determines that continuance of the exception has a potential adverse impact on resident wellbeing, privacy, or dignity. The Department will send written notice to the facility with reason(s) why an exception is denied or rescinded.

(6) If the Department intends to grant an exception to a licensing requirement, the Department must notify the office of the Long-Term Care Ombudsman of the exception request and the Department’s intent to grant the request no fewer than seven days prior to the effective date.

(7) For assisted living facilities: an individual exception is required for each resident who chooses to share a unit with someone other than his/her spouse or partner.

(8) If applicable, exceptions will not be granted by the Department without prior consultation with other agencies involved.

(9) The licensee must disclose current Department granted exceptions to prospective licensee, when applicable.

(10) Exceptions are specific to the licensee and individuals at the time the exception is granted and do not transfer to prospective licensee or individuals. Prospective licensees may apply for an exception to these rules. The Department will consider each request and make a decision based on the prospective licensee’s compliance history, experience, and alternative plan to meet the intent of the rule.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
APD 21-2026, temporary amend filed 08/03/2026, effective 08/10/2026 through 02/05/2027
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0105 Temporary rule language in effect until 02/05/2027. Inspections and Investigations

(1) The facility must cooperate with Department personnel in inspections, complaint investigations, planning for resident care, application procedures, and other necessary activities.

(a) Records must be made available to the Department upon request. Department personnel must have access to all resident and facility records and may conduct private interviews with residents. Failure to comply with this requirement shall result in regulatory action.

(b) The Long Term Care Ombudsman must have access to all resident and facility records that relate to an investigation. Certified Ombudsman volunteers may have access to facility records that relate to an investigation and access to resident records with written permission from the resident or guardian.

(c) The State Fire Marshal or authorized representative must be permitted access to the facility and records pertinent to resident evacuation and fire safety.

(d) The Oregon Health Authority and appropriate Local Public Health Authority must be permitted access to the facility and records pertinent to investigation of illness or outbreak, as authorized by law.

(2) The facility must not interfere with a good faith disclosure of information by an employee, volunteer concerning abuse or other action affecting a resident’s safety or welfare, as described in OAR 411-054-0028(4).

(3) The Department must visit and inspect every licensed facility to determine whether the facility is maintained and operated in accordance with these rules.

(a) The Department must inspect every facility at a minimum:

(A) No less than 90 days and no more than 120 days after an initial license is issued or after a change in ownership of a facility.

(B) Upon receipt of a license renewal application and fee.

(C) For each year during which a facility does not have a full survey, the Department must conduct an in-person inspection of the kitchen and other areas where food is prepared for residents.

(b) Inspections may be conducted at other times as determined by the Department.

(c) Facilities not in compliance with these rules must submit a plan of correction that satisfies the Department within 10 business days of receipt of the inspection report.

(d) Facilities must correct deficiencies within timeframes outlined in the accepted plan of correction.

(e) Failure to be in substantial compliance upon reinspection may result in regulatory action to compel compliance.

(f) Achieving substantial compliance is ultimately the facility’s responsibility, whether or not a plan of correction was followed.

(g) The Department may impose sanctions for failure to comply with these rules.

(4) Department staff may consult with and advise the facility administrator concerning methods of care, records, housing, equipment, and other areas of operation.

(5) A copy of the most current inspection report and any conditions placed upon the license must be posted with the facility's license in public view near the main entrance to the facility.

(6) ABUSE. Upon completion of substantiation of abuse, the Division shall immediately provide written notification to the facility.

(a) WRITTEN NOTICE. The written notice 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 inconclusive;

(D) For each substantiated allegation, state whether the violation was abuse or another rule violation;

(E) Include a copy of the complaint investigation report;

(F) State that the complainant, any person reported to have committed wrongdoing, and the facility has 15 days to provide additional or different information; and

(G) For each allegation, explain the applicable appeal rights available.

(b) APPORTIONMENT. If the Department determines there is substantiated abuse, the Department may determine that the facility, an individual, or both the facility and an individual are responsible for the abuse. In determining responsibility, the Department shall consider intent, knowledge and ability to control, and adherence to professional standards as applicable.

(A) FACILITY. Examples of when the Department shall determine the facility is responsible for the abuse include but are not limited to:

(i) Failure to provide minimum staffing in accordance with these rules without reasonable effort to correct;

(ii) Failure to check for or act upon relevant information available from a licensing board;

(iii) Failure to act upon information from any source regarding a possible history of abuse by any staff or prospective staff;

(iv) Failure to adequately provide oversight, training, or orientation of staff;

(v) Failure to allow sufficient time to accomplish assigned tasks;

(vi) Failure to provide adequate services;

(vii) Failure to provide adequate equipment or supplies; or

(viii) Failure to follow orders for treatment or medication.

(B) INDIVIDUAL. Examples of when the Department shall determine the individual is responsible for the abuse include but are not limited to:

(i) Intentional acts against a resident including assault, rape, kidnapping, murder, sexual abuse, or verbal or mental abuse;

(ii) Acts contradictory to clear instructions from the facility, unless the act is determined by the Department to be caused by the facility as identified in paragraph (A) above;

(iii) Callous disregard for resident rights or safety; or

(iv) Intentional acts against a resident's property (e.g., theft, misuse of funds).

(C) An individual may 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.

(A) NON-NURSING ASSISTANT. The written notice in cases of substantiated abuse by a person other than a nursing assistant shall explain the person's right to:

(i) File a petition for reconsideration pursuant to OAR 137-004-0080; and

(ii) Petition for judicial review pursuant to ORS 183.484.

(B) NURSING ASSISTANT. The written notice in cases of substantiated abuse by a nursing assistant shall explain:

(i) The Department's intent to enter the finding of abuse into the Nursing Assistant Registry following the procedure set out in OAR 411-089-0140; and

(ii) The nursing assistant's right to provide additional information and request a contested case hearing as provided in OAR 411-089-0140.

(d) DISTRIBUTION.

(A) The written notice shall be mailed to the facility, any person reported to have committed wrongdoing, the complainant (if known), and the Department or Type B AAA office; and

(B) A copy of the written notice shall be placed in the Department's facility complaint file.

(e) NOTIFICATION. Upon receipt of a notice of substantiated abuse finding for victims as defined in ORS 430.735, the facility must provide written notification to the individual substantiated for abuse, the residents of the facility, designated contact persons and the residents’ case manager and guardian, if applicable.

(7) LICENSING RULE VIOLATION. The Licensing Complaint Unit (LCU) must investigate allegations of licensing violations, other than abuse, that allege harm, potential for harm or insufficient number of direct care staff.

(a) The Department will complete timely investigations.

(A) LCU will initiate an on-site investigation within 24 hours or before the end of the next business day for complaints that allege a potential licensing violation which resulted in a resident’s death.

(B) Investigations of alleged licensing violations for harm, potential for harm or insufficient direct care staff will initiate an investigation without undue delay.

(b) A licensing complaint investigation is separate from and not a replacement for an adult protective services investigation as outlined in OAR 411-020. To make determinations, LCU will base findings on the following factors, including but not limited to:

(A) Obtain and review all available documents and records relevant to the allegation.

(B) Objective observations, if applicable to the investigation.

(C) Conduct interviews with all relevant witnesses who have been identified by any source as having personal knowledge relevant to the complaint, including but not limited to:

(i) Identified resident(s),

(ii) Facility staff,

(iii) Providers,

(iv) Complainant, or

(v) Long Term Care Ombudsman, including volunteers.

(D) Interviews will be conducted in private, unless requested by the individual to not be conducted privately.

(E) Department will assess whether the facility has qualified awake direct care staff in sufficient numbers to consistently meet the scheduled and unscheduled needs of all residents 24 hours a day when:

(i) A complaint involves an allegation of insufficient staffing,

(ii) A complaint qualifies for an Acuity-Based Staffing Tool review as outlined in OAR 411-054-0037, or

(iii) An LCU investigation determines that insufficient direct care staff may have contributed to the alleged licensing violation.

(A) Conducting an unannounced site visit to the facility.

(B) Upon complainant request, the complainant, a designee of the complainant, or both, shall be allowed to accompany LCU to the facility as outlined in ORS 441.690.

(C) Notifying the Department’s corrective action team if a situation requires the Department to provide an immediate regulatory response.

(D) Meeting with facility administration or designee to review preliminary investigation findings.

(E) Based on evidence gathered during the investigation, LCU must make a determination as to whether a licensing violation occurred. LCU will use the following determinations:

(i) Substantiated

(ii) Unsubstantiated

(iii) Inconclusive.

(d) The Department will complete complaint investigations within 90 days of receiving the initial complaint.

(e) Investigation Report. Following completion of the licensing complaint investigation, the investigator must write a report supporting the findings. The report must include, at a minimum:

(A) The investigator’s observations.

(B) A review of documents and records.

(D) A statement of the factual basis for the findings.

(E) For reviews regarding insufficient direct care staff, a statement containing the basis for the findings, including the investigator’s assessment of staffing levels and whether the facility has qualified awake direct care staff in sufficient numbers to consistently meet the scheduled and unscheduled needs of each resident 24 hours a day.

(f) DUE PROCESS RIGHTS. The written notice must advise the facility of their due process rights as appropriate, including a statement that the complainant and the facility have 10 calendar days from the mail date to provide additional evidence.

(g) DISTRIBUTION. If a complaint investigation under these rules results in a substantiated finding of a rule violation, the Department shall:

(A) Immediately notify the facility and the Long-Term Care Ombudsman in writing of the Department’s findings and any license condition or other sanction imposed by the Department as a result of the violation; and

(B) Provide the facility and the Long-Term Care Ombudsman with a summary report of the department’s findings. The summary may not include any identifiable information about the resident, except that the report may not be redacted in a way that fails to disclose that death or injury occurred. The summary report must, at a minimum:

(i) Be written in clear, concise language that is readily comprehensible by the average person; and

(ii) Include the nature of the complaint, the type of violation found by the investigator in the course of the investigation, the nature of the harm experienced by any resident as a result of the violation, whether the violation led to death or physical injury of a resident or staff member and any license condition or other sanction imposed on the facility as a result of the violation.

(h) A copy of the findings must be retained in the Department's facility complaint record.

(8) IMMEDIATE JEOPARDY

(a) When a situation of immediate jeopardy (IJ) has been determined during a licensing complaint investigation or inspection, a written plan of correction must be submitted and accepted while the Department is still at the facility.

(b) Before the Department may make a preliminary finding of immediate jeopardy, the Department must, at a minimum, provide an opportunity for the facility to provide initial information or evidence to the Department during an investigation regarding the allegation in the complaint.

History

Statutory/Other Authority: ORS 410.070, 443.417 & 443.450
Statutes/Other Implemented: ORS 443.400-443.455 & 443.991
APD 21-2026, temporary amend filed 08/03/2026, effective 08/10/2026 through 02/05/2027
APD 55-2021, amend filed 12/09/2021, effective 12/15/2021
APD 23-2021, temporary amend filed 06/21/2021, effective 06/23/2021 through 12/19/2021
APD 20-2021, amend filed 06/08/2021, effective 06/09/2021
APD 51-2020, temporary amend filed 12/18/2020, effective 01/01/2021 through 06/29/2021
APD 25-2017, amend filed 10/26/2017, effective 10/28/2017
APD 11-2017(Temp), f. 4-21-17, cert. ef. 5-1-17 thru 10-27-17
SPD 10-2010, f. 6-30-10, cert. ef. 7-1-10
SPD 23-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10
SPD 16-2008, f. 12-31-08, cert. ef. 1-1-09
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0106 Regulatory Framework

(1) PURPOSE. The goal of the regulatory framework is to provide transparency, accuracy, and equity related to regulatory actions taken by the Department in response to facilities’ lack of substantial compliance with Oregon Administrative Rules. The framework should include application of preventative, positive, and progressively more restrictive measures taken by the Department in response to facilities’ lack of substantial compliance with Oregon Administrative Rules. Whenever possible and appropriate, the framework shall be based on a progressive method of regulation based on scope and severity, which includes positive reinforcement, as well as sanctions and penalties.

(2) FOCUS. The framework will address measures related to the scope and severity of noncompliance, including but not limited to:

(a) Whether the facility has qualified awake direct care staff in consistent numbers to consistently meet the scheduled and unscheduled needs of each resident 24 hours a day; and

(b) The impact of any compliance deficiencies on the rights, health, welfare and safety of the residents.

(3) PROCESS. The framework will provide information on processes related to the Department’s:

(a) Accurate and equitable assessment of substantial compliance based on regulatory requirements.

(b) Employment of progressive and positive action to promote and achieve facility substantial compliance.

(d) Administration of Enhanced Oversight Program to focus compliance activities on facilities that consistently fail to achieve substantial compliance.

(4) TECHNIQUES. Regulatory compliance will be promoted through the use of progressive compliance techniques, as appropriate, including, but not limited to:

(a) Proactive communication.

(b) Technical support to facilities.

(d) Corrective action involving civil penalties.

(e) Imposition of sanctions, including, but not limited to conditions on a provider’s license.

(f) Suspension, non-renewal or revocation of license.

(5) ENHANCED OVERSIGHT AND SUPERVISION PROGRAM.

(a) Facilities that consistently demonstrate a lack of substantial compliance with the requirements of rules adopted to regulate residential care facilities or assisted living facilities or perform substantially below statewide averages on quality metrics will be considered for the Enhanced Oversight and Supervision Program. “Consistently” is defined as regularly and typically for purposes of this rule.

(b) The Department shall take one or more of the following actions, the Department deems necessary, to improve the performance of a facility:

(A) Increase the frequency of surveys of the facility.

(B) Conduct surveys that focus on areas of consistent non-compliance as identified by the Department.

(A) Three years, if the facility has shown substantial compliance according to the Department; or

(B) One year, if the facility submits a written assertion of substantial compliance and the Department determines the facility no longer meets the criteria of the program.

(d) The Department shall publish notice on the Department’s licensing website of any facility enrolled in the Enhanced Oversight and Supervision program.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
APD 55-2021, amend filed 12/09/2021, effective 12/15/2021
APD 19-2018, adopt filed 06/29/2018, effective 06/29/2018

Or. Admin. R. 411-054-0110 Temporary rule language in effect until 02/05/2027. Conditions

(1) The Department may impose a condition on the license of a residential care or assisted living facility in response to a substantiated finding of rule violation, including, but not limited to a substantiated finding of abuse.

(2) IMMEDIATE JEOPARDY.

(a) The Department must impose a condition in response to:

(A) A preliminary finding of immediate jeopardy that is reasonably likely to result in a substantiated finding; or

(B) A substantiated finding of immediate jeopardy.

(b) For a license condition that is imposed in response to a preliminary finding or substantiated finding of immediate jeopardy, the order must also include a summary of the evidence demonstrating that:

(A) The facility has failed to meet one or more health, safety or quality rules or regulations;

(B) The result of the facility’s noncompliance described in paragraph (2)(c)(A) of this rule, serious injury, serious harm, serious impairment or death has occurred or is likely to occur if the noncompliance is not corrected;

(C) The facility has not demonstrated that the noncompliance described in paragraph (2)(c)(A) of this rule has been corrected; and

(D) At the time the license condition is imposed, there is a current need for immediate corrective action by the facility to prevent serious injury, serious harm, serious impairment or death from occurring or recurring.

(c) If the Department imposes a license condition based on a preliminary finding of immediate jeopardy and the preliminary finding is not substantiated within 30 days after the imposition of the license condition, the Department must immediately notify the facility and remove the license condition.

(3) TERMS OF CONDITION. Conditions that may be imposed on a licensee include, but are not limited to:

(a) Restricting the total number of residents;

(b) Restricting the number and impairment level of residents based upon the capacity of the licensee and staff to meet the health and safety needs of all residents;

(d) Requiring additional training for staff;

(e) Requiring additional documentation; or

(f) Restriction of admissions, if the Department makes a finding of immediate jeopardy that is likely to present an immediate jeopardy to future residents upon admission.

(4) IMPENDING IMPOSITION OF LICENSE CONDITION.

(a) Except where the threat to residents is so imminent that the Department determines it is not safe or practical to give the facility advance notice, the Department shall provide the licensee with a Notice of Impending Imposition of License Condition (Notice) at least 48 hours prior to issuing an Order Imposing License Condition (Order). The Notice 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 represented by facility staff to be in charge at the facility. When the Notice is delivered orally, the Department must subsequently provide written notice to the licensee by registered or certified mail. The Notice must:

(A) Describe the acts or omissions of the licensee that support the imposition of the license condition and the circumstances that led to the substantiated finding of a rule violation, including, but not limited to, a:

(i) Substantiated finding of abuse.

(ii) Finding of immediate jeopardy.

(B) Describe why the acts or omissions and the circumstances create a situation for which the imposition of a condition is warranted.

(D) Provide a brief statement describing how the license condition is designed to remediate the circumstances that lead to the condition.

(E) Provide a brief statement of the requirements for withdrawal of the condition.

(F) Identify a person at the Department whom the licensee may contact and who is authorized to enter the Order or to make recommendations regarding issuance of the Order.

(G) Specify the date and time an informal conference will be held, if requested by the licensee.

(H) Specify the date and time the Order will take effect.

(b) If the threat to residents of a facility is so imminent the Department determines it is not safe or practical to give the facility advance notice of a license condition, the Department must provide the notice required under section (5)(a) within 48 hours after issuing an order imposing the license condition.

(5) INFORMAL CONFERENCE. If an informal conference is requested, the conference will 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 Notice. If a Notice of Impending License Condition is issued, the licensee must be provided with an opportunity for an informal conference to object to the Department's proposed action before the license condition is scheduled to take effect. The Order Imposing License Condition may be issued at any time after the informal conference.

(b) Without Notice. If an Order Imposing License Condition is issued without a prior Notice of Impending License Condition, the licensee may request an immediate informal conference to object to the Department's action.

(6) ORDER IMPOSING LICENSE CONDITION.

(a) When an Order Imposing License Condition (Order) is issued, the Department must serve the Order to the licensee either personally or by registered or certified mail.

(b) The Order must include the following statements:

(A) The authority under which the condition is being issued.

(B) A reference to the specific sections of the statute and administrative rules involved.

(D) A short and plain statement of the matters asserted or charged.

(E) The specific terms of the license condition.

(F) A specific description of how the scope and manner of the license condition is designed to remediate the findings that lead to the license condition.

(G) A specific description of the requirements for withdrawal of the license condition.

(H) Statement of the licensee's right to request a hearing.

(I) 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 must notify the Department.

(J) That, if a request for hearing is not received by the Department within 21 calendar days from the date of the Order, the licensee has waived the right to a hearing under ORS chapter 183.

(K) Findings of specific acts or omissions of the licensee that are grounds for the license condition, and the reasons the acts or omissions create a situation for which the imposition of a license condition is warranted.

(L) That the Department may combine the hearing on the Order with any other Department proceeding affecting the licensee. The procedures for the combined proceeding must be those applicable to the other proceedings affecting the license.

(c) For Orders in response to a preliminary finding or substantiated finding of immediate jeopardy, the Order must also include a summary of the evidence demonstrating that:

(A) The facility has failed to meet one or more health, safety or quality rules or regulations;

(B) The result of the facility’s noncompliance described in paragraph (6)(c)(A) of this rule, serious injury, serious harm, serious impairment or death has occurred or is likely to occur if the noncompliance is not corrected;

(C) The facility has not demonstrated that the noncompliance described in paragraph (6)(c)(A) of this rule has been corrected; and

(D) At the time the Order is imposed, there is a current need for immediate corrective action by the facility to prevent serious injury, serious harm, serious impairment or death from occurring or recurring.

(7) A licensee who has been ordered to restrict admissions to a facility must immediately post a "Restriction of Admissions Notice" that is provided by the Department, on both the inside and outside faces of each door of the facility through which any person enters or exits a facility. The notices must not be removed, altered or obscured until the Department has lifted the restriction or the restriction is automatically removed pursuant to subsection (9)(d) of this rule.

(8) HEARING.

(a) Right to Hearing. If the Department imposes an Order, the licensee is entitled to a contested case hearing pursuant to ORS chapter 183.

(b) Hearing Request. The Department must receive the licensee's request for a hearing within 21 calendar days of the date of Order. If a request for hearing is not received by the Department within 21 calendar days of the date of the Order, the licensee will have waived the right to a hearing under ORS chapter 183.

(d) Date of Hearing. When a timely request for hearing is received, the hearing shall be held as soon as practical.

(e) Consolidation. If a request for hearing is received on an Order, and a subsequent Order is issued, the Department may consolidate the Orders into a single contested case hearing.

(9) REQUEST FOR REINSPECTION OR REEVALUATION.

(a) Facility assertion of substantial compliance on an Order Imposing License Condition (Order).

(A) For an Order based on Department findings:

(i) Within 15 business days of receiving the facility’s written assertion of substantial compliance and request for reinspection, the Department must reinspect or reevaluate the facility to determine if the facility has achieved substantial compliance.

(ii) Notify the facility by telephone or electronic means of the findings of the reinspection or reevaluation within five business days after completion of the reinspection or reevaluation.

(iii) Issue a written report to the facility within 30 business days after the reinspection or reevaluation notifying the facility of the Department’s determinations.

(B) For an Order based on Department findings from a licensing complaint investigation that includes a restriction of admissions:

(i) Within five calendar days of receiving the facility’s written assertion of substantial compliance and request for reinspection, the Department must reinspect or reevaluate the facility to determine if the facility has achieved substantial compliance.

(ii) Notify the facility verbally or in writing of the findings of the reinspection or reevaluation.

(iii) The Department shall lift the restrictions of admissions requirement within 24 hours of the Department finding the facility is in substantial compliance.

(b) If the Department finds the facility has achieved substantial compliance and that systems are in place to ensure similar deficiencies do not reoccur, the Department shall withdraw the Order.

(c) If, after reinspection or reevaluation, the Department determines the violation continues to exist, the Department may not withdraw the Order and is not obligated to reinspect or reevaluate the facility again for at least 45 business days after the first reinspection or reevaluation.

(A) The Department shall provide the facility notice of the decision not to withdraw the Order in writing.

(B) The notice shall inform the facility of the right to a contested case hearing pursuant to ORS chapter 183.

(d) If the Department does not meet the requirements of this section, a license condition is automatically removed on the date the Department fails to meet the requirements of this section, unless the Director extends the applicable period for no more than 15 business days. The Director may not delegate the power to make a determination regarding an extension under this paragraph.

(e) Nothing in this section limits the Department’s authority to visit or inspect the facility at any time.

(10) EXCEPTIONS TO ORDER IMPOSING LICENSE CONDITION. When a restriction of admissions is in effect pursuant to an Order, the Department, in its sole discretion, may authorize the facility to admit new residents for whom the Department determines that alternate placement is not feasible.

(11) Conditions may be imposed for the duration of the licensure period (two years) or limited to some other shorter period of time. If the condition corresponds to the licensing period, the reasons for the condition will be considered at the time of renewal to determine if the conditions are still appropriate. The effective date and expiration date of the condition will be indicated on the attachment to the license.

History

Statutory/Other Authority: ORS 183, 410.070 & 443.450
Statutes/Other Implemented: ORS 183, 443.400 - 443.455 & 443.991
APD 21-2026, temporary amend filed 08/03/2026, effective 08/10/2026 through 02/05/2027
APD 69-2024, amend filed 12/20/2024, effective 12/24/2024
APD 29-2024, temporary amend filed 06/21/2024, effective 07/01/2024 through 12/27/2024
APD 55-2021, amend filed 12/09/2021, effective 12/15/2021
APD 19-2018, amend filed 06/29/2018, effective 06/29/2018
APD 35-2017, temporary amend filed 12/30/2017, effective 01/01/2018 through 06/29/2018
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0120 Temporary rule language in effect until 02/05/2027. Civil Penalties

(1) For purposes of imposing civil penalties, facilities licensed under ORS 443.400 to 443.455 and ORS 443.991 are considered to be long-term care facilities subject to ORS 441.705 to 441.745.

(2) For purposes of this rule:

(a) "Person" means a licensee under ORS 443.420 or a person who the Department finds shall be so licensed but does not include any employee of such licensee or person.

(b) "Resident rights" means that each resident must be assured the same civil and human rights accorded to other citizens as described in OAR 411-054-0027.

(c) "Monitoring" means when a residential care or assisted living facility is surveyed, inspected, or investigated by an employee or designee of the Department or an employee or designee of the State Fire Marshal.

(d) As used in this rule:

(A) "Harm" means a measurable negative impact to a resident’s physical, mental, financial, or emotional well-being.

(B) "Minor harm” means harm resulting in no more than temporary physical, mental or emotional discomfort or pain without loss of function, or in financial loss of less than $1,000.

(C) "Moderate harm” means harm resulting in temporary loss of physical, mental or emotional function, or in financial loss of $1,000 or more, but less than $5,000.

(D) "Serious harm” means harm resulting in long-term or permanent loss of physical, mental or emotional function, or in financial loss of $5,000 or more.

(E) “Financial loss” means loss of resident property or money as a result of financial exploitation, as defined in ORS 124.050. Financial loss does not include loss of resident property or money that results from action or inaction of an individual not employed or contracted with the facility, or that arises from the action or inaction of an individual employed or contracted with the facility if the action or inaction occurs while the individual is not performing employment or contractual duties.

(e) The Director shall assess the severity of a violation using the following criteria:

(A) Level 1 - is a violation that results in no actual harm or in potential for only minor harm.

(B) Level 2 - is a violation that results in minor harm or potential for moderate harm.

(D) Level 4 - is a violation that results in serious harm or death.

(f) The Director shall assess the scope of a violation using the following criteria:

(A) An isolated violation occurs when one or a very limited number of residents or employees are affected or a very limited area or number of locations within a facility are affected.

(B) A pattern violation occurs when more than a very limited number of residents or employees are affected, or the situation has occurred in more than a limited number of locations, but the locations are not dispersed throughout the facility.

(C) A widespread violation occurs when the problems causing the deficiency are pervasive and affect many locations throughout the facility or represent a systemic failure that affected, or has the potential to affect, a large portion or all of the residents or employees.

(3) Determining Civil Penalties.

(a) When the Director is considering imposition of a civil penalty under ORS 443.455(2)(a), ORS 441.710, or ORS 441.731 on a residential care or assisted living facility the Director shall comply with the requirements of this section.

(b) When imposing a civil penalty on a facility pursuant to this section, the Director shall consider:

(A) Any prior violations of laws or rules pertaining to the facility and, as a mitigating factor, whether violations were incurred under prior ownership or management of the facility.

(B) The financial benefits, if any, realized by the facility as a result of the violation.

(D) The severity and scope of the violation.

(4) Civil Penalty Amounts.

(a) The Director may impose civil penalties as follows, for a:

(A) Level 1 violation, the Director may not impose a civil penalty.

(B) Level 2 violation, the Director may impose a penalty in an amount no less than $250 per violation, not to exceed $500 per violation.

(C) Level 3 violation, the Director may impose a civil penalty in an amount no less than $500 per violation, not to exceed $1,500 per violation.

(D) Level 4 violation, the Director may impose a civil penalty in an amount no less than $1,500 per violation, not to exceed $2,500 per violation.

(E) Failure to report abuse of a resident to DHS as required by state law, the Director may impose a civil penalty in an amount of no more than $1,000 per violation.

(b) The penalties imposed under paragraph (a)(A) to (D) of this section may not exceed $20,000 in the aggregate for violations occurring in a single facility within any 90-day period.

(5) Additional Civil Penalties. The Department shall impose a civil penalty of not less than $2,500 and not more than $15,000 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 $40,000 for all violations occurring in a single facility within any 90-day period.

(a) To impose this civil penalty, the Department shall establish all of the following occurred:

(A) The abuse arose from deliberate, or other than accidental action or inaction.

(B) The conduct resulting in the abuse was likely to cause a negative outcome by a person with a duty of care toward a resident of a facility.

(b) For purposes of this civil penalty, the following definitions apply:

(A) "Negative Outcome" includes serious injury, rape, sexual abuse, or death.

(B) "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.

(C) "Rape" means rape in the first degree as defined in ORS 163.375, rape in the second degree as defined in ORS 163.365, and rape in the third degree as defined in ORS 163.355.

(D) "Sexual Abuse" means any form of sexual contact between an employee of a residential care facility or a person providing services in the facility and a resident of that facility, including, but not limited to:

(i) Sodomy.

(ii) Sexual coercion.

(iii) Taking sexually explicit photographs.

(iv) Sexual harassment.

(6) A notice of a civil penalty shall be sent by registered or certified mail and shall include:

(a) A reference to the specific sections of the statute, rule, standard, or order involved.

(b) A short and plain statement of the matters asserted or charged.

(d) A statement of the party's right to request a hearing.

(e) A description of specific remediation the facility must make in order to achieve substantial compliance.

(f) A statement specifying the amount of time for the elimination of the violation.

(A) The time specified shall not exceed 30 calendar days after the first notice of a violation; or

(B) In cases where the violation requires more than 30 days to correct, a reasonable time shall be specified in a plan of correction, as found acceptable by the Director.

(7) For a level 2 or level 3 violation, the Department shall hold in abeyance the penalty proposed for the period of time specified in the Notice pursuant to subsection (6)(f) above.

(8) Hearing Requests. The person to whom the notice is addressed shall have 10 calendar days from the date specified in the Notice pursuant to subsection (6)(f) of this rule to make written application for a hearing before the Department.

(9) All hearings shall be conducted pursuant to the applicable provisions of ORS chapter 183.

(10) If the person notified fails to request a hearing within the time specified in the notice, an order may be entered by the Department assessing a civil penalty.

(11) If, after a hearing, the Department prevails, an order may be entered by the Department assessing a civil penalty.

(12) A civil penalty imposed by the Department must be remitted or reduced in a manner consistent with the public health and safety, as follows:

(a) The Department must reduce the penalty by not less than 25 percent if the facility self-reports abuse that results in less than serious harm.

(b) The Department must withdraw some or all of the penalty if the facility achieves substantial compliance for a level 2 or 3 violation.

(13) If the order is not appealed, the amount of the penalty is payable within 10 calendar days after the order is entered. If the order is appealed and is sustained, the amount of the penalty is payable within 10 calendar days after the court decision. The order, if not appealed or sustained on appeal, shall constitute a judgment and may be filed in accordance with the provisions of ORS 18.005 to 18.428. Execution may be issued upon the order in the same manner as execution upon a judgment of a court of record.

(14) A violation of any general order or final order pertaining to a residential care or assisted living facility issued by the Department, other than a Level 1 violation, is subject to a civil penalty.

(15) Judicial review of civil penalties imposed under ORS 441.710 shall be as provided under ORS 183.480, except the court may, in its discretion, reduce the amount of the penalty.

(16) All penalties recovered under ORS 441.710 to 441.740 and ORS 443.455 shall be paid to the Quality Care Fund.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 441.705 - 441.745, 443.400 - 443.455 & 443.991
APD 21-2026, temporary amend filed 08/03/2026, effective 08/10/2026 through 02/05/2027
APD 19-2018, amend filed 06/29/2018, effective 06/29/2018
APD 35-2017, temporary amend filed 12/30/2017, effective 01/01/2018 through 06/29/2018
APD 10-2016, f. 6-27-16, cert. ef. 6-28-16
APD 14-2015, f. 6-24-15, cert. ef. 6-28-15
APD 3-2015(Temp), f. & cert. ef. 1-29-15 thru 7-27-15
SPD 10-2010, f. 6-30-10, cert. ef. 7-1-10
SPD 23-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0130 Non-Renewal, Denial, Suspension or Revocation of License

(1) The Department may deny, suspend, revoke, or refuse to renew a license under the following conditions:

(a) Where the Department finds there has been substantial failure to comply with these rules;

(b) Where the State Fire Marshal or authorized representative certifies there is failure to comply with all applicable ordinances and rules relating to safety from fire;

(c) If the licensee fails to implement a plan of correction or comply with a final order of the Department imposing an administrative sanction, including the imposition of a civil penalty;

(d) Failure to disclose requested information on the application or provision of incomplete or incorrect information on the application;

(e) Where imminent danger to the health or safety of residents exists;

(f) When the facility has interfered with an employee or volunteer who has made a good faith disclosure of information as described in 411-054-0028(4) and 411-054-0105(2);

(g) Abandonment of facility operation;

(h) Loss of physical possession of the premise;

(i) Loss of operational control of the facility; or

(j) Appointment of a receiver, trustee, or other fiduciary by court order.

(2) Such revocation, suspension, denial, or non-renewal shall be done in accordance with the rules of the Department and ORS chapter 183.

(3) Nothing in this rule is intended to preclude the Department from taking other regulatory action on a suspended licensee for violation of the licensing regulations in these rules.

History

Statutory/Other Authority: ORS 410.070, 443.450 & 443.417
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
APD 55-2021, amend filed 12/09/2021, effective 12/15/2021
APD 23-2021, temporary amend filed 06/21/2021, effective 06/23/2021 through 12/19/2021
SPD 13-2009, f. 9-30-09, cert. ef. 10-1-09
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0133 Temporary Manager

(1) APPOINTMENT. The Division, 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 Division determines that 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;

(d) The Division's determination that 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 Division 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, or employ a person who is, qualified to serve as administrator for the type of facility being served;

(b) Be familiar with the Division’s rules for the operation of the facility to be served;

(d) Have a demonstrated history (five year minimum) of operating and managing a similar facility in substantial compliance with Department rules.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 to 443.455 & 443.991
SPD 10-2010, f. 6-30-10, cert. ef. 7-1-10
SPD 23-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10

Or. Admin. R. 411-054-0135 Criminal Penalties

(1) Violation of any provision of ORS 443.400 to 443.455 is a Class B misdemeanor.

(2) Violation of any provision of ORS 443.881 is a Class C misdemeanor.

History

Statutory/Other Authority: ORS 443.455
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0140 Additional Authority

SPD may commence a suit in equity to enjoin operation of a facility when:

(1) A facility is operated without a valid license; or

(2) Notice of revocation has been given and a reasonable time has been allowed for placement of individuals in other facilities.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0200 Residential Care Facility Building Requirements

A residential care facility (RCF) and a conversion facility (CF), as defined by OAR 411-054-0005, shall be built to the following requirements and may have individual or shared living units, unless specifically exempted.

(1) Applicability for 411-054-0200 shall apply to the following:

(a) A RCF not licensed prior to 01/15/2015, with the exception of

411-054-0200(5)(a) related to lockable doors. This will apply to all existing and new construction on the effective date as indicated.

(b) A major alteration to a RCF for which plans were not submitted to Facilities, Planning, and Safety (FPS) prior to 01/15/2015; or

(2) BUILDING CODES. Each RCF must meet the requirements of the facility standards set forth in these rules and with the building codes in effect at the time of original licensure.

(a) Subsequent modifications made to a RCF after original licensure, including, but not limited to demolition, remodeling, construction, maintenance, repair, or replacement must comply with all applicable state and local building, electrical, plumbing, and zoning codes in place at the time of the modification.

(b) If a change in use and building code occupancy classification occurs, license approval shall be contingent on meeting the requirements of the building codes.

(c) A RCF must comply with FPS program requirements for submission of building drawings and specifications as described in OAR 333-675-0000 through 333-675-0050.

(3) GENERAL BUILDING EXTERIOR.

(a) All exterior pathways and accesses to the RCF common-use areas, entrance, and exit ways must be made of hard, smooth material, be accessible, and maintained in good repair.

(b) A RCF must take measures to prevent the entry of rodents, flies, mosquitoes, and other insects. There must be locked storage for all poisons, chemicals, rodenticides, and other toxic materials. All materials must be properly labeled.

(d) As described in OAR 411, division 057, memory care communities licensed as a RCF must be located on the ground floor. A CF cannot be endorsed as a memory care community.

(e) A RCF must provide storage for all maintenance equipment, including yard maintenance tools, if not provided by a third-party contract.

(f) A RCF must provide an accessible outdoor recreation area. The outdoor recreation area must be available to all residents. Lighting must be equal to a minimum of five foot candles. Memory Care Communities must provide residents with direct access to a secure outdoor recreation area as described in OAR chapter 411, division 057.

(g) Outdoor perimeter fencing may not be secured to prevent exit unless the RCF has written approval from the Department for an exception or the RCF is in compliance with OAR chapter 411, division 057 (Memory Care Communities) or OAR 309-019-0100 through 309-019-0220.

(h) A RCF must have an entry and exit drive to and from the main building entrance that allows for a vehicle to pick up and drop off residents and mail deliveries without the need for vehicles to back up.

(4) GENERAL BUILDING INTERIOR. The design of a RCF must emphasize a residential appearance while retaining the features required to support special resident needs as outlined in this rule.

(a) RECEPTION AREA. A reception area must be visible and accessible to residents and visitors when entering the doors of the main entrance to the RCF.

(b) CORRIDORS. Resident-use areas and units must be connected through temperature controlled common corridors.

(A) Resident-use corridors exceeding 20 feet in length to an exit or common-use area, must have a minimum width of 72 inches. A CF may request an exception to this requirement, which shall be reviewed and decided on a case-by-case basis.

(B) Corridors shall not exceed 150 feet in length from any resident unit to a seating or other common-use area. A CF may request an exception to this requirement, which shall be reviewed and decided on a case-by-case basis.

(A) Hard surface floors and base must be free from cracks and breaks.

(B) Carpeting and other floor materials must be constructed and installed to minimize resistance for passage of wheelchairs and other ambulation aids.

(C) Thresholds and floor junctures must be maintained to allow for the passage of wheelchairs and to prevent a tripping hazard.

(d) INTERIOR DOORS. Lever-type door handles must be provided on all doors used by residents.

(e) EXIT DOORS. Exit doors may not include locks that delay evacuation except as specified by the building codes. Such locks may not be installed except with written approval of the Department.

(A) Exit doors may not include locks that prevent evacuation.

(B) If an electronic code must be entered to use an exit door that code must be clearly posted for residents, visitors, and staff use.

(f) WALLS AND CEILINGS. Walls and ceilings must be cleanable in kitchen, laundry, and bathing areas. Kitchen walls must be finished smooth per OAR 333-150-0000 (Food Sanitation Rules).

(g) ELEVATORS. A RCF with residents on more than one floor must provide at least one elevator that meets Oregon Elevator Specialty Code (OESC) requirements.

(h) The interior of the facility must be free from unpleasant odors.

(i) All interior and exterior materials and surfaces (e.g., floors, walls, roofs, ceilings, windows, and furniture) and all equipment necessary for the health, safety, and comfort of the resident will be kept clean and in good repair.

(5) RESIDENT UNITS. Resident units may be limited to a bedroom only, with bathroom facilities centrally located off common corridors. Each resident unit shall be limited to not more than two residents.

(a) Resident units must have a lockable door with lever type handles, effective 01/15/2017. This applies to all existing and new construction.

(b) For bedroom units, the door must open to an indoor, temperature controlled common-use area or common corridor. Residents may not enter a room through another resident's bedroom.

(c) Resident units must include a minimum of 80 square feet per resident, exclusive of closets, vestibules, and bathroom facilities and allow for a minimum of three feet between beds;

(d) All resident bedrooms must be accessible for individuals with disabilities and meet the requirements of the building codes. Adaptable units are not acceptable.

(e) A lockable storage space (e.g., drawer, cabinet, or closet) must be provided for the safekeeping of a resident's small valuable items and funds. Both the administrator and resident may have keys.

(f) WARDROBE CLOSET. A separate wardrobe closet must be provided for each resident's clothing and personal belongings. Resident wardrobe and storage space must total a minimum volume of 64 cubic feet for each resident. The rod must be adjustable for height or fixed for reach ranges per building codes. In calculating useable space closet height may not exceed eight feet and a depth of two feet.

(g) WINDOWS.

(A) Each sleeping and living unit must have an exterior window that has an area at least one-tenth of the floor area of the room. A CF must have at least one exterior window with a minimum size of 8 square feet per resident.

(B) Unit windows must be equipped with curtains or blinds for privacy and control of sunlight.

(C) Operable windows must be designed to prevent accidental falls when sill heights are lower than 36 inches and above the first floor.

(h) RESIDENT UNIT BATHROOMS. If resident bathrooms are provided within a resident unit, the bathroom must be a separate room and include a toilet, hand wash sink, mirror, towel bar, and storage for toiletry items. The bathrooms must be accessible for individuals who use wheelchairs.

(i) UNIT KITCHENS. If cooking facilities are provided in resident units, cooking appliances must be readily removable or disconnect-able and the RCF must have and carry out a written safety policy regarding resident-use and nonuse. A microwave is considered a cooking appliance.

(6) COMMON-USE AREAS.

(a) BATHING FACILITIES. Centralized bathing fixtures must be provided at a minimum ratio of one tub or shower for each ten residents not served by fixtures within their own unit.

(A) At least one centralized shower or tub must be designed for disabled access without substantial lifting by staff.

(B) Bathing facilities must be located or screened to allow for resident privacy while bathing and provide adequate space for an attendant.

(D) Grab bars must be provided in all resident showers.

(E) Showers must be equipped with a hand-held showerhead and a cleanable shower curtain.

(b) TOILET FACILITIES. Toilet facilities must be located for resident-use at a minimum ratio of one to six residents for all residents not served by toilet facilities within their own unit. Toilet facilities must include a toilet, hand wash sink, and mirror.

(A) Toilet facilities for all of the licensed resident capacity must be accessible to individuals with disabilities in accordance with the building codes.

(B) A RCF licensed for more than 16 residents must provide at least one separate toilet and hand wash lavatory for staff and visitor use.

(c) DINING AREA. The dining area must be provided with the capacity to seat 100 percent of the residents. The dining area must provide a minimum of 22 square feet per resident for seating, exclusive of serving carts and other equipment or items that take up space in the dining area. A RCF must have policies and equipment to assure food is served fresh and at proper temperatures. If a CF provides a minimum of 30 square feet per resident for a combined dining, activities, and living area, the CF may apply for an exception to this subsection.

(d) SOCIAL AND RECREATION AREAS. A RCF must include lounge and activity areas for social and recreational use totaling a minimum of 15 square feet per resident. If a CF provides a minimum of 30 square feet per resident for a combined dining, activities, and living area, the CF may apply for an exception to this subsection.

(e) COOKING STOVE. If a stove is provided in the activities or common-use area, and is available for resident-use, a keyed, remote switch, or other safety device must be provided to ensure staff control.

(7) SUPPORT SERVICE AREAS.

(a) MEDICATION STORAGE. A RCF must have a locked and separate closed storage area for medications, supportive of the distribution system utilized including:

(A) A method for refrigeration of perishable medications that provides for locked separation from stored food items;

(B) Medications must be stored in an area that is separate from any poisons, hazardous material, or toxic substance; and

(b) HOUSEKEEPING AND SANITATION.

(A) A RCF must have a secured janitor closet for storing supplies and equipment, with a floor or service sink.

(B) The wall base shall be continuous and coved with the floor, tightly sealed to the wall, and constructed without voids that can harbor insects or moisture.

(c) LAUNDRY FACILITIES. Laundry facilities may be located to allow for both resident and staff use, when a time schedule for resident-use is provided and equipment is of residential type. When the primary laundry is not in the building or suitable for resident-use, a RCF must provide separate resident-use laundry facilities. A CF is not required to provide resident-use laundry services.

(A) Laundry facilities must be operable and at no additional cost to the resident.

(B) Laundry facilities must have space and equipment to handle laundry-processing needs. Laundry facilities must be separate from food preparation and other resident-use areas.

(C) On-site laundry facilities, used by staff for facility and resident laundry, must have capacity for locked storage of chemicals and equipment.

(D) The wall base shall be continuous and coved with the floor, tightly sealed to the wall, and constructed without voids that can harbor insects or moisture.

(d) SOILED LINEN PROCESSING. For the purpose of this rule, "soiled linens and soiled clothing," means linens or clothing contaminated by an individual's bodily fluids (for example, urine, feces, or blood).

(A) There must be a separate area with closed containers that ensure the separate storage and handling of soiled linens and soiled clothing. There must be space and equipment to handle soiled linen and soiled clothing processing needs that is separate from regular linens and clothing.

(B) Arrangement must provide a one-way flow of soiled linens and soiled clothing from the soiled area to the clean area and preclude potential for contamination of clean linens and clothing.

(C) The soiled linen room or area, must include a flushing rim clinical sink with a handheld rinsing device and a hand wash sink or lavatory.

(D) When washing soiled linens and soiled clothing, washers must have a minimum rinse temperature of 140 degrees Fahrenheit unless a chemical disinfectant is used.

(E) Personnel handling soiled laundry must be provided with waterproof gloves.

(F) Covered or enclosed clean linen storage must be provided and may be on shelves or carts. Clean linens may be stored in closets outside the laundry area.

(G) The wall base shall be continuous and coved with the floor, tightly sealed to the wall, and constructed without voids that can harbor insects or moisture.

(e) KITCHEN AND FOOD STORAGE. Kitchen facilities and equipment in residential care facilities with a capacity of 16 or fewer may be of residential type except as required by the building codes. Residential care facilities licensed for a capacity of more than 16, must comply with OAR 333-150-0000 (Food Sanitation Rules). The following are required:

(A) Dry storage space, not subject to freezing, for a minimum one-week supply of staple foods.

(B) Refrigeration and freezer space at proper temperature to store a minimum two days' supply of perishable foods.

(C) Storage for all dishware, utensils, and cooking utensils used by residents must meet OAR 333-150-0000 (Food Sanitation Rules).

(D) In facilities licensed to serve 16 or fewer residents, a dishwasher must be provided (may be residential type) with a minimum final rinse temperature of 140 degrees Fahrenheit (160 degrees recommended), unless a chemical disinfectant is used in lieu of the otherwise required water temperature. In facilities of 17 or more capacity, a commercial dishwasher is required meeting OAR 333-150-0000 (Food Sanitation Rules).

(E) In residential care facilities with a capacity of 16 or fewer, a two compartment sink or separate food preparation sink and hand wash lavatory must be provided. In residential care facilities with 17 or more capacity, a triple pot wash sink (unless all pots are sanitized in the dishwasher), a food prep sink, and separate hand wash lavatory must be provided.

(F) Food preparation and serving areas must have smooth and cleanable counters.

(G) Stove and oven equipment for cooking and baking needs.

(H) Storage in the food preparation area for garbage must be enclosed and separate from food storage.

(I) Storage for a mop and other cleaning tools and supplies used for dietary areas must be separate from those used in toilet rooms, resident rooms, and other support areas. In residential care facilities with a capacity of 17 or more, a separate janitor closet or alcove must be provided with a floor or service sink and storage for cleaning tools and supplies.

(J) Storage must be available for cookbooks, diet planning information, and records.

(K) The wall base shall be continuous and coved with the floor, tightly sealed to the wall, and constructed without voids that can harbor insects or moisture.

(8) HEATING AND VENTILATION SYSTEMS. A RCF must have heating and ventilation systems that comply with the building codes in effect at the time of facility construction.

(a) TEMPERATURE. For all areas occupied by residents, design temperature for construction must be 75 degrees Fahrenheit.

(A) A RCF must provide heating systems capable of maintaining 70 degrees Fahrenheit in resident areas. Required minimum temperatures are no less than 70 degrees Fahrenheit during the day and 60 degrees Fahrenheit during sleeping hours.

(B) During times of extreme summer heat, fans must be made available when air conditioning is not provided.

(b) EXHAUST SYSTEMS. All toilet and shower rooms must be equipped with a mechanical exhaust fan or central exhaust system that discharges to the outside.

(c) FIREPLACES, FURNACES, WOODSTOVES, AND BOILERS. Where used, installation must meet standards of the building codes in effect at the time of construction. The glass and area surrounding the fireplace must not exceed 120 degrees Fahrenheit.

(d) WALL HEATERS. Covers, grates, or screens of wall heaters and associated heating elements may not exceed 120 degrees Fahrenheit when they are installed in locations that are subject to incidental contact by people or with combustible material. Effective 01/15/2015, wall heaters are not acceptable in new construction or remodeling.

(9) PLUMBING SYSTEMS. Plumbing systems must conform to the building codes in effect at the time of facility construction.

(a) Hot water temperature in residents' units must be maintained within a range of 110 - 120 degrees Fahrenheit.

(b) Hot water temperatures serving dietary areas must meet OAR 333-150-0000 (Food Sanitation Rules).

(c) An outside area drain and hot and cold water hose bibs must be provided for sanitizing laundry carts, food carts, and garbage cans.

(10) ELECTRICAL REQUIREMENTS.

(a) WIRING SYSTEMS. All wiring systems must meet the building codes in effect at the date of installation and shall be maintained and in good repair.

(b) The use of extension cords and other special taps is not allowed.

(c) LIGHTING. Lighting fixtures must be provided in each resident bedroom and bathroom, and be switchable and near the entry door.

(A) Each resident bedroom must have illumination of at least 20-foot candles measured at three feet above the floor for way finding from the room entrance, to each bed, and to the adjoining toilet room, if one exists.

(B) Lighting in toilet rooms and bathing facilities used by residents must be at least 50-foot candles, measured at the hand wash sink and three feet above the shower floor with the curtain open.

(D) Table height lighting in dining rooms must equal a minimum of 25-foot candles, without light from windows.

(11) CALL SYSTEM. A RCF must provide a call system that connects resident units to the care staff center or staff pagers. Wireless call systems are allowed.

(a) A manually operated emergency call system must be provided in each toilet and bathing facility used by residents and visitors.

(b) EXIT DOOR ALARMS. An exit door alarm or other acceptable system must be provided for security purposes and to alert staff when residents exit the RCF. The door alarm system may be integrated with the call system.

(c) Security devices intended to alert staff of an individual resident's potential elopement may include, but not be limited to, electronic pendants, bracelets, pins.

(12) TELEPHONES. Adequate telephones must be available for resident, staff, and visitor use, including those individuals who have physical disabilities. If the only telephone is located in a staff area, it must be posted that the telephone is available for normal resident-use at any time and that staff shall ensure the resident's uninterrupted privacy. Staff may provide assistance when necessary or requested.

(13) TELEVISION ANTENNA OR CABLE SYSTEM. A RCF must provide a television antenna or cable system with an outlet in each resident unit.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
APD 19-2018, amend filed 06/29/2018, effective 06/29/2018
APD 35-2017, temporary amend filed 12/30/2017, effective 01/01/2018 through 06/29/2018
APD 12-2015, f. & cert. ef. 6-24-15
APD 1-2015, f. 1-14-15, cert. ef. 1-15-15
SPD 13-2009, f. 9-30-09, cert. ef. 10-1-09
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0300 Assisted Living Facility Building Requirements

An assisted living facility (ALF), as defined by OAR 411-054-0005, shall be built to the following requirements and have individual living units that have a lockable door, private bathroom, and kitchenette.

(1) Applicability for 411-054-0300 shall apply to the following:

(a) An ALF not licensed prior to 01/15/2015; or

(b) A major alteration to an ALF for which plans were not submitted to Facilities, Planning, and Safety prior to 01/15/2015;

(2) BUILDING CODES. Each ALF must meet the requirements of the facility standards set forth in these rules and with the building codes in effect at the time of original licensure.

(a) Subsequent modifications made to an ALF after original licensure, including, but not limited to, demolition, remodeling, construction, maintenance, repair, or replacement must comply with all applicable state and local building, electrical, plumbing, and zoning codes in place at the time of the modification.

(b) If a change in use and building code occupancy classification occurs, license approval shall be contingent on meeting the requirements of the building codes.

(c) An ALF must comply with FPS program requirements for submission of building drawings and specifications as described in OAR 333-675-0000 through 333-675-0050.

(3) GENERAL BUILDING EXTERIOR.

(a) All exterior pathways and accesses to the ALF’s common-use areas, entrance, and exit ways must be made of hard, smooth material, be accessible, and maintained in good repair.

(b) An ALF must take measures to prevent the entry of rodents, flies, mosquitoes, and other insects. There must be locked storage for all poisons, chemicals, rodenticides, and other toxic materials. All materials must be properly labeled.

(d) As described in OAR chapter 411, division 057, memory care communities licensed as an ALF must be located on the ground floor.

(e) An ALF must provide storage for all maintenance equipment, including yard maintenance tools, if not provided by third party contract.

(f) An ALF must provide an accessible outdoor recreation area. The outdoor recreation area must be available to all residents. Lighting must be equal to a minimum of five foot candles. Memory care communities must provide residents with direct access to a secure outdoor recreation area as described in OAR chapter 411, division 57.

(g) Outdoor perimeter fencing may not be secured to prevent exit unless the ALF has received written approval from the Department or the ALF is in compliance with OAR chapter 411, division 57 (Memory Care Communities) or OAR 309-032-1500 through 309-032-1565(Enhanced Care Services).

(h) An ALF must have an entry and exit drive to and from the main building entrance that allows for a vehicle to pick up and drop off residents and mail deliveries without the need for vehicles to back up.

(4) GENERAL BUILDING INTERIOR. The design of an ALF must emphasize a residential appearance while retaining the features required to support special resident needs as outlined in this rule.

(a) RECEPTION AREA. A reception area must be visible and accessible to residents and visitors when entering the doors of the main entrance to the ALF.

(b) CORRIDORS. Resident-use areas and units must be connected through temperature controlled common corridors.

(A) Resident-use corridors exceeding 20 feet in length to an exit or common-use area, must have a minimum width of 72 inches.

(B) Corridors shall not exceed 150 feet in length from any resident unit to a seating or other common-use area.

(A) Hard surface floors and base must be free from cracks and breaks.

(B) Carpeting and other floor materials must be constructed and installed to minimize resistance for passage of wheelchairs and other ambulation aids.

(C) Thresholds and floor junctures must be maintained to allow for the passage of wheelchairs and to prevent a tripping hazard.

(d) INTERIOR DOORS. Lever-type door handles must be provided on all doors used by residents.

(e) EXIT DOORS. Exit doors may not include locks that delay evacuation except as specified by building codes. Such locks may not be installed except with written approval of the Department.

(A) Exit doors may not include locks that prevent evacuation.

(B) If an electronic code must be entered to use an exit door that code must be clearly posted for residents, visitors, and staff use.

(f) WALLS AND CEILINGS. Walls and ceilings must be cleanable in kitchen, laundry, and bathing areas. Kitchen walls must be finished smooth per OAR 333-150-0000 (Food Sanitation Rules).

(g) ELEVATORS. An ALF with residents on more than one floor must provide at least one elevator that meets Oregon Elevator Specialty Code (OESC) requirements.

(h) The interior of the facility must be free from unpleasant odors.

(i) All interior and exterior materials and surfaces (e.g. floors, walls, roofs, ceilings, windows, and furniture) and all equipment necessary for the health, safety, and comfort of the resident must be kept clean and in good repair.

(5) RESIDENT UNITS. All resident units must be accessible per building codes. These apartments must have a lockable entry door with lever type handle, a private bathroom, and kitchenette facilities. Adaptable units are not acceptable.

(a) UNIT DIMENSIONS. New construction units must have a minimum of 220 net square feet, not including the bathroom. Units in pre-existing structures being remodeled must have a minimum of 160 square feet, not including the bathroom.

(b) RESIDENT STORAGE SPACE.

(A) Each unit must provide usable space totaling at least 100 cubic feet for resident clothing and belongings and include one clothes closet with a minimum of four linear feet of hanging space.

(B) The rod must be adjustable for reach ranges per building codes. In calculating useable space, closet height may not exceed eight feet and a depth of two feet.

(D) A lockable storage space (e.g., drawer, cabinet, or closet) must be provided for the safekeeping of a resident’s small valuable items and funds. Both the administrator and resident may have keys.

(A) Each resident's living room and bedroom must have an exterior window that has an area at least one-tenth of the floor area of the room.

(B) Unit windows must be equipped with curtains or blinds for privacy and control of sunlight.

(C) Operable windows must be designed to prevent accidental falls when sill heights are lower than 36 inches and above the first floor.

(d) DOORS. Each unit must have an entry door that does not swing into the exit corridor.

(A) A locking device must be included that is released with action of the inside lever. Locks for the entry door must be individually keyed, master keyed, and a key supplied to the resident.

(B) The unit exit door must open to an indoor, temperature controlled, common-use area or common corridor.

(e) BATHROOM. The unit bathroom must be a separate room with a toilet, sink, a roll-in curbless shower, towel bar, toilet paper holder, mirror, and storage for toiletry items.

(A) The door to the bathroom must open outward or slide into the wall.

(B) Showers must have a slip-resistant floor surface in front of roll-in showers, a hand-held showerhead, cleanable shower curtains, and appropriate grab bar.

(f) KITCHENS OR KITCHENETTES. Each unit must have a kitchen area equipped with the following:

(A) A sink, refrigerator, and cooking appliance that may be removed or disconnected. A microwave is considered a cooking appliance.

(B) Adequate space for food preparation.

(D) Counter heights may not be higher than 34 inches.

(6) COMMON-USE AREAS.

(a) PUBLIC RESTROOMS. There must be accessible public restrooms for visitor, staff, and resident-use, convenient to dining and recreation areas.

(A) The public restroom must contain a toilet, sink, waste container, and a hand drying means that cannot be reused.

(B) There must be a manually operated emergency call system in the public restrooms.

(b) DINING AREA. The building must have a dining area with the capacity to seat 100 percent of the residents. The dining area must provide 22 square feet per resident for seating, exclusive of service carts and other equipment or items that take up space in the dining area. This rule is exclusive of any separate private dining areas.

(c) SOCIAL AND RECREATION AREAS. An ALF must include lunge and activity areas for social and recreational-use totaling a minimum of 15 square feet per resident.

(d) COOKING STOVE. If a stove is provided in the activities or common-use area, and is available for resident-use, a keyed, remote switch, or other safety device must be provided to ensure staff control.

(e) RESIDENT LAUNDRY FACILITIES. Laundry facilities must be operable and at no additional cost to the resident. Resident laundry facilities must have at least one washer and dryer.

(f) MAILBOX. Each resident or unit must be provided a mailbox that meets US Postal Service requirements.

(7) SUPPORT SERVICE AREAS.

(a) MEDICATION STORAGE. An ALF must provide a secure space for medication storage, with access to a sink and cold storage in the same area. Space for necessary medical supplies and equipment must be provided.

(b) HOUSEKEEPING AND SANITATION.

(A) An ALF must have a secured janitor closet for storing supplies and equipment, with a floor or service sink.

(B) The wall base shall be continuous and coved with the floor, tightly sealed to the wall, and constructed without voids that can harbor insects or moisture.

(c) LAUNDRY FACILITIES. Laundry facilities may be located to allow for both resident and staff use when a time schedule for resident-use is provided and equipment is of residential type.

(A) If the primary laundry facility is not suitable for resident-use, an ALF must provide separate resident laundry facilities.

(B) Laundry facilities must be separate from food preparation and other resident-use areas.

(C) On-site laundry facilities, used by staff for facility and resident laundry, must have capacity for locked storage of chemicals and equipment.

(D) An ALF must provide covered or enclosed clean linen storage that may be on shelves or carts. Clean linens may be stored in closets outside the laundry area.

(E) The wall base of the laundry facilities must be continuous and coved with the floor, tightly sealed to the wall and constructed without voids that may harbor insects or moisture.

(d) SOILED LINEN PROCESSING. For the purpose of this rule, "soiled linens and soiled clothing," means linens or clothing contaminated by an individual’s bodily fluids (for example, urine, feces, and blood).

(B) Arrangement must provide a one-way flow of soiled linens and soiled clothing from the soiled area to the clean area and preclude potential for contamination of clean linens and clothing.

(C) The soiled linen area must include a flushing rim clinical sink with a handheld rinsing device and a hand wash sink or lavatory.

(D) When washing soiled linens and soiled clothing, washers must have a minimum rinse temperature of 140 degrees Fahrenheit unless a chemical disinfectant is used.

(E) Personnel handling soiled laundry must be provided with waterproof gloves.

(F) Covered or enclosed clean linen storage must be provided and may be on shelves or carts. Clean linens may be stored in closets outside the laundry area.

(G) The wall base of the laundry facilities must be continuous and coved with the floor, tightly sealed to the wall and constructed without voids that may harbor insects or moisture.

(e) KITCHEN AND FOOD STORAGE. An ALF must comply with OAR 333-150-0000 (Food Sanitation Rules), for food handling and primary meal preparation areas. Each ALF must have:

(A) Dry storage space, not subject to freezing, for a minimum one-week supply of staple foods.

(B) Refrigeration and freezer space at the proper temperature to store a minimum two days' supply of perishable foods.

(C) Storage for all dishware, utensils, and cooking utensils used by residents must meet OAR 333-150-0000 (Food Sanitation Rules).

(D) Storage for a mop, other cleaning tools, and supplies used for dietary areas. Such tools must be separate from those used in toilet rooms, resident rooms, and other support areas.

(E) A separate janitor closet or alcove with a floor or service sink and storage for cleaning tools and supplies.

(F) Storage in the food preparation area for garbage must be enclosed and separate from food storage.

(G) Storage must be available for cookbooks, diet planning information, and records.

(H) All kitchen and food storage areas must have a wall base that is continuous and coved with the floor, tightly sealed to the wall, and constructed without voids that can harbor insects or moisture.

(8) HEATING AND VENTILATION SYSTEMS. An ALF must have heating and ventilation systems that comply with the building codes in effect at the time of facility construction.

(a) TEMPERATURE. For all areas occupied by residents, design temperature for construction must be 75 degrees Fahrenheit.

(A) An ALF must provide heating systems capable of maintaining 70 degrees Fahrenheit in resident areas. Required minimum temperatures are no less than 70 degrees Fahrenheit during the day and 60 degrees Fahrenheit during sleeping hours.

(B) During times of extreme summer heat, fans must be made available when air conditioning is not provided.

(b) EXHAUST SYSTEMS. All toilet and shower rooms must be equipped with a mechanical exhaust fan or central exhaust system that discharges to the outside.

(c) WALL HEATERS. Covers, grates, or screens of wall heaters and associated heating elements may not exceed 120 degrees Fahrenheit when they are installed in locations that are subject to incidental contact by individuals or with combustible material. Effective 01/15/2015 wall heaters are not acceptable in new construction or remodeling.

(d) VENTILATION. Ventilation in each unit must occur via an open window to the outside, or with a mechanical venting system capable of providing two air changes per hour with one-fifth of the air supply taken from the outside.

(9) PLUMBING SYSTEMS. Plumbing systems must conform to the building codes in effect at the time of facility construction.

(a) Hot water temperature in residents' units must be maintained within a range of 110 - 120 degrees Fahrenheit.

(b) Hot water temperatures serving dietary areas must meet OAR 333-150-0000 (Food Sanitation Rules).

(c) An outside area drain and hot and cold water hose bibs must be provided for sanitizing laundry carts, food carts, and garbage cans.

(10) ELECTRICAL SYSTEMS.

(a) WIRING SYSTEMS. All wiring systems must meet the building codes in effect at the date of installation and devices shall be maintained and in good repair.

(b) The use of extension cords and other special taps is not allowed.

(c) LIGHTING. Each unit must have general illumination in the bath, kitchen, living space, and sleeping area. The general lighting intensity in the unit for way finding must be at least 20-foot candles measured from the floor.

(A) Lighting in the unit bathroom must be at least 50-foot candles measured from the height of the hand-wash basin and three feet above the shower floor with the curtain open.

(B) Task lighting at the unit food preparation or cooking area must be at least 50-foot candles measured from counter height.

(D) Table height lighting in the dining room must equal a minimum of 25-foot candles without light from windows.

(11) CALL SYSTEM. An ALF must provide a call system that connects resident units to the care staff center or staff pagers. Wireless call systems are allowed.

(a) A manually operated emergency call system must be provided at each resident bathroom, central bathing rooms, and public-use restrooms.

(b) EXIT DOOR ALARMS. Exit door alarms or other acceptable systems must be provided for security purposes and to alert staff when residents exit the ALF. The door alarm system may be integrated with the call system.

(c) Security devices intended to alert staff of an individual resident’s potential elopement may include, but not be limited to, electronic pendants, bracelets, pins.

(12) TELEPHONES.

(a) RESIDENT PHONES. Each unit must have at least one telephone jack to allow for individual phone service.

(b) PUBLIC TELEPHONE. There must be an accessible local access public telephone in a private area that allows a resident or another individual to conduct a private conversation.

(13) TELEVISION ANTENNA OR CABLE SYSTEM. An ALF must provide a television antenna or cable system with an outlet in each resident unit.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
APD 1-2015, f. 1-14-15, cert. ef. 1-15-15
SPD 13-2009, f. 9-30-09, cert. ef. 10-1-09
SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07

Or. Admin. R. 411-054-0320 Quality Measurement Program and Council

(1) The purpose of the Quality Measurement Program is to allow facilities and the public to compare residential care and assisted living facility performance on each quality metric. The Department shall provide and maintain a web-based report based on metrics defined in Or Laws 2017, ch 679, § 15(1) and any other metrics determined by the Quality Measurement Council. The first report from this program will be published July 1, 2021.

(2) Quality Measurement Council. The Quality Measurement Council is appointed by the Governor, and consists of the following members:

(a) One individual representing the Oregon Patient Safety Commission.

(b) One individual representing residential care facilities or assisted living facilities.

(d) One licensed health care practitioner with experience in geriatrics.

(e) Two individuals associated with academic institutions who have expertise in research data and analytics and community-based care and quality reporting.

(f) The Long-Term Care Ombudsman or a designee of the Long-Term Care Ombudsman.

(g) One direct care worker or a representative of a direct care worker who works in a residential care facility.

(h) One individual representing the Department.

(3) A staff coordinator shall be assigned by the Department to support the council. The staff coordinator will assist the council as needed and ensure the annual report required by Or Laws 2017, ch 679, § 15(3) and (4) are implemented.

(4) The council shall determine the form and manner for facilities to report metrics for the prior calendar year. Data that identifies a resident is excluded from this requirement.

(a) In developing quality metrics, the council shall consider whether:

(A) Reported data reflects and promotes quality care; and

(B) Reporting the data is unnecessarily burdensome on residential care and assisted living facilities.

(b) On or after January 1, 2022, the council may update, by rule, the quality metrics to be reported by residential care and assisted living.

(5) Annual facility reports.

(a) All residential care and assisted living facilities shall report required metrics to the Department no later than January 31 of each year. The first reports are due January 31, 2021.

(b) Each facility shall report the following quality metrics for the prior calendar year:

(A) Retention of direct care staff.

(B) Falls resulting in physical injury.

(D) Facility compliance with staff training requirements.

(E) Results of an annual resident satisfaction survey conducted by an independent entity.

(F) A metric that measures the quality of the resident experience.

(G) Any other metrics determined by the council.

(6) Annual report from the Department.

(a) The Department shall develop an annual report by July 1st that is based on the information provided by all reporting residential care and assisted living facilities. This report shall be made available online to each facility. The first report is due July 1, 2021.

(b) The report shall be in a standard format and written in plain language.

(A) Describe statewide patterns and trends that emerge from the collected data.

(B) Describe compliance data maintained by the Department.

(D) Allow facilities and the public to compare a facility’s performance on each quality metric, by demographics, geographic region, facility type, and other categories the Department believes may be useful to consumers and facilities.

(E) Show trends in performance for each quality metric.

(F) Identify patterns of performance by geographic regions, and other categories the Department believes will be useful to consumers.

(G) Identify the number, severity, and scope of regulatory violations by each geographic region.

(H) Show average timelines for surveys and investigations of abuse or regulatory noncompliance.

(d) Quality metric data reported to the Department under this section may not be used against the facility, as required under Or Laws 2017, ch 679, § 15(7). This section does not exempt a facility from complying with state law. Also, the Department may use quality metric data obtained during the normal course of business or compliance activity, as required by Or Laws 2017, ch 679, § 15(8).

(7) Online Training. The Department shall develop online training modules for facilities and the public.

(a) Training modules shall address the top two statewide issues identified by surveys or reviews of facilities during the prior year.

(b) Training modules shall be available and accessible by January 1, 2019.

History

Statutory/Other Authority: ORS 410.070 & 443.450
Statutes/Other Implemented: Or Laws 2017, ch 679, sec 15
APD 55-2021, amend filed 12/09/2021, effective 12/15/2021
APD 23-2020, amend filed 06/20/2020, effective 06/24/2020
APD 55-2019, temporary amend filed 12/23/2019, effective 01/01/2020 through 06/28/2020
APD 19-2018, adopt filed 06/29/2018, effective 06/29/2018
APD 35-2017, temporary adopt filed 12/30/2017, effective 01/01/2018 through 06/29/2018

Division 55 INTENSIVE INTERVENTION COMMUNITIES (IIC)

Or. Admin. R. 411-055-0305 Purpose

(1) The purpose of the rules in OAR chapter 411, division 55 is to establish standards and procedures for licensed Residential Care Facilities endorsed as Intensive Intervention Communities (IICs). Intensive Intervention Communities provide specialized services for individuals with behavioral issues who are best served in smaller settings of fewer than six residents.

(2) These rules are designed to ensure that residents living in Intensive Intervention Communities have positive quality of life, consumer protection, autonomy, and person-centered care. Resident's rights, dignity, choice, comfort, and independence are promoted in this setting. The endorsement does not constitute a recommendation of any IIC by the Department of Human Services Aging and People with Disabilities (APD) program.

(3) The intent of these rules is to prevent institutionalization, re-institutionalization, or hospitalization of individuals who need the safe and skillful application of Intensive Intervention Services.

History

Statutory/Other Authority: ORS 409.050, 410.070, 443.450
Statutes/Other Implemented: ORS 409.050, 410.070, 443.400 - 443.455, 443.991
APD 20-2019, adopt filed 06/26/2019, effective 06/28/2019

Or. Admin. R. 411-055-0310 Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 55:

(1) "Activities of Daily Living (ADL)" means those personal functional activities required by an individual for continued well-being, which are essential for health, and safety. Activities include eating, dressing and grooming, bathing and personal hygiene, mobility, elimination, and cognition as described in OAR 411-054-0005.

(2) "Adult Protective Services" (APS) means the services defined in OAR 411-020-0002(7).

(3) "Aging and People with Disabilities (APD)" means the Aging and People with Disabilities program within the Department of Human Services.

(4) "Approved Advanced Behavior Support Services Curriculum" means a course in procedures and techniques for intervening in behavioral emergency situations.

(6) "Behavior Coordinator (BC)" is a Department-approved employee or a contractor of the service provider who is qualified as a Behavior Support Service Provider (BSSP) under OAR chapter 411, division 46 who, in addition, has received training to provide the Intensive Intervention Services in this rule.

(7) "Behavior Interventions" means any planned pattern of interventions or interactions intended to modify an individual's environment or behavior to support the individual.

(8) "Behavioral Support" means the theories and evidenced-based practices supporting a proactive approach to behavioral intervention.

(9) "Behavior Support Plan" (BSP) means the written document that describes individualized support strategies designed to decrease challenging behaviors, while reinforcing alternative behavior that supports the individual's needs developed by the Behavior Coordinator.

(10) "Business day" means the days the Department of Human Services, APD or AAA office is open.

(11) "Care coordination" means the coordinated involvement of a team that may include the individual, Interdisciplinary Team, APD or AAA office case manager, mental health program staff, Central Office staff, and healthcare providers, when participants are dependent upon each other to carry out disparate activities regarding an individual's care to ensure the individual's needs are met.

(12) "Case manager" (CM) means a Department employee or an employee of the Department's designee who meets the minimum qualifications in OAR 411-028-0040. The CM:

(a) Assesses the service needs of the individual.

(b) Determines eligibility.

(d) Authorizes referrals for a Behavior Support Service consultation, or placement in a program where Intensive Intervention Services (IIS) are provided.

(e) Evaluates the effectiveness of Medicaid home and community-based services.

(13) "Chemical restraints" means the use of any substance or drug used for the purpose of discipline or convenience that has the effect of restricting the individual's freedom of movement or behavior and is not used to treat the individual's medical or psychiatric condition.

(14) "Contract Administrator" means the Department staff person who administers the Special Needs Contract with the Behavior Support Service Provider to ensure these providers provide appropriate specialized services to individuals living in Intensive Intervention Services settings.

(15) "Crisis Plan" means a required documented component of the Behavior Support Plan that direct care staff on actions to be taken if an individual's behavior deteriorates and the approaches in the other part of the Behavior Support Plan are no longer effective.

(16) "Dementia" means the major neurocognitive disorders listed in the Diagnostic and Statistical Manual of Mental Disorders (DMS-V).

(17) "Department" means the Department of Human Services (DHS).

(18) "Direct care staff" means an employee of a facility or program as defined in OAR 411-054-0005 who has successfully completed training in an approved Intensive Intervention Services curriculum and is approved by the Department to use Intensive Intervention Services.

(19) "Emergency medication" means the use of medication to deescalate an individual's behavior and the use must be defined in the Behavior Support Plan and requires an Individually Based Limitation as described in OAR 411-004-0040. It does not include the medication administered as treatment for a medical or psychiatric condition.

(20) "Excessive use of force" means force beyond the minimum necessary to mitigate an individual's behavior.

(21) "Healthcare Provider" means a licensed provider licensed to provide services to an eligible individual including, but not limited to:

(a) Home health.

(b) Hospice.

(d) Primary care.

(e) Specialty care.

(f) Pharmacy.

(g) Hospital.

(22) "Home and Community-Based Services" (HCBS) means the requirements as defined and described in OAR Chapter 411, division 4.

(23) "Individual" means a person enrolled in or using HCBS and eligible for and receiving Intensive Intervention Services.

(24) "Injury" means the result of an act or failure to act, that damages or hurts an individual or others.

(25) "Intensive Intervention Services (IIS)" means services for individuals with mental, emotional or behavioral disturbances that help these individuals remain safe in a community setting. Specific services are individualized and determined by the individual, their representative, and their IDT.

(26) "Interdisciplinary Team (IDT)" means the team of individuals that plans and ensures delivery of the services that the individual receives. At a minimum, the IDT must include individual, the individual's legal representative (if applicable), the case manager or Department designee, the Behavior Coordinator, RN, the individual's healthcare providers, and at least one direct care staff.

(27) "Involuntary Seclusion" has the meaning as defined in OAR 411-020-0002(1)(g).

(28) "Involuntary Move-Out" means a decision by a service provider to evict an individual, when the individual, or as applicable the legal or designated representative of the individual, has not given prior approval that complies with the requirements in OAR 411-054-0080.

(29) "Legal Representative" means a person who has the legal authority to act for an individual as defined in OAR 411-054-0005.

(30) "Licensed Medical Professional (LMP)" means the licensed physician or Registered Nurse Practitioner who either prescribes most of the individual's medications or who consults with the prescribing medical professional.

(31) "Mechanical Restraint" means any restrictive device (e.g., seatbelt, straitjacket (camisole), vest, or physical confinement) used to restrict a person's free movement.

(32) "Medication review" means a review conducted by a physician or prescriber that focuses on all existing or potential medications that may impact the individual's behaviors.

(33) "Person-Centered Service Plan (PSP)" means the written details of the supports, activities and resources required for an individual to achieve personal goals. The PSP is developed to articulate decisions and agreements made during a person-centered process of planning and information gathering. For Medicaid consumers, this is provided by the Case Manager and includes the need for IIC services and supports.

(34) "Physical Restraint" means any manual method which restricts freedom of movement or normal access of the individual to the individual's body. Any manual method includes physically restraining someone by manually holding someone in place.

(35) "Protection" means the necessary and immediate actions taken to prevent abuse or exploitation of an individual, to prevent self-destructive acts, or to safeguard the individual, property, and funds of an individual.

(36) "Safeguarding Intervention" means a manual physical restraint that requires an individually-based limitation, is defined in the behavior support plan, included in the IBL and is used as an emergency crisis strategy to protect an individual from:

(a) Harming themselves;

(b) Harming others; or

(37) "Service Plan" means the plan defined in OAR 411-054-0005 and also includes additional elements designed to meet the intensive needs of the IIC residents.

(38) "Service Provider" means a Department-approved provider authorized to provide IIS in a residential care facility to the eligible population.

(39) "These rules" means the rules in OAR chapter 411, division 055.

(40) "Unencumbered License" means a Residential Care Facility license that has not been sanctioned during the previous two years with either of the following:

(a) Any substantiation of Level 3 or Level 4 abuse.

(b) Any pending Notice of Denial, Suspension, Non-renewal or Revocation.

History

Statutory/Other Authority: ORS 409.050, 410.070, 443.450
Statutes/Other Implemented: ORS 409.050, 410.070, 443.400 - 443.455, 443.991
APD 20-2019, adopt filed 06/26/2019, effective 06/28/2019

Or. Admin. R. 411-055-0315 Application for Endorsement

(1) ENDORSEMENT REQUIRED. To operate as an IIC, a service provider must be endorsed under these rules.

(a) At least 60 days prior to the proposed effective date of the endorsement, a service provider must submit the following to the Department:

(A) Completed Intensive Intervention Community (IIC) application form;

(B) Standard Residency Agreement Template that meets OAR Chapter 411, Divisions 004 and 054; and

(C) Uniform Disclosure Statement (Form SDS 9098A), per OAR 411-055-0025(10) to the Department. The Department shall return incomplete forms to the service provider.

(b) The Department shall conduct an on-site inspection prior to the issuance of an endorsement to ensure the IIC complies with the physical plant requirements as described in OAR chapter 411, division 54 and OAR 411-055-0325.

(c) The endorsement shall be identified on the service provider's license and operated as a separate and distinct facility.

(2) ENDORSEMENT RENEWAL. Renewal for endorsement must be made using the RCF license renewal form, as required in OAR 411-054-0013(2), in addition to the IIC endorsement form at the time of the license renewal.

(3) RELINQUISHMENT OF ENDORSEMENT. The licensee must notify the Department in writing at least 60 days prior to the voluntary relinquishment of the endorsement. For voluntary relinquishment, the service provider must:

(a) Give all residents and their designated representatives 45-day notice.

(b) Submit a transition plan to the Department that demonstrates how the current residents shall be evaluated and assessed to reside in a setting that is not endorsed or the plan to move individuals to another HCBS setting. For Medicaid eligible individuals, the plan must include working with the affected individuals' case manager.

(d) Notify the Department when the relinquishment process has been completed.

(4) REVOCATION OF ENDORSEMENT. The Department may issue a notice of revocation of endorsement upon finding there is substantial failure to comply with these rules such that the health, safety, or welfare of residents is jeopardized.

History

Statutory/Other Authority: ORS 409.050, 410.070, 443.450
Statutes/Other Implemented: ORS 409.050, 410.070, 443.400 - 443.455, 443.991
APD 20-2019, adopt filed 06/26/2019, effective 06/28/2019

Or. Admin. R. 411-055-0320 Service Provider Requirements

The service provider shall be a Residential Care Facility that must:

(1) Have a history of an unencumbered license from the Department and meet the requirements of OAR 411-054-0016.

(2) Meet all Home and Community-Based Service requirements set forth under OAR chapter 411, division 4.

(3) Meet the staffing requirements described in OAR 411-055-0330.

(4) Comply with all the rules in OAR chapter 411, division 54.

History

Statutory/Other Authority: ORS 409.050, 410.070, 443.450
Statutes/Other Implemented: ORS 409.050, 410.070, 443.400 - 443.455, 443.991
APD 20-2019, adopt filed 06/26/2019, effective 06/28/2019

Or. Admin. R. 411-055-0325 Standards for Secure Settings

(1) A service provider must have Department-approved policies and procedures to ensure that individuals who are determined by their IDT to need a secure setting to retain maximum independence and protection of their rights.

(2) A service provider must comply with the following standards concerning exit doors:

(a) Locking devices used on exit doors, as approved by the Building Codes Agency and Fire Marshal having jurisdiction over the IIC, must be electronic and release when any of the following occurs:

(A) Upon activation of the fire alarm or sprinkler system.

(B) Power failure to the facility.

(b) IICs may not have entrance and exit doors that are closed with non-electronic keyed locks. A door with a keyed lock may not be placed between a resident and the exit.

(3) The issues creating the need for the IIC services must be addressed in the individual's Behavior Support Plan.

(4) Individuals who are determined to need supervision while in the community must have an individual service plan that includes desired community events with required supervision.

(5) The individual's need for this restriction must be reviewed by the IDT every month. The review must include discussion with the individual and include a review of the Individually Based Limitation as described in OAR 411-004-0040.

(6) Providers of HCBS must meet all of the requirements set forth under OAR chapter 411, division 4.

History

Statutory/Other Authority: ORS 409.050, 410.070, 443.450
Statutes/Other Implemented: ORS 409.050, 410.070, 443.400 - 443.455, 443.991
APD 20-2019, adopt filed 06/26/2019, effective 06/28/2019

Or. Admin. R. 411-055-0330 Staffing Requirements

(1) The service provider must have sufficient qualified staff to meet the specialized needs of the service group and the number of residents being served.

(2) Service provider must have qualified awake direct care staff unless specified by the Department through contractual requirements, sufficient in number to meet the 24-hour scheduled and unscheduled needs of each resident.

(a) At least two direct care staff must be present 24 hours a day, seven days a week who have participated in individual specific training or coaching necessary to implement individual behavior support, activity, and crisis plans.

(b) All direct care staff must have received Department-approved training in Safeguarding Intervention procedures.

(3) All direct care staff must meet all training requirements as described in OAR 411-055-0335 and have completed the approved curriculum trainings described in OAR 411-055-0340 and OAR 411-054-0070.

(4) The service provider must have a qualified Behavior Coordinator on staff or on contract. The Behavior Coordinator must:

(a) Meet the qualifications noted in OAR 411-046-0180.

(b) Make observations, gather information, and establish a data collection process with timeframes to evaluate specific safeguarding interventions and desired behavior outcomes of both direct care staff and the individual.

(A) Data collection should focus on the individual's and direct care staff persons' acquisition of positive skills, and subsequent decrease in the individual's incidents of challenging behaviors.

(B) Data must be documented in the resident record and shared with the IDT at the next review meeting.

(c) The time spent by the Behavior Coordinator must be sufficient to meet the specialized needs of the service group and the number of residents being served and to ensure that unexpected issues are addressed timely.

History

Statutory/Other Authority: ORS 409.050, 410.070, 443.450
Statutes/Other Implemented: ORS 409.050, 410.070, 443.400 - 443.455, 443.991
APD 20-2019, adopt filed 06/26/2019, effective 06/28/2019

Or. Admin. R. 411-055-0335 Direct Care Staff Qualifications

(1) In addition to specific requirements contained in OAR 411-054-0070, the service provider must have a training program that has a method to determine performance capability through a demonstration and evaluation process.

(2) The service provider:

(a) Must ensure that all direct care staff meet the background check requirements in OAR 411-054-0025(2).

(b) Must be able to respond appropriately to any emergency situation at any time with appropriate staffing.

(c) And all staff, including direct care staff, must not be listed on the Office of Inspector General's or General Service Administration's Exclusion Lists.

(d) Is responsible for the supervision, training, and overall conduct of staff. This duty includes ensuring that direct care staff have demonstrated satisfactory performance in any duty they are assigned and have completed all training required in 411-054-0070.

History

Statutory/Other Authority: ORS 409.050, 410.070, 443.450
Statutes/Other Implemented: ORS 409.050, 410.070, 443.400 - 443.455, 443.991
APD 20-2019, adopt filed 06/26/2019, effective 06/28/2019

Or. Admin. R. 411-055-0340 Staff Training and Annual In-Service Training

(1) Staff serving individuals in the IIC program must complete a Department-approved IIC curriculum training to address the mental, emotional and behavioral needs of the residents.

(2) If the direct care staff duties include preparing food, they must have a food handler's certificate as described in OAR chapter 411, division 54.

(3) All direct care staff must have current CPR and First Aid certification.

(a) Accepted CPR and First Aid courses must be provided or endorsed by the American Heart Association, the American Red Cross, the American Safety and Health Institute, or MEDIC First Aid.

(b) CPR or First Aid courses conducted online are only accepted by the Department when an in-person skills competency check is conducted by a qualified instructor endorsed by the American Heart Association, the American Red Cross, the American Safety and Health Institute, or MEDIC First Aid.

(4) All continuing education and training hours for direct care staff must be in addition to any hours required by the applicable licensing rules described in OAR chapter 411, division 54. In addition to all other training, every direct care staff must complete an annual in-service training of six hours of dementia care training as specified in OAR 411-054-0070.

(5) Requests for documentation verifying direct care staff participation in dementia pre-service and in-service training must be provided to the Department upon request.

(6) Behavior Coordinators are expected to receive, on an annual basis:

(a) A minimum of 12 hours of Department-approved continuing education in Positive Behavior Support; and

(b) A minimum of eight hours of training or training as needed to maintain certification to oversee or teach Department-approved Intensive Intervention Service procedures.

(7) Direct Care staff are expected to receive a minimum of four hours of continuing education necessary to provide services under these rules on an annual basis in addition to training required by licensure.

(8) Administrators, Behavior Coordinators, LMPs, RNs, and any other personnel who have direct contact with the resident must receive training on the Department-approved Safeguarding Intervention procedures.

History

Statutory/Other Authority: ORS 409.050, 410.070, 443.450
Statutes/Other Implemented: ORS 409.050, 410.070, 443.400 - 443.455, 443.991
APD 20-2019, adopt filed 06/26/2019, effective 06/28/2019

Or. Admin. R. 411-055-0345 Documentation Requirements

(1) Compliance with documentation standards in these rules, and completion of mandatory Department forms, is intended to ensure communication between case managers, service providers, and the Department.

(2) The documentation requirements in these rules do not replace or substitute for the documentation requirements in the:

(a) Licensing or Medicaid Program rules governing the home and community-based care provider, as applicable.

(b) Home and Community-Based Services and Settings and Person-Centered Service Planning Rules under OAR chapter 411, division 4.

(3) Any documents, plans, or forms that are reviewed or approved by the IDT, must be maintained per OAR chapter 411, division 54 and documented as described in these rules.

History

Statutory/Other Authority: ORS 409.050, 410.070, 443.450
Statutes/Other Implemented: ORS 409.050, 410.070, 443.400 - 443.455, 443.991
APD 20-2019, adopt filed 06/26/2019, effective 06/28/2019

Or. Admin. R. 411-055-0350 Communication and Notification

(1) The facility must notify the Department, the individual's case manager, legal representative, and the contract administrator immediately of:

(a) Any use of Safeguarding Interventions.

(b) An individual's change of condition that jeopardizes continued placement.

(d) Any report to APS.

(2) Use of Safeguarding Interventions that resulted in, or could have resulted in, harm to the individual or others must be reported to APS.

(3) Notification of other events.

(a) The facility must immediately notify the Department, service provider, and Behavior Coordinator of any life-threatening health and safety concerns. This communication may occur in person or by telephone.

(b) Behavior Coordinators must notify the case manager within 24 hours of the following:

(A) Life threatening health and safety concerns of an individual must be reported immediately, by telephone or in person.

(B) Concerns regarding the individual's placement. Concerns of this nature must be reported within one business day. The communication may occur by email or telephone.

(C) Any permanent reassignment of a Behavior Coordinator must be reported within five business days prior to onsite service delivery. This communication may occur by email or telephone.

(D) A service provider licensee or direct care staff person who is unwilling or unable to implement the Behavior Support Plan, after completion of coaching plans and service coordination activities. This communication may occur by email or telephone.

(c) Case managers and Behavior Coordinators are required to exchange information regarding changes in the individual's eligibility status, service location, or service needs during the duration of eligibility for IIC as soon as possible.

(d) All employees and contractors, including Behavior Coordinators, must report suspected abuse immediately as required by OAR 411-020-0002(1) to the APD or AAA office or by calling the Department's toll-free abuse reporting hotline.

History

Statutory/Other Authority: ORS 409.050, 410.070, 443.450
Statutes/Other Implemented: ORS 409.050, 410.070, 443.400 - 443.455, 443.991
APD 20-2019, adopt filed 06/26/2019, effective 06/28/2019

Or. Admin. R. 411-055-0355 Admittance Criteria

Intensive Intervention Services (IIS) may be provided to individuals who meet all the following requirements:

(1) The individual is at least age 18 prior to admission.

(2) The individual has been assessed by the IDT as needing Intensive Intervention Services during the person-centered service planning process.

(3) An individually-based limitation, specific to the individual, has been justified and documented in the individual's person-centered service plan by the person-centered service plan coordinator, as outlined in OAR 411-004-0030.

History

Statutory/Other Authority: ORS 409.050, 410.070, 443.450
Statutes/Other Implemented: ORS 409.050, 410.070, 443.400 - 443.455, 443.991
APD 20-2019, adopt filed 06/26/2019, effective 06/28/2019

Or. Admin. R. 411-055-0360 Approval for Services

(1) Each individual's IDT must authorize IIS.

(a) The IDT must review the appropriateness of continued IIS to ensure the service plan is working to meet the needs of the individual. This review must occur weekly for one month after initial admission into the program, then monthly for the next three months, and then quarterly, unless there's a change of condition as defined in 411-054-0005(14), to facilitate the individual's stabilization period.

(b) Frequency of the IDT reviews may be increased depending on the individual's response to the current Behavior Support Plan.

(2) IIS must be provided by direct care staff who meet the training requirements in 411-055-0340.

(3) For Medicaid-eligible individuals, service authorization and payment are defined in OAR Chapter 411, Division 27.

History

Statutory/Other Authority: ORS 409.050, 410.070, 443.450
Statutes/Other Implemented: ORS 409.050, 410.070, 443.400 - 443.455, 443.991
APD 20-2019, adopt filed 06/26/2019, effective 06/28/2019

Or. Admin. R. 411-055-0365 Behavioral Interventions

(1) Disclosures.

(a) The service provider must disclose the facility's policies and practices, as identified in the Residency Agreements, to a prospective individual or the prospective individual's legal representative.

(b) The individual, or their legal representative, must agree to the limitations and interventions prior to admission.

(2) Person-Centered Service Plans (PSP). The manner and degree of allowable behavior interventions must be consistent with the individual's Behavior Support Plan.

(a) The provider's initial assessment shall be initiated as part of the screening process and completed within one week of the admission date.

(b) Reassessment must be provided:

(A) Within one month of the admission date.

(B) At least four times a year, or more frequently if:

(i) The individual receives a Safeguarding Intervention;

(ii) The individual's need as noted at monthly IDT service plan meeting have changed and require reassessment; or

(iii) Direct care staff implementing the Behavior Support Plan give feedback that a reassessment should be completed.

(A) Have an established time limit for periodic review to determine if the limitation should be terminated or remains necessary.

(B) Be supported by a specific need and documented in the person-centered service plan by completing and signing a program approved form documenting the consent to the appropriate limitation.

(3) The Behavior Support Plan shall identify direct care staff intervention strategies.

(4) For each individual, the initial Behavior Support Plan:

(a) Must be reviewed and approved by the IDT and Department staff.

(b) Must have a subsection of the Behavior Support Plan identified as a Crisis Plan. The Crisis Plan must include:

(A) Identification of triggers or indicators of escalation.

(B) Procedures and strategies to defuse, de-escalate, and minimize the likely behaviors that could require a Safeguarding Intervention.

(D) Whether or not the individual has received IDT and Department authorization for Safeguarding Interventions.

(5) Use of any Safeguarding Interventions for an adult is permitted in an IIC program if the Behavior Coordinator approved the use of the Safeguarding Interventions to be used in a Behavior Support Plan.

(6) A Behavior Coordinator may only include a safeguarding intervention in the plan when all of the following conditions are met:

(a) The safeguarding intervention is directed for use only:

(A) As strategy for addressing emergency crises.

(B) For as long as the situation presents imminent danger to the health or safety of the individual or others.

(b) The Behavior Coordinator has weighed and documented in the BSP the potential risk of harm to an individual from the safeguarding intervention against the potential risk of harm from the behavior.

(c) The Safeguarding Intervention is in accordance with a Department -approved behavior intervention curriculum or the behavior coordinator has secured written authorization from the curriculum's oversight body to modify the safeguarding intervention. A copy of the authorization to modify a safeguarding intervention must be attached individual's service plan.

(d) The Behavior Coordinator acknowledges that prior to the implementation of any safeguarding intervention, an individual must have an individually-based limitation for restraint in accordance with OAR 411-004-0040.

(7) The Department does not authorize a Safeguarding Intervention that includes, but is not limited to, any of the following characteristics:

(a) Abusive, as defined in OAR 411-020-0002(1)(h).

(b) Aversive.

(d) For convenience.

(e) Disciplinary.

(f) Demeaning.

(g) Mechanical.

(h) Prone or supine restraint.

(i) Pain compliance.

(j) Punishment.

(k) Retaliatory.

(8) When a service plan is newly developed or revised and includes a Safeguarding Intervention, the plan must include a summary of all of the following:

(a) The nature and severity of imminent danger requiring a safeguarding intervention.

(b) A history of unsafe or challenging behaviors exhibited by the individual.

(c) A description of the training and characteristics required for the designated person applying the safeguarding intervention.

(d) Less intrusive measures determined to be ineffective or inappropriate for the individual.

(9) A qualified staff applying safeguarding interventions must be trained on the use of safeguarding interventions by a person who is appropriately certified in Department approved behavior intervention curriculum.

(10) A behavior coordinator must only use safeguarding interventions the behavior coordinator is certified to use, and that direct care staff have been trained to provide.

(11) A Safeguarding Intervention may be used when:

(a) The Safeguarding Intervention is used as part of the Crisis Plan;

(b) Less restrictive alternatives have been tried and evaluated and documented before the use of the Safeguarding Interventions;

(d) The intervention is used for the shortest time possible; and

(e) The Safeguarding Intervention does not include excessive use of force.

(12) The manner and degree of allowable behavior interventions, including an appropriate level of Safeguarding Interventions for the individual, must be included in the individual's Behavior Support Plan. Any force used must be consistent with the Behavior Support Plan and may not be excessive.

(13) Safeguarding Interventions, if used, may only be used as a de-escalating intervention to minimize risk or harm to the individual or others and as an option of last resort. Restraints may only be used for the shortest time possible and only until the Behavior Coordinator evaluates the behavior and develops care plan interventions to meet the individual's needs.

(14) The use of restraints may never be used for convenience of the provider or to discipline the individual.

(15) Use of Safeguarding Interventions may be considered abuse if a protective services investigation determines.

(a) A Behavioral Consultant has not conducted a thorough assessment before implementing a physician's direction for use of Safeguarding Interventions.

(b) Less restrictive alternatives have not been evaluated before the use of Safeguarding Interventions.

(d) Is for an excessive time or uses excessive force.

(16) In an emergency or short-term situation, monitored separation from other residents in the resident's room may be permitted, if used for a limited period of time. Separation may only be used when:

(a) It as part of the Behavior Support Plan.

(b) Is included as part of their individually-based limitation.

(d) Implemented by direct care staff that have successfully completed the Department-approved training.

(e) Used as a de-escalating intervention until the Behavior Coordinator evaluates the behavior and develops a new BSP with revised interventions to meet the individual's needs. The Behavior Coordinator must evaluate the individual and the BSP no more than 30 minutes after the separation occurs.

(f) The individual is monitored no less frequently than every 10 minutes while separated from others.

(g) The individual needs to be secluded from certain areas of the facility because their presence in a specific area poses a risk to health or safety of the individual or another. However, such actions shall be considered abuse if an APS investigation determines:

(A) A Behavioral Consultant has not conducted a thorough assessment before implementing any separation.

(B) Less restrictive alternatives have not been evaluated before the use of any separation.

(D) Separation is for an excessive time or uses excessive force.

(17) The IDT must meet on a monthly basis, or more frequently if needed, to meet the requirements in these rules. Participants may attend via telephone or secured video conferencing.

History

Statutory/Other Authority: ORS 409.050, 410.070, 443.450
Statutes/Other Implemented: ORS 409.050, 410.070, 443.400 - 443.455, 443.991
APD 20-2019, adopt filed 06/26/2019, effective 06/28/2019

Or. Admin. R. 411-055-0370 Emergency Medications

(1) Service providers must have Department-approved policies and procedures regarding the use of emergency medications. Documentation must exist and be available when requested, stating that all direct care staff have reviewed these procedures on an annual basis. Policies must include, but are not limited to the following:

(a) Emergency medications must never be given to discipline an individual or for the convenience of the direct care staff.

(b) Emergency medications must never be given to individuals until other interventions have been attempted.

(c) Individuals and their legal representatives must be informed of the service provider's policies and procedures regarding emergency medications before admission.

(d) The provider should have established policies to ensure that emergency medications are removed or discontinued as soon as possible.

(2) Prior authorized PRN (as needed) Medication.

(a) The Licensed Medical Practitioner who conducts the required Psychotropic Medication Review and who is a member of the individual's IDT can write a PRN order for a medication to be provided as part of the individual's prior authorized intensive intervention Crisis Plan or Behavior Support Plan if the following conditions are documented:

(A) The use of the medication is intended to reduce the need for and duration of the Safeguarding Interventions.

(B) The individual must accept the medication voluntarily without the need for the Safeguarding Interventions.

(C) The PRN. order must include specific behavior triggers necessitating the use of medication and instructions regarding frequency of monitoring, named side effects, and reporting procedures.

(D) Involuntary medications may be included as a PRN. only if a RN or LMP is onsite and have followed the steps listed in section (3) of this rule.

(b) Failure to comply with these requirements may be considered abuse if a protective services investigation determines the required steps and documentation have not occurred.

(3) Involuntary Medications.

(a) Individuals in IIC may have involuntary medications prescribed and administered only if these medications are prescribed by a physician, agreed to beforehand by the individual or the individual's legal representative, are included in the individually-based limitation, and administered by a trained nurse.

(b) Administering an involuntary medication during implementation of the Safeguarding Interventions may be permitted if the following conditions are documented:

(A) The use of this medication is intended to reduce the duration of the episode or is deemed to be more beneficial to the individual than a Safeguarding Interventions.

(B) A RN or LMP is onsite to document the order and administer the medication.

(C) The RN or LMP must document justification of why administration of the medication protected the individual's health and safety and provide and document any clinical assessments required by their licensure.

(D) The RN or LMP must remain onsite and monitor the individual's response to the involuntary medication for a minimum of one hour after administration, or longer if needed to ensure the individual's health and safety.

(E) The RN or LMP must provide documented instructions to direct care staff regarding potential side effects, adverse reactions, and reporting requirements for the 24-hours following the administration of an involuntary medication.

(F) The Behavior Coordinator and the administrator must be informed within one hour of the incident.

(G) The individual's Behavior Support Plan and medication record must be reviewed and updated within 48 hours of the incident.

(H) Members of the individual's IDT must be informed of the incident within 24 hours and be provided with all relevant documentation.

(I) All uses of involuntary medications must be reported to the Contract Administrator and the Service Provider within 48 hours of the incident.

(J) If abuse, as defined by OAR chapter 411, division 20, is suspected, staff must immediately report abuse, as required by OAR chapter 411, division 54.

(c) A of any involuntary medication administration must be reviewed and documented. The review must include an examination of all prescriber's orders, related administration records, and consultation with a pharmacist and nurse.

(d) Failure to comply with these requirements may be considered abuse if so determined by a protective services investigation.

History

Statutory/Other Authority: ORS 409.050, 410.070, 443.450
Statutes/Other Implemented: ORS 409.050, 410.070, 443.400 - 443.455, 443.991
APD 20-2019, adopt filed 06/26/2019, effective 06/28/2019

Division 57 ENDORSED MEMORY CARE COMMUNITIES

Or. Admin. R. 411-057-0100 Temporary rule language in effect until 12/27/2026. Statement of Purpose

The purpose of the rules in OAR chapter 411, division 057 is to establish standards for the endorsement of memory care communities. Memory care communities provide specialized services in a secured environment for individuals with dementia. These rules are designed to ensure that residents living in memory care communities have positive quality of life, consumer protection, and person directed care. Resident’s rights, dignity, choice, comfort, and independence are promoted in this setting. The endorsement does not constitute a recommendation of any endorsed memory care community by the Oregon Department of Human Services, Aging and People with Disabilities Program.

History

Statutory/Other Authority: ORS 410.070 & 443.886
Statutes/Other Implemented: ORS 443.886
APD 22-2026, temporary amend filed 08/04/2026, effective 08/11/2026 through 12/27/2026
APD 18-2026, temporary suspends temporary APD 13-2026, filed 07/01/2026, effective 07/01/2026 through 12/27/2026
APD 13-2026, temporary amend filed 06/23/2026, effective 07/01/2026 through 12/27/2026
APD 24-2020, amend filed 06/20/2020, effective 06/24/2020
APD 52-2019, temporary amend filed 12/20/2019, effective 01/01/2020 through 06/28/2020
SPD 23-2010, f. 9-14-10, cert. ef. 11-1-10

Or. Admin. R. 411-057-0110 Temporary rule language in effect until 12/27/2026. Definitions

Unless the context indicates otherwise, the following definitions and the definitions in OAR 411-054-0005 relating to Residential Care and Assisted Living Facilities and OAR 411-085-0005 relating to Nursing Facilities apply to these rules.

(1) "Advertise" means to make publicly and generally known, usually by printed notice, broadcast, verbal marketing, website, or electronic communication.

(2) "Alzheimer's Disease" means a type of dementia that gradually destroys an individual's memory and ability to learn, reason, make judgments, communicate, and carry out daily activities.

(3) "Applicant" means the person, persons, or entity, required to complete a facility application for an endorsement. Applicant includes a sole proprietor, each partner in a partnership, and each member in a limited liability company, corporation, or entity that owns the residential care facility, assisted living facility, or nursing facility business. Applicant also includes the sole proprietor, each partner in a partnership, and each member in a limited liability company, corporation, or entity that operates the residential care facility, assisted living facility, or nursing facility on behalf of the facility business owner.

(4) “Approved Dementia Care Training” means a dementia training curriculum for residential care and assisted living facility staff approved by an entity selected by the Department as an approving entity pursuant to a Request for Application (RFA) process.

(5) "Assisted Living Facility" means assisted living facility as defined in OAR 411-054-0005.

(6) “Competency” means competency as defined in OAR 411-054-0005.

(7) “Competency Assessment” means competency as defined in OAR 411-054-0005.

(8) "Dementia" is a syndrome characterized by a progressive decline in cognitive functioning severe enough to interfere with an individual’s ability to perform daily activities. Dementia may affect an individual's memory, ability to think, reason, communicate, perform complex tasks, and move. Symptoms may also include changes in personality, mood, and behavior. There are several causes and types of dementia including but not limited to:

(a) Alzheimer’s disease;

(b) Vascular dementia;

(d) Frontal-temporal lobe dementia;

(e) Wernicke-Korsakoff Syndrome

(f) Huntington’s disease; and

(g) Creutzfeldt-Jakob disease.

(9) "Dementia Trained Staff" means any employee who has completed the minimum training requirements and has demonstrated competency in supporting individuals with dementia.

(10) "Department" means the Oregon Department of Human Services (ODHS).

(11) “Designated representative” means an adult chosen by the resident or the resident’s legal representative, to participate in service planning, receive information, support communication, or otherwise assist the resident in matters related to services provided by the facility.

(a) A designated representative:

(A) Must be authorized by the resident or, as applicable, the legal representative.

(B) May be a family member, friend, advocate, or other person chosen by the resident.

(b) A resident is not required to appoint a designated representative.

(c) Authorization of a designated representative remains in effect until modified or withdrawn by the resident or legal representative.

(d) The designated representative may be the same individual as the resident’s legal representative or designated contact person.

(12) "Direct Care Staff" means a facility employed person whose primary responsibility is to provide personal care services to residents. These personal care services may include:

(a) Medication administration;

(b) Resident-focused activities;

(d) Supervision and support of residents; and

(e) Serving meals, but not meal preparation.

(13) "Disclosure" means the written information the facility is required to provide to consumers to enhance the understanding of memory care community services, costs, and operations.

(14) "Division" means the Oregon Department of Human Services, Office of Aging and People with Disabilities Program (APD).

(15) “Egress control system” means a door or gate locking system installed in accordance with the Oregon Fire Code and Oregon Structural Specialty Code that restricts or controls exit from a memory care community, including controlled egress systems as permitted by those codes.

(16) “Elopement” means a memory care resident leaves the secured memory care area unsupervised, without the facility’s knowledge.

(17) "Emergency Situation" means a disruption to normal care and services caused by an unforeseen occurrence beyond the control of the licensee whether natural, technological, or human-caused where staff who are trained as required in these rules are not available.

(18) “Endorsed Memory Care Community” means a special care unit in a designated, separated area for residents with Alzheimer’s disease or other forms of dementia that is locked or secured to prevent or limit access by a resident outside the designated or separated area. For purposes of these rules an endorsed memory care community will be referred to as a memory care community.

(19) "Endorsement" means the community has met the requirements to provide specialized services in a memory care community and the requirements for the community's underlying license. An endorsement does not constitute a recommendation of any memory care community by the Division.

(20) "Facility" for the purpose of these rules, means a nursing facility, residential care facility, or assisted living facility.

(21) “Independent family council” means a self-directed group of residents, family members of residents, or designated representatives who may meet in private, either in person or online, to identify, discuss, and collectively present concerns, grievances, or recommendations to facility administration regarding any aspect of facility operations affecting residents, for the purpose of seeking improvements in care, services, safety and quality of life.

(22) "Interdisciplinary Team" means persons including the resident, community staff, family members, healthcare providers, and case managers as applicable, who support the resident with direct care, nursing, activities, nutrition, and case management.

(23) "Licensee" means the entity that owns the residential care, assisted living, or nursing facility business, and to whom a residential care, assisted living, or nursing facility license has been issued.

(24) "Management" or "Operator" means the entity possessing the right to exercise operational or management control over, or directly or indirectly conduct, the day-to-day operation of a facility.

(25) "Nursing Facility" means a nursing facility as defined in OAR 411-085-0005.

(26) “Orientation” means the training that all employees must complete, as required in OAR 411-054-0070, before performing any job duties.

(27) "Person-centered Care" is an approach that supports a resident to direct their own care by focusing on what is important to them while taking into account all the factors that impact their life. Person-centered care promotes a positive relationship between the resident and staff which is accomplished by staff being knowledgeable about the resident's life story, routines, and habits, and incorporating that information into the individual's daily care and activities.

(28) "Pre-Service Training" means training that must be completed prior to staff independently providing care and services to residents. Pre-service training addresses specific dementia topics as well as other topics related to resident care. Training may include various methods of instruction, for example, classroom style, web-based training, video training, one-to-one or mentoring training, or a combination thereof.

(29) "Remodel" means a renovation or conversion of a building that requires a building permit and meets the criteria for review by the Facilities Planning and Safety Program, Oregon Health Authority, as required by OAR 333-675-0000

(30) "Residency Agreement" means the information required to be disclosed prior to admission to a residential care or assisted living facility as described in OAR 411-054-0025(10).

(31) "Resident" as used in these rules, means any individual with Alzheimer's disease or other dementia who lives in a memory care community.

(32) "Residential Care Facility" means residential care facility as defined in OAR 411-054-0005.

(33) "These Rules" mean the rules in OAR chapter 411, division 057.

(34) "Universal Worker" means a universal worker as defined in OAR 411-054-0005.

History

Statutory/Other Authority: ORS 410.070 & 443.886
Statutes/Other Implemented: ORS 443.886
APD 22-2026, temporary amend filed 08/04/2026, effective 08/11/2026 through 12/27/2026
APD 18-2026, temporary suspends temporary APD 13-2026, filed 07/01/2026, effective 07/01/2026 through 12/27/2026
APD 13-2026, temporary amend filed 06/23/2026, effective 07/01/2026 through 12/27/2026
APD 24-2020, amend filed 06/20/2020, effective 06/24/2020
APD 52-2019, temporary amend filed 12/20/2019, effective 01/01/2020 through 06/28/2020
SPD 23-2010, f. 9-14-10, cert. ef. 11-1-10

Or. Admin. R. 411-057-0120 Application for Endorsement

(1) ENDORSEMENT REQUIRED. Any residential care, assisted living, or nursing facility that offers or provides care to residents with dementias in a memory care community must obtain an endorsement on its facility license.

(2) APPLICATION. At least 60 days prior to the anticipated endorsement, the applicant must submit to the Department a completed Memory Care Community Endorsement Application (form APD 940). The Department shall return incomplete applications to the applicant.

(3) FEE. The non-refundable endorsement application fee is due upon receipt of the application for an initial endorsement and whenever the facility’s license and endorsement are renewed. Endorsement application fees are in addition to fees required for facility licensure. Fees shall be as follows:

(a) $50 for each facility with a total memory care community endorsed capacity of 16 or fewer residents;

(b) $75 for each facility with a total memory care community endorsed capacity of 17 to 50; or

(4) The applicant must also include the following with the initial application and fee:

(a) Memory Care Community Uniform Disclosure Statement (form SDS 9098 MC);

(b) Employee training curricula;

(d) Floor plan of the memory care community;

(e) Residency or admission agreement;

(f) Copy of the service or care planning tool; and

(g) Copies of brochures or advertisements that are used to advertise the facility and the facility's services.

(5) DEMONSTRATED CAPACITY. The applicant must demonstrate to the satisfaction of the Department, the ability to provide services in a manner that is consistent with the requirements of these rules.

(a) The Department shall consider the following criteria including but not limited to:

(A) The experience of the applicant in managing a memory care community or previous long-term care experience; and

(B) The compliance history of the applicant for endorsement or management company in the operation of any care facility licensed, certified, or registered under federal or state laws.

(b) If the applicant does not have experience in the operation of a memory care community, the applicant must employ a consultant or management company for at least the first six months of operation.

(A) The consultant or management company must have experience in dementia care operations and must be approved by the Department.

(B) The applicant must implement the recommendations of the consultant or management company or present an acceptable plan to the Department to address the consultant’s identified concerns.

(6) The Department shall conduct an on-site inspection prior to the issuance of an endorsement to ensure the memory care community is in compliance with the physical plant requirements as outlined in these rules.

(7) The endorsement shall be identified on the facility’s license.

(8) ENDORSEMENT RENEWAL. Renewal for endorsement must be made at the time of the renewal for the facility's license (form APD 940).

(9) RELINQUISHMENT OF ENDORSEMENT. The licensee must notify the Department in writing at least 60 days prior to the voluntary relinquishment of the endorsement of a memory care community. For voluntary relinquishment, the facility must:

(a) Give all residents and their designated representatives a 45-day notice. The notice must include:

(A) The proposed effective date of the relinquishment;

(B) Changes in staffing;

(D) Staff training that shall occur when the relinquishment becomes effective.

(b) Submit a transitional plan to the Department that demonstrates how the current residents shall be evaluated and assessed to reside in a memory care community that is not endorsed and is unsecured or would require move-out or transfer to other settings;

(c) Change in each resident’s service or care plans as appropriate to address any needs the residents may have with the transition;

(d) Notify the Department when the relinquishment process has been completed; and

(e) Revise advertising materials and disclosure information to remove any reference that the facility is an endorsed memory care community.

History

Statutory/Other Authority: ORS 410.070 & 443.886
Statutes/Other Implemented: ORS 443.886
APD 24-2020, amend filed 06/20/2020, effective 06/24/2020
APD 52-2019, temporary amend filed 12/20/2019, effective 01/01/2020 through 06/28/2020
SPD 23-2010, f. 9-14-10, cert. ef. 11-1-10

Or. Admin. R. 411-057-0130 Advertising of a Memory Care Community

(1) An applicant may not advertise as a memory care community until the applicant has obtained an endorsement from the Department. A prospective memory care community may advertise if they have stated their intent to be endorsed and are in the initial endorsement process.

(2) A memory care community with a valid endorsement may advertise that it has an endorsement. However, the advertising materials may not imply or state that the Department recommends or supports a specific memory care community.

(3) All advertising material must be truthful and must not include or use coercive or misleading information about the endorsement of the memory care community.

(4) Upon the determination that a non-endorsed memory care community implies or advertises that they have an endorsement, the Department shall send a notice to the licensee to cease the advertising immediately. Failure to comply may result in a civil penalty as outlined in OAR 411-057-0190.

History

Statutory/Other Authority: ORS 410.070 & 443.886
Statutes/Other Implemented: ORS 443.886
APD 24-2020, amend filed 06/20/2020, effective 06/24/2020
APD 52-2019, temporary amend filed 12/20/2019, effective 01/01/2020 through 06/28/2020
SPD 23-2010, f. 9-14-10, cert. ef. 11-1-10

Or. Admin. R. 411-057-0140 Temporary rule language in effect until 12/27/2026. Responsibilities of Administration

(1) The licensee is responsible for the operation of the memory care community and the provision of person-centered care that promotes each resident’s dignity, independence, safety, and comfort. This includes the supervision, training, and overall conduct of the staff.

(2) The licensee of a memory care community must comply with both the licensing rules for the facility and OAR chapter 411, division 57.

(3) The administrator of the memory care community must complete and document that at least 10 hours of their required annual continuing educational requirements, as required by the licensing rules of the facility, relate to the care of individuals with dementia. Continuing education credits must be obtained through Department approved sources which may include college courses, preceptor credits, self-directed activities, course instructor credits, corporate training, in-service training, professional association trainings, web-based trainings, correspondence courses, telecourses, seminars, and workshops.

(4) The endorsed memory care community must provide a Department designated Memory Care Community Uniform Disclosure Statement (form APD 9098 MC) to each person who requests information about the memory care community.

(5) In addition to the policies and procedures required in the licensing rules for the facility, the memory care community licensee must develop and implement policies and procedures that address:

(a) Person-centered The philosophy governing how services are provided and how the memory care community implements person-centered care in daily operations;

(b) Person-centered The evaluation of behavioral symptoms and the design of person-centered supports for service plans;

(c) Practices that support safe wandering while preventing elopement, including the use of environmental design, supervision, and individualized interventions appropriate to residents with dementia; and

(d) The assessment of residents regarding the use and effects of medications, including psychotropic medications;

(e) The use of supportive devices with restraining qualities;

(f) The staffing plan for the memory care community;

(g) Staff training specific to dementia care;

(h) The development and implementation of the community’s life enrichment program, including how activities reflect the evaluated needs, abilities, and preferences of residents living in the memory care community;

(i) The development and implementation of family support programs, including how the community assists families to remain engaged;

(j) The limitation of public address and intercom systems to emergencies and evacuation drills only;

(k) The coordination of transportation and assistance to and from outside medical appointments;

(l) The safekeeping of residents’ possessions. The policy required under this subsection must be provided to each resident and the resident's designated representative at the time of move-in and quarterly.

(m) Elopement response and notification.

(A) The licensee must develop and implement written policies and procedures that clearly define the actions staff must take when a resident has eloped from the memory care community.

(B) Elopement policies and procedures must include, at a minimum:

(i) Immediate actions staff must take upon discovering or suspecting that a resident has eloped, including supervision of other residents and search procedures within and around the community;

(ii) Internal notification and escalation procedures, including clear designation of staff roles and responsibilities and timely notification to the administrator or designee;

(iii) Timeframes for elopement notifications:

(I) Require immediate notification of the local law enforcement agency or 911 after a preliminary search of endorsed memory care community;

(II) Require notification to the Department and the Office of the Long-Term Care Ombudsman as soon as practicable, but no later than 24 hours after elopement.

(iv) Require notification of the resident’s designated representative consistent with the resident’s service plan and any documented preferences, but no later than 24 hours after the resident is discovered or suspected to have eloped.

(v) Procedures to ensure continuity of care and support for the resident upon return, including evaluation of physical and emotional status and review of the resident’s care plan.

(vi) Documentation requirements, including a record of the date and time of actions taken, notifications made, and follow-up measures implemented.

(vii) Procedures to reduce elopement risk during visitor access, deliveries, contracted services, maintenance activities or other periods of increased resident-accessible exit use.

(C) Elopement response policies must be specific to residents with dementia and address risks related to cognition, communication, mobility, and behavioral symptoms, including but not limited to wandering and exit-seeking behaviors.

(D) Following an elopement or missing resident incident, the licensee must ensure a review is conducted to evaluate the timeliness, effectiveness of the response and identify any needed changes to policies, staffing practices, training, or environmental controls.

(E) When egress control systems release due to power failure, fire alarm activation, or other system interruption, the memory care community must implement its elopement prevention procedures until systems are restored.

(n) Elopement and egress control training, as required by OAR 411-057-0155(2)(D)(iii).

(A) The licensee must ensure that all staff assigned to the memory care community receive training and demonstrate ongoing competency in:

(i) Elopement response and notification procedures; and

(ii) The egress control systems in use at the community.

(B) Training must include:

(i) Staff responsibilities and procedures when a resident is suspected or confirmed to have eloped, including search procedures, internal escalation, resident supervision, emergency response, and required notifications;

(ii) How the egress control systems operate during normal conditions;

(iii) Staff responsibilities for monitoring, responding to alarms, and preventing elopement;

(iv) Procedures for manual override or release during emergencies, evacuations, or power failure; and

(v) Coordination between staff roles during an elopement response or emergency event.

(C) Training must be documented and provided upon hire, when systems or procedures are modified, and as part of ongoing staff training.

(D) Following an elopement or system failure event, the licensee must ensure that egress control training is reviewed and updated, and that additional staff training is provided when the post-event review identifies gaps in knowledge, implementation, or system operation.

(6) The licensee must ensure that each administrator assigned responsibility for an endorsed memory care community:

(a) Has completed and maintains compliance with the administrator qualification, licensure, and continuing education requirements applicable to the facility’s license type, including but not limited to:

(A) OAR 411-054-0065 for assisted living facilities and residential care facilities; or

(B) OAR chapter 853, division 30 for nursing facilities; and

(b) Completes and documents Department-approved training specific to memory care operations, dementia-related risk factors, and the physical design, environment, and safety requirements of this division.

(c) Nothing in this subsection alters, replaces or expands administrator licensure, authorization, or examination requirements established under other applicable statutes or administrative rules.

(7) The administrator is responsible for implementing the policies and procedures required under this rule and for ensuring day-to-day operational compliance with the memory care community endorsement requirements within the scope of the administrator’s authority. Nothing in this subsection relieves the licensee of responsibility for compliance with this division or for ensuring that the administrator has the authority, resources and training necessary to carry out these responsibilities.

History

Statutory/Other Authority: ORS 410.070 & 443.886
Statutes/Other Implemented: ORS 443.886
APD 22-2026, temporary amend filed 08/04/2026, effective 08/11/2026 through 12/27/2026
APD 18-2026, temporary suspends temporary APD 13-2026, filed 07/01/2026, effective 07/01/2026 through 12/27/2026
APD 13-2026, temporary amend filed 06/23/2026, effective 07/01/2026 through 12/27/2026
APD 24-2020, amend filed 06/20/2020, effective 06/24/2020
APD 52-2019, temporary amend filed 12/20/2019, effective 01/01/2020 through 06/28/2020
SPD 23-2010, f. 9-14-10, cert. ef. 11-1-10

Or. Admin. R. 411-057-0150 Staffing Requirements

STAFFING REQUIREMENTS. The facility must provide residents with dementia trained staff who have been instructed in the person centered care approach. Prior to providing care and services to residents all staff must receive training as required in OAR 411-057-0155.

(1) Staffing levels must comply with the licensing rules of the facility and be sufficient to meet the scheduled and unscheduled needs of residents. Staffing levels during nighttime hours shall be based on the sleep patterns and needs of residents.

(2) In an emergency situation when trained staff are not available to provide services, the facility may assign staff who have not completed the required training in accordance with this rule. The particular emergency situation must be documented and must address:

(a) The nature of the emergency;

(b) How long the emergency lasted; and

History

Statutory/Other Authority: ORS 410.070 & 443.886
Statutes/Other Implemented: ORS 443.886
APD 24-2020, amend filed 06/20/2020, effective 06/24/2020
APD 52-2019, temporary amend filed 12/20/2019, effective 01/01/2020 through 06/28/2020
SPD 23-2010, f. 9-14-10, cert. ef. 11-1-10

Or. Admin. R. 411-057-0155 Staff Training Requirements

(1) A memory care community must ensure staff who provide support to residents with dementia have a basic understanding and fundamental knowledge of the residents' emotional and unique health care needs prior to providing services to residents. The training requirements for staff who work in memory care communities are described in the following sections.

(2) ALL STAFF TRAINING REQUIREMENTS. All staff who work in memory care communities licensed as residential care facilities or assisted living facilities must complete the following:

(a) Orientation as required in OAR 411-054-0070(3) before performing any job duties.

(b) Pre-service dementia care training as required before independently providing personal care or other services. The dementia care training must address these topics:

(A) Education on the dementia disease process, including the progression of the disease, memory loss and psychiatric and behavioral symptoms.

(B) Techniques for understanding, communicating and responding to distressful behavioral symptoms; including but not limited to, reducing the use of antipsychotic medications for non-standard uses when responding to distressful behavioral symptoms.

(D) Information concerning specific aspects of dementia care and ensuring safety of residents with dementia including, but not limited to, how to:

(i) Identify and address pain;

(ii) Provide food and fluid;

(iii) Prevent wandering and elopement;

(iv) Use a person-centered approach.

(c) Additional pre-service training topics that must be completed before independently providing personal care to residents:

(A) Environmental factors that are important to resident’s well-being (e.g. noise, staff interactions, lighting, room temperature, etc.);

(B) Family support and the role the family may have in the care of the resident;

(C) How to recognize behaviors that indicate a change in the resident’s condition and report behaviors that require on-going assessment.

(3) DIRECT CARE STAFF TRAINING REQUIREMENTS. Direct care staff must be directly supervised by a qualified staff person until they have successfully demonstrated satisfactory performance in any task assigned in the provision of individualized resident services. In addition to training required for all staff as described in paragraph (2):

(a) Before independently providing personal care or other services to residents, direct care staff must complete training on:

(A) How to provide personal care to a resident with dementia, including an orientation to the resident and the resident’s service plan, as required in OAR 411-054-0070(4).

(B) The use of supportive devices with restraining qualities in memory care communities.

(b) Within 30 days after hire, direct care staff must complete training as outlined in OAR 411-054-0070(5).

(c) Direct care staff who work in memory care communities licensed as residential care facilities or assisted living facilities must complete a total of 16 hours of in-service training annually. The six hours of annual dementia care training required pursuant to OAR 411-054-0070(6) may be included in the 16 hours of in-service training. Annual in-service hours required of each staff are due by the anniversary date of that person’s hire. All completed trainings must be documented by the facility.

(4) NURSING FACILITY STAFF. Staff who work in memory care communities licensed as nursing facilities must complete the following:

(a) Orientation as outlined in OAR 411-086-0310, 42 CFR § 483.95 (F 943).

(b) Pre-service dementia care training as outlined in paragraphs (2)(b) and (c) and paragraph (3)(a) of this section.

(c) A total of 16 hours of annual in-service training must be completed by direct care staff only. Four of the 16 hours must be dementia care training and may be included in the 16 hours of in-service training. Annual in-service hours required of each staff are due by the anniversary date of that person’s hire. All completed trainings must be documented by the facility.

(5) Persons providing or overseeing the training of staff must have experience and knowledge in the care of individuals with dementia.

(6) The memory care community must have a method for determining and documenting each staff person’s competency of training in accordance with the licensing rules. All training must be documented and available to the Department upon request.

History

Statutory/Other Authority: ORS 410.070, 443.886
Statutes/Other Implemented: ORS 443.886
APD 24-2020, adopt filed 06/20/2020, effective 06/24/2020
APD 52-2019, temporary adopt filed 12/20/2019, effective 01/01/2020 through 06/28/2020

Or. Admin. R. 411-057-0160 Temporary rule language in effect until 12/27/2026. Resident Services in a Memory Care Community

(1) Individuals with a diagnosis of dementia who require support for the symptoms of dementia for physical safety or physical or cognitive function may reside in a memory care community. A memory care community may also admit an individual who does not have a diagnosis of dementia when:

(a) The individual seeks to reside with a spouse, partner, or companion who has dementia;

(b) The facility completes an evaluation demonstrating the individual can safely reside in a secured memory care environment and does not pose a risk to residents with dementia;

(d) The facility documents how the individual’s presence will not interfere with meeting the needs of residents with dementia; and

(e) The facility develops a service plan that addresses the individual’s needs and supports safe co-residence.

(2) At time of move-in and at least quarterly, the memory care community must make reasonable attempts to identify the preferred customary routines of each resident and the resident's preferences in how services may be delivered. Minimum services to be provided include:

(a) Assistance with activities of daily living that addresses the needs of each resident with dementia due to cognitive or physical limitations. These services must meet or be in addition to the requirements in the licensing rules for the facility. Services must be provided in a manner that promotes resident choice, dignity, and sustains the resident's abilities.

(b) Health care services provided in accordance with the licensing rules of the facility.

(c) A daily meal program for nutrition and hydration must be provided based upon the resident’s preferences and needs available throughout each resident’s waking hours. The individualized nutritional plan for each resident must be documented in the resident’s service or care plan. In addition, the memory care community must provide:

(A) Visual contrast between plates, eating utensils, and the table to maximize the independence of each resident; and

(B) Adaptive eating utensils for those residents who have been evaluated as needing them to maintain their eating skills.

(d) Meaningful activities that promote or help sustain the physical, cognitive and emotional well-being of residents. The activities must be person-centered and available during residents’ waking hours.

(A) Each resident must be evaluated for activities according to the licensing rules of the facility. In addition, the evaluation must address the following:

(i) Past and current interests;

(ii) Current abilities and skills;

(iii) Emotional and social needs and patterns;

(iv) Physical abilities and limitations;

(v) Adaptations necessary for the resident to participate; and

(vi) Identification of activities for behavioral interventions.

(B) An individualized activity plan must be developed for each resident based on their activity evaluation. The plan must reflect the resident’s activity preferences and needs.

(C) A selection of daily structured and non-structured activities must be provided and included on the resident’s activity service or care plan as appropriate. Daily activity options based on resident evaluation may include but are not limited to:

(i) Occupation or chore related tasks;

(ii) Scheduled and planned events (e.g. entertainment, outings);

(iii) Spontaneous activities for enjoyment or those that may help diffuse a behavior;

(iv) One to one activities that encourage positive relationships between residents and staff (e.g., life story, reminiscing, music);

(v) Spiritual, creative, and intellectual activities;

(vi) Sensory stimulation activities;

(vii) Physical activities that enhance or maintain a resident’s ability to ambulate or move; and

(viii) Outdoor activities.

(e) Behavioral symptoms which negatively impact the resident or others in the community must be evaluated and included on the service or care plan. The memory care community must initiate and coordinate outside consultation or acute care when indicated.

(f) Support must be offered to family and other significant relationships on a regularly scheduled basis not less than quarterly. Examples in which support may be provided include support groups, community gatherings, social events, or meetings that address the needs of individual residents or their family or significant relationships.

(g) Access to secured outdoor space and walkways which allow residents to enter and return without staff assistance, except when indicated by OAR 411-057-0170(5)(e).

History

Statutory/Other Authority: ORS 410.070 & 443.886
Statutes/Other Implemented: ORS 443.886
APD 22-2026, temporary amend filed 08/04/2026, effective 08/11/2026 through 12/27/2026
APD 18-2026, temporary suspends temporary APD 13-2026, filed 07/01/2026, effective 07/01/2026 through 12/27/2026
APD 13-2026, temporary amend filed 06/23/2026, effective 07/01/2026 through 12/27/2026
APD 24-2020, amend filed 06/20/2020, effective 06/24/2020
APD 52-2019, temporary amend filed 12/20/2019, effective 01/01/2020 through 06/28/2020
SPD 23-2010, f. 9-14-10, cert. ef. 11-1-10

Or. Admin. R. 411-057-0165 Temporary rule language in effect until 12/27/2026. Independent Family Council

(1) A resident has the right to start or take part in resident groups, including an independent family council. An independent family council may include residents, family members of residents, and legal representatives, who may start or take part in the council.

(2) At the time of admission, the facility must give the resident the residents’ legal representative and residents’ family members, if applicable:

(a) Written notice of the resident’s right to start and take part in resident groups, including an independent family council. This right includes the ability of a resident’s legal representative or family to initiate or take part in an independent family council.

(b) Contact information for any independent family council that already exists at the facility, and how to join.

(3) If an independent family council is formed, the facility must:

(a) Provide space in the facility’s entry area to display information about the council.

(b) Provide meeting space that reasonably allows for privacy during times agreed upon with the council.

(c) Take reasonable steps to let residents, legal representatives, and resident family members know about upcoming meetings in a timely way, if requested by the council. As used in this subsection:

(A) “Timely” means providing notice at least 48 hours in advance of a scheduled meeting, unless a shorter timeframe is necessary due to urgent circumstances.

(B) “Reasonable steps” means using one or more communication methods normally used by the facility to share information with residents and family members.

(d) Allow staff and visitors to attend council meetings only if invited by the council. All visitors, including family members and designated representatives, must follow the facility’s visitor policies.

(e) Name a staff person to respond to, or coordinate a response to, any written requests or grievances from the council.

(f) Acknowledge in writing any request or grievance from the council within five business days. Provide a response by no later than the next independent family council meeting that addresses the issue. The facility does not have to agree with the request, but if the request is denied, an explanation must be given if the council asks.

(4) An independent family council may not take away or limit the rights of any resident.

(5) A facility may not:

(a) Discriminate or retaliate against a resident because they, their family member, or their representative takes part in an independent family council; or

(b) Willfully interfere with the creation, running or promotion of an independent family council.

History

Statutory/Other Authority: ORS 410.070, 443.886 & Or Laws 2025, ch. 221
Statutes/Other Implemented: ORS 443.886 & Or Laws 2025, ch. 221
APD 22-2026, temporary adopt filed 08/04/2026, effective 08/11/2026 through 12/27/2026
APD 18-2026, temporary suspends temporary APD 13-2026, filed 07/01/2026, effective 07/01/2026 through 12/27/2026
APD 13-2026, temporary adopt filed 06/23/2026, effective 07/01/2026 through 12/27/2026

Or. Admin. R. 411-057-0170 Physical Design, Environment, and Safety

(1) It is the intent of these rules that the physical environment and design support the needs of individuals who are cognitively impaired. The physical environment should maximize functional abilities, accommodate behavior that is related to dementia, promote safety, enhance personal dignity, and encourage independence.

(2) BUILDING CODES. Newly endorsed memory care communities must comply with the Oregon Structural Specialty Code (OSSC) occupancy classification enforceable at the time of endorsement. If endorsed prior to the current version of the OSSC, the facility must comply with the building code in place at the time of original endorsement.

(3) Endorsed memory care communities must be located on the ground level of the building to ensure access to outdoor space and safe evacuation.

(4) LIGHTING.

(a) Research conducted in lighting intensities has shown an impact on individuals with dementia. Lighting throughout the day or night may have an impact on an individual's functional abilities, as well as in mood and behavior. For communities that are in development or remodeling to new standards, the Department encourages facilities to review and implement the Recommended Practice for Lighting and Visual Environment for Senior Living as outlined in the ANSI/IESNA RP-28-07.

(b) The following lighting requirements must be met. These requirements apply to newly endorsed, constructed, or remodeled communities which have construction documents approved on or after November 1, 2010.

(A) Light fixtures must be designed to minimize direct glare (for example: indirect or diffused lighting). Bare light bulbs or tubes are not allowed;

(B) Lighting fixtures and circuitry must conform to lighting intensities shown in Table 1;

(C) Windows and skylights must be utilized to minimize the need for artificial light and to allow residents to experience the natural daylight cycle; and

(D) All windows must have coverings which diffuse daylight and minimize glare without blocking all light during the day. In addition, bedroom window coverings must provide privacy and block light from street or parking lot lights from entering the bedroom at night.

(5) SURFACE FINISHES. The following requirements for surface finishes must be met. These requirements apply to newly endorsed, constructed, or remodeled communities which have construction documents approved on or after November 1, 2010.

(a) Walls, floors, ceilings, and woodwork must be finished to minimize reflected glare and must have a low sheen or matte finish;

(b) There must be high visual surface contrasts to assist residents with limited visual acuity to distinguish between floor and wall, between wall and door, and between floor and other objects (e.g. toilet);

(d) Paint and other finishes used on walls above 36 inches from the floor must have a light reflectance value of 60 percent or higher.

(6) SECURE OUTDOOR RECREATION AREA. The memory care community must comply with facility licensing requirements for outdoor recreation areas as well as the following standards. These requirements apply to newly endorsed, constructed, or remodeled communities which have construction documents approved on or after November 1, 2010 with the exception of subsections (d) and (e) of this section.

(a) The space must be a minimum of 600 square feet or 15 square feet per resident, whichever is greater and is exclusive of normal walkways and landscaping. The space must have a minimum dimension of 15 feet in any direction;

(b) Fences surrounding the perimeter of the outdoor recreation area must be no less than six feet in height, constructed to reduce the risk of resident elopement, and maintained in functional condition;

(c) Walkways must meet the accessibility requirements of the Oregon Structural Specialty Code. Walkway surfaces must be a medium to dark reflectance value to prevent glare from reflected sunlight;

(d) Outdoor furniture must be sufficient weight, stability, design, and be maintained to prevent resident injury or aid in elopement; and

(e) Doors to the outdoor recreation area may be locked during nighttime hours or during severe weather per facility policy.

(7) COMMON AREAS. Common areas must include the following requirements:

(a) Freedom of movement for the residents to common areas and to the resident's personal spaces;

(b) A multipurpose room for dining, group and individual activities, and family visits that complies with the facility licensing requirements for common space;

(d) Safe corridors and passageways through the common areas that are free of objects that may cause falls; and

(e) Windows or skylights that are at least as large as 12 percent of the square footage of the common area.

(8) A public address or intercom system is not required, however if one exists it must be used within the memory care community only for emergencies.

(9) RESIDENT ROOMS.

(a) Residents may not be locked out of or inside of their rooms at any time.

(b) Residents must be encouraged to decorate and furnish their rooms with personal items and furnishings based on the resident's needs, preferences, and appropriateness.

(10) EXIT DOORS.

(a) Locking devices used on exit doors, as approved by the Building Codes Agency and Fire Marshal having jurisdiction over the memory care community, must be electronic and release when the following occurs:

(A) Upon activation of the fire alarm or sprinkler system;

(B) Power failure to the facility; or

(b) If the memory care community uses keypads to lock and unlock exits, then directions for the keypad code and their operation must be posted on the outside of the door to allow access to the unit. However, if all of the community is endorsed, then directions for the operation of the locks need not be posted on the outside of the door.

(c) Memory care communities may not have entrance and exit doors that are closed with non-electronic keyed locks. A door with a keyed lock may not be placed between a resident and the exit.

(d) If the memory care community does not post the code, the community must develop a policy or a system that allows for visitor entry.

[ED. NOTE: To view attachments referenced in rule text, click here to view rule.]

History

Statutory/Other Authority: ORS 410.070 & 443.886
Statutes/Other Implemented: ORS 443.886
APD 18-2026, temporary suspends temporary APD 13-2026, filed 07/01/2026, effective 07/01/2026 through 12/27/2026
APD 13-2026, temporary amend filed 06/23/2026, effective 07/01/2026 through 12/27/2026
APD 24-2020, amend filed 06/20/2020, effective 06/24/2020
APD 52-2019, temporary amend filed 12/20/2019, effective 01/01/2020 through 06/28/2020
SPD 23-2010, f. 9-14-10, cert. ef. 11-1-10

Or. Admin. R. 411-057-0180 Exceptions

Exceptions to these rules shall be reviewed by the Department and processed in accordance with the licensing rules of the facility.

History

Statutory/Other Authority: ORS 410.070 & 443.886
Statutes/Other Implemented: ORS 443.886
APD 24-2020, amend filed 06/20/2020, effective 06/24/2020
APD 52-2019, temporary amend filed 12/20/2019, effective 01/01/2020 through 06/28/2020
SPD 23-2010, f. 9-14-10, cert. ef. 11-1-10

Or. Admin. R. 411-057-0190 Complaints, Inspections, and Sanctions

(1) COMPLAINTS AND INVESTIGATIONS. The Department shall investigate complaints regarding an endorsed memory care community in accordance with the complaint and investigation procedures in the licensing rules of the facility. Complaints and investigations may include alleged violations of ORS 443.886 or violations of these rules. When the Department requests documents or records during an investigation, the licensee must make the information available to the investigator promptly for review and copying.

(2) INSPECTIONS. At the time of the memory care community’s regular license renewal, the Department shall inspect the memory care community to determine compliance with these rules.

(3) SANCTIONS. Sanctions for failure to comply with these rules may include the imposition of civil penalties, licensing conditions, suspension, denial, non-renewal, or revocation of the endorsement. Sanction involving the endorsement shall be in accordance with the licensing rules of the facility type applicable to the type of sanction imposed.

(a) SUSPENSION. The Department may immediately suspend a memory care community’s endorsement if the Division finds a serious threat to the public health and safety and sets forth specific reasons for such findings.

(b) DENIAL AND NON-RENEWAL OF ENDORSEMENT APPLICATION. The Department may deny or refuse to renew an endorsement under the following circumstances:

(A) Failure to demonstrate capacity as required in OAR 411-057-0120(5);

(B) Substantial failure to comply with Department rules;

(D) When the State Fire Marshal or authorized representative certifies there is failure to comply with all applicable ordinances and rules pertaining to safety from fire; and

(E) Failure to implement a plan of correction or comply with a licensing or endorsement condition that ensures the safety and security of residents or fails to provide the required dementia care programming to residents living within the memory care community.

(c) REVOCATION. The Department may issue a notice of revocation of endorsement upon finding that there is substantial failure to comply with these rules such that the health, safety, or welfare of residents is jeopardized, or any substantial failure to comply with one or more of these rules.

(4) The licensee is entitled to a hearing in accordance with the provisions of ORS chapter 183 when the Department takes enforcement action on the endorsement of a memory care community.

History

Statutory/Other Authority: ORS 410.070 & 443.886
Statutes/Other Implemented: ORS 443.886
APD 24-2020, amend filed 06/20/2020, effective 06/24/2020
APD 52-2019, temporary amend filed 12/20/2019, effective 01/01/2020 through 06/28/2020
SPD 23-2010, f. 9-14-10, cert. ef. 11-1-10

Division 58 LONG TERM CARE REFERRAL SERVICES

Or. Admin. R. 411-058-0000 Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 058:

(1) "Applicant" means a person that has submitted an application and disclosure statement to register as a referral agent.

(2) “Certificate of Registration” means the document a referral agent or agency receives when the agent has completed the Department approved Long Term Care Referral Registry requirements. A Certificate of Registration does not constitute recommendation or endorsement of the referral agent by the Oregon Department of Human Services, and a registration does not evidence the accuracy or completeness of the information set forth in the disclosure statement.

(3) "Client" means an individual who seeks a long term care referral for the individual or for another individual.

(4) "Compensation" means any substantive financial or material gain from one or more facilities in a total amount of $1,000 or more during a calendar year in exchange for providing long term care referral services to those facilities, including, but not limited to, gain by salary, benefits, commission, payment, gift cards, donations, discounts, and other items of value that result in financial or material gain to the person providing long term care referral services.

(5) “Consent” means the person must act freely and voluntarily and have knowledge of the nature of the actor or transaction involved.

(6) "Department" means the Oregon Department of Human Services, Aging and People with Disabilities Program (APD).

(7) "Disclosure" means a written disclosure statement provided by the referral agent to the client as defined in OAR 411-058-0030.

(8) "Employee" means an individual employed by a referral agent and who is compensated by an hourly wage, salary or commission.

(9) "Facility" means:

(a) A long term care facility as defined in ORS 442.015;

(b) A residential care facility as defined in ORS 443.400, including, but not limited to an assisted living facility and a facility marketed as a memory care community;

(d) A continuing care retirement community as defined in ORS 101.320.

(10) "Independent Contractor" means an individual who is compensated for long term care referrals by a referral agent and is not otherwise compensated by an hourly wage or salary.

(11) "Long Term Care Referral" means a referral to a facility for which the referral agent receives compensation from the facility.

(12) "Person" means an individual, corporation, association, firm, partnership, limited liability company, and joint stock company, as well as any other entity defined in ORS 174.100.

(13) "Placement Information" means any information a referral agent collects from a client or the subject of placement, including, but not limited to name, electronic mail address, phone number, zip code, medical history, income, financial, and information about necessary assistance for activities of daily living or the reasons for seeking long term care.

(14) "Referral Agent" means a person as defined in section (12) of this rule that provides long term care referrals. A "Referral Agent" does not include:

(a) A facility or its employees;

(b) A resident or patron of a facility who refers a client to a facility and receives a discount or other remuneration from the facility;

(d) The employees of a referral agent.

(15) "Registry" means a list of referral agents registered with the Department in accordance with OAR 411-058-0020.

(16) "Subject of Placement" means the individual to be placed with a facility through a long term care referral.

History

Statutory/Other Authority: ORS 409.050, 410.070 & 443.373
Statutes/Other Implemented: ORS 409.050, 410.070 & 443.370
APD 44-2022, amend filed 09/06/2022, effective 09/15/2022
APD 18-2018, adopt filed 06/29/2018, effective 07/01/2018

Or. Admin. R. 411-058-0010 Registration Required

(1) A referral agent who provides long term care referrals to clients must be registered with the Department and obtain a Certificate of Registration with the Department before:

(a) Entering into an agreement to provide long term care referral services to a client.

(b) Soliciting prospective clients and facilities, or

(2) If a referral agent maintains a website it must contain a link to the Oregon Licensed Long Term Care Settings Search website https://ltclicensing.oregon.gov/ listing complaints and regulatory actions by facility.

(3) If the referral agent does not maintain a website, the referral agent shall notify clients in writing of the Oregon Licensed Long Term Care Settings Search website https://ltclicensing.oregon.gov/, as listed above in (2).

(4) The Department will notify the applicant of receipt of the application for Certificate of Registration within 10 calendar days.

(5) The Department will notify the applicant within 60 calendar days after receiving the completed application of the decision to approve or deny a Certificate of Registration.

History

Statutory/Other Authority: ORS 409.050, 410.070 & 443.373
Statutes/Other Implemented: ORS 409.050, 410.070 & 443.373
APD 44-2022, amend filed 09/06/2022, effective 09/15/2022
APD 18-2018, adopt filed 06/29/2018, effective 07/01/2018

Or. Admin. R. 411-058-0020 Registration

(1) APPLICATION FOR REGISTRATION:

(a) Application for registration must be made to the Department and must include:

(A) The registration fee as described in section (2) of this rule;

(B) The disclosure statement as described in OAR 411-058-0030;

(D) Background Check Requirements, as described in OAR 411-058-0080.

(b) The application is not considered to be complete until the Department receives all required information and the registration fee.

(c) The referral agent disclosure statement must be signed by the referral agent, submitted to the Department for approval, and maintained on record with the Department.

(d) The referral agent must renew their registration with the Department every two years.

(2) REGISTRATION FEE:

(a) The initial application for registration must be accompanied by a fee of $750.

(b) After the initial registration, the subsequent renewal fee shall be $500.

(3) ISSUANCE OF REGISTRATION:

(a) The Department shall issue a Certificate of Registration once the applicant has complied with (1) and (2) above.

(b) The Certificate of Registration shall identify the person or entity as a referral agent and includes:

(A) Name, doing business as (DBA) and address of the person or entity.

(B) Certificate of Registration date of issue and expiration.

(4) If any person or referral agent who has not been issued a Certificate of Registration in compliance with this rule receives compensation as defined by 411-058-0000(4), then that person must apply for registration as prescribed by Section (1) of this rule within 30 calendar days of receiving such compensation.

History

Statutory/Other Authority: ORS 409.050, 410.070, 443.373, 410.070 & 443.373
Statutes/Other Implemented: ORS 409.050, 410.070 & 443.373
APD 44-2022, amend filed 09/06/2022, effective 09/15/2022
APD 18-2018, adopt filed 06/29/2018, effective 07/01/2018

Or. Admin. R. 411-058-0030 Disclosure Statement

(1) All applicants must file a disclosure statement with the Department when submitting a new registration or initial application, with every registration renewal, and when amended.

(2) The disclosure statement must be written in clear language, be prepared in a minimum 12-point font, and include the following elements:

(a) A description of the long term care referral to be provided by the referral agent, including the length of any contract the referral agent has with a facility regarding placement information about the client.

(b) The referral agent's contact information, including, agent name, address, phone number, email address and website.

(d) A statement of whether the referral agent provides referrals only to facilities with which the agent has an existing business contract.

(e) A statement of whether the referral fees for the long term care referral will be paid to the referral agent by the facility.

(3) If the referral agent does not have a website, the disclosure statement must include information providing the Oregon Licensed Long Term Care Settings Search website https://ltclicensing.oregon.gov/ listing complaints concerning facilities.

(4) Prior to amending a disclosure statement, a referral agent must submit all amended documents and new materials to the Department for review and approval.

(5) The disclosure may be made orally first if the referral agent makes an audio recording of the disclosure with consent of the client and thereafter provides the client with a written disclosure. Proof of disclosure either oral or written must be retained and available to the Department.

History

Statutory/Other Authority: ORS 409.050, 410.070, 443.373, 410.070 & 443.373
Statutes/Other Implemented: ORS 409.050, 410.070 & 443.376
APD 44-2022, amend filed 09/06/2022, effective 09/15/2022
APD 18-2018, adopt filed 06/29/2018, effective 07/01/2018

Or. Admin. R. 411-058-0040 Prohibited Activities

(1) A referral agent may not share a client's placement information with or sell a client's placement information to a facility or marketing affiliate without obtaining affirmative consent from the client for each instance of sharing or selling the information.

(2) A referral agent may not refer a client to a facility in which the referral agent or an immediate family member of the referral agent has an ownership interest.

(3) A referral agent may not contact a client who has requested in writing via facsimile, letter, electronic mail, or other electronic means of written communication that the referral agent stop contacting the client.

History

Statutory/Other Authority: ORS 409.050, 410.070, 443.373, 410.070 & 443.373
Statutes/Other Implemented: ORS 409.050, 410.070 & 443.376
APD 44-2022, amend filed 09/06/2022, effective 09/15/2022
APD 18-2018, adopt filed 06/29/2018, effective 07/01/2018

Or. Admin. R. 411-058-0050 Client Records

A referral agent shall maintain client records sufficient to document compliance with ORS 443.370 to 443.376 for a period of three years from the date of any disclosure statement given to a client.

History

Statutory/Other Authority: ORS 409.050, 410.070 & 443.373
Statutes/Other Implemented: ORS 409.050 & 410.070
APD 44-2022, amend filed 09/06/2022, effective 09/15/2022
APD 18-2018, adopt filed 06/29/2018, effective 07/01/2018

Or. Admin. R. 411-058-0060 Subsequent Facility

(1) If a client is referred to a facility and the referral agent has received compensation from the facility for the referral, the client may notify the referral agent in writing that the client wishes to use the services of another referral agent in the future for referral to another facility in a subsequent move. After receiving this notice described in this section, the first referral agent may not receive compensation from another facility in a subsequent move for any referral made before receiving the notice.

(2) A referral agent must include in any contract with a facility provisions prohibiting the referral agent from collecting compensation from a facility when the facility is a subsequent facility as described in this section. A facility is a subsequent facility if:

(a) The subject of placement enters a facility to which the subject of placement is referred by a first referral agent, but subsequently leaves that facility; and

(b) A new referral agent refers the subject of placement to a subsequent facility.

(3) When a referral is made to a subsequent facility for a subject of placement by a new referral agent as described in section (2) of this rule, the new referral agent must present evidence to the subsequent facility that the first referral agent is not entitled to compensation.

History

Statutory/Other Authority: ORS 409.050, 410.070 & 443.373
Statutes/Other Implemented: ORS 409.050, 410.070 & 443.376
APD 44-2022, amend filed 09/06/2022, effective 09/15/2022
APD 18-2018, adopt filed 06/29/2018, effective 07/01/2018

Or. Admin. R. 411-058-0070 General Liability Insurance Requirements

(1) An applicant must demonstrate that it maintains at least $1,000,000 per occurrence in general liability insurance, as described in OAR 411-058-0020.

(2) A referral agent must maintain a commercial general liability insurance policy in an amount of at least $1,000,000 per occurrence throughout the entire period of registration on an uninterrupted basis as described in OAR 411-058-0020.

History

Statutory/Other Authority: ORS 409.050, 410.070 & 443.373
Statutes/Other Implemented: ORS 409.050, 410.070 & 443.373
APD 44-2022, amend filed 09/06/2022, effective 09/15/2022
APD 18-2018, adopt filed 06/29/2018, effective 07/01/2018

Or. Admin. R. 411-058-0080 Background Check Requirements

(1) Any referral agent, including any employee, owner, or operator of a referral agency who provides long term care referrals to clients, and who comes into direct contact with clients must pass a criminal background check every 24 months as described in this section of this rule. Direct contact with clients includes:

(a) In-person contact with clients;

(b) Telephone contact with clients to obtain client-specific information, including, but not restricted to a client's medical, financial, and long term care needs;

(c) Electronic communication with clients to obtain client-specific information, including, but not restricted to a client's medical, financial, and long term care needs; or

(d) Contact with clients through written communication via US mail, other delivery services, or facsimile to obtain client-specific information, including, but not restricted to a client's medical, financial, and long term care needs.

(2) If a referral agent or employee is hired on a preliminary basis pursuant to OAR 407-007-0315 or a substantially similar process used by a background check entity as described in OAR 411-058-0080(3) through (7), active supervision of the referral agent or employee shall include that the person supervising:

(a) Knows where the referral agent or employee is and what the referral agent or employee is doing; and

(b) Periodically observes the action of the employee through in-person, telephonic, or electronic contact with the agent or employee.

(3) Any referral agent, including any employee of a referral agent that provides long term care referrals to clients and who comes into direct contact with clients, as described in 411-058-0080(1), must undergo a background check process substantially similar to the process described in OAR 407-007-0200 to 407-007-0370 with an outcome of approved.

(4) As an alternative to utilizing the Oregon Department of Human Services’ Background Check Unit, referral agents may utilize background check entities that are accredited by the Professional Background Screening Association, subject to these rules.

(5) Referral agents utilizing alternative background check entities per 411-058-0080(4) must obtain prior authorization from the Oregon Department of Human Services as described in 411-058-0080(6).

(6) The Oregon Department of Human Services will approve a referral agent’s use of an alternate background check entity, which demonstrably meets the requirements of this rule, if the referral agent provides:

(a) A notarized affidavit from the background check entity describing and demonstrating that the entity’s background check process utilized for referral agents is substantially similar to the process defined in OAR 407-007-0200 to 407-007-0370.

(b) The affidavit must include a detailed account of how the entity’s process deviates from OAR 407-007-0200 to 407-007-0370.

(7) The Oregon Department of Human Services shall review in good faith and prior-authorize, deny, or seek additional information from the referral agent’s choice of nationally accredited background check entity within 15 calendar days of submission of the request and affidavit.

History

Statutory/Other Authority: ORS 409.050, 410.070 & 443.373
Statutes/Other Implemented: ORS 409.050, 410.070 & 443.373
APD 44-2022, amend filed 09/06/2022, effective 09/15/2022
APD 18-2018, adopt filed 06/29/2018, effective 07/01/2018

Or. Admin. R. 411-058-0085 Mandatory Abuse Reporting

(1) Referral agents are mandatory reporters under ORS 124.050 and subject to the abuse reporting requirements of ORS 124.060.

(2) A mandatory reporter must report if they have reasonable cause to believe that an elderly person in any setting has suffered abuse, as described in ORS 124.050 and listed below:

(a) Any physical injury to an elderly person caused by other than accidental means.

(b) Neglect.

(d) Willful infliction of physical pain or injury.

(e) Crimes listed in ORS 124.050.

(f) Verbal abuse.

(g) Financial exploitation.

(h) Sexual abuse.

(i) Involuntary seclusion of an elderly person for the convenience of a caregiver or to discipline the person.

(j) A wrongful use of a physical or chemical restraint.

(3) Mandatory reporters must immediately report abuse and suspected abuse to 1-855-503-7233, as required by ORS 124.065.

(4) Anyone who, in good faith and with reasonable grounds, reports abuse or suspected abuse shall have immunity from any criminal or civil liability, as stated in ORS 124.075.

History

Statutory/Other Authority: ORS 124.050, 124.060, 124.072 & 124.075
Statutes/Other Implemented: ORS 124.050, 124.060, 124.072 & 124.075
APD 44-2022, adopt filed 09/06/2022, effective 09/15/2022

Or. Admin. R. 411-058-0090 Administrative Sanctions and Civil Penalties

(1) The Department may impose an administrative sanction or a civil penalty against a referral agent for noncompliance with these rules, as follows:

(a) There has been substantial failure to comply with these rules or where there is substantial noncompliance with local codes and ordinances or any other state or federal law or rule applicable to rights of clients receiving the services under these rules.

(b) The application or renewal for the Certificate of Registration contains fraudulent information or material misrepresentations.

(c) The referral agent fails to comply with a final order of the Department to correct a violation of these rules for which an administrative sanction has been imposed; or

(d) The referral agent fails to comply with a final order of the Department imposing an administrative sanction.

(e) The referral agent has been substantiated for abuse after a report issued under ORS 124.071 or 441.650.

(2) CIVIL PENALTIES. The Department may impose civil penalties as follows:

(a) $750 on a long term care referral agent that is not registered with the Department. If the long term care referral agent fails to apply for registration, then this civil penalty will increase on the following schedule, up to:

(A) $1,500, after failing to apply for registration within 30 calendar days of notice of non-compliance.

(B) $3,000, after failing to register within 60 calendar days of notice of non-compliance.

(D) $10,000, after failing to register within 120 or more calendar days of notice of non-compliance.

(b) $500 per violation for failure to provide a client or their legal representative a disclosure statement.

(c) Not more than $500 per violation for employing an individual who has not completed a background check and has not been hired on a preliminary basis, as described in OAR 411-058-0080. Failure to correct this violation within seven business days of notice of non-compliance shall result in a penalty of up to $1,000 per violation. Subsequent failure to correct this violation within seven business days of the second notice of non-compliance shall result in a penalty of up to $250 per violation, per business day until the violation is corrected.

(d) Maximum of $2,500 per violation if a client’s placement information is shared or sold without obtaining the client’s consent, as described in OAR 411-058-0040.

(e) Maximum of $2,500 per violation if a referral agent refers a client to a facility in which the referral agent or an immediate family member of the referral agent has an ownership interest.

(f) Maximum of $1,000 per violation if a referral agent fails to stop contacting a client who has requested in writing that the referral agent stop contacting that client.

(g) Maximum of $500 per violation for non-compliance of client records requirements as described in OAR 411-058-0050.

(h) $1,000 for failure to maintain General Liability insurance, as described in OAR 411-058-0070.

(i) Maximum of $250 per violation for any general violation not otherwise specified in this rule.

History

Statutory/Other Authority: ORS 409.050, 410.070 & 443.373
Statutes/Other Implemented: ORS 409.050, 410.070 & 443.373
APD 44-2022, amend filed 09/06/2022, effective 09/15/2022
APD 18-2018, adopt filed 06/29/2018, effective 07/01/2018

Or. Admin. R. 411-058-0110 Notice and Hearing Rights

(1) NOTICE. A notice of administrative sanction or civil penalty shall follow procedures established by ORS 183.745 “Civil Penalty Procedures” and be sent by mail, certified mail or electronic mail.

(2) HEARINGS. Right to Hearing. If the Department imposes an Order, the licensee is entitled to a contested case hearing pursuant to ORS chapter 183.

(3) REQUEST FOR HEARING. A referral agent who wishes to contest the proposed civil penalty must request a hearing within 20 calendar days of the date of mailing of the notice. The request must be made in writing and mailed or emailed to the address in the notice. If mailed by First Class Mail, the date of postmark shall be the date of request.

(4) INFORMAL REVIEW. As part of this contested case hearing process, the referral agent may request that an informal review be held to discuss the merits of the case before the contested case hearing.

(a) The Department has discretion on whether to grant an informal review. If the Department grants the informal review, the referral agent will be contacted, and an informal review will be scheduled.

(b) If the referral agent and the Department resolve the issues to the satisfaction of the referral agent, then the Department will contact the Office of Administrative Hearings (OAH) and inform OAH the contested case hearing will not need to proceed.

(5) FINAL DECISION IF NO REQUEST. If a referral agent fails to submit a written request for a contested case hearing within 20 calendar days of receipt of the notice described in paragraph (2) of this section, the Department’s original decision to assess a civil penalty shall become a final order of the Department by default.

(6) CIVIL PENALTIES. Civil penalties are due within 10 calendar days after an order becomes final, either by default or after hearing.

History

Statutory/Other Authority: ORS 409.050, 410.070 & 443.373
Statutes/Other Implemented: ORS 409.050, 410.070 & 443.373
APD 44-2022, adopt filed 09/06/2022, effective 09/15/2022

Division 59 HOUSING WITH SERVICES

Or. Admin. R. 411-059-0000 Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 059:

(1) "Case Management" means the planning, coordination, and referral of services provided directly by the project or from external providers, including, but not limited to:

(a) Transportation;

(b) Meal programs;

(d) Financial services;

(e) Supportive services;

(f) Counseling services;

(g) Recreational, social and wellness activities and programs; or

(h) Services to increase participation in community life.

(2) "Congregate" means a setting, in which three or more individuals reside for a common need or purpose.

(3) "Coordinate" means to provide proactive and systematic assistance in obtaining, facilitation of, and connection with health and social services.

(4) "Department" means the Department of Human Services.

(5) "Food Insecurity" means the state of being without reliable access to a sufficient quantity of affordable, nutritious food.

(6) "Food Insecurity Interventions" mean services offered in response to food insecurity that include, but are not limited to:

(a) The direct provision of meals;

(b) Meal preparation;

(d) Cooking services;

(e) Nutrition education; or

(f) Assistance accessing congregate meal sites, nutrition assistance programs, meal delivery programs, or emergency food programs and food banks.

(7) "Health and Social Services" means:

(a) Case management;

(b) Health navigation;

(d) In-home supports; or

(e) Food insecurity interventions.

(8) "Health Navigation" means assistance for individuals in accessing their health care needs, including, but not limited to:

(a) Appointment scheduling;

(b) Medical transportation coordination;

(d) Referrals;

(e) Health education;

(f) Medication management; or

(g) Counseling.

(9) "Housing with Services Project" means an entity that coordinates two or more health and social services for older adults and people with disabilities who are living in publicly subsidized or private congregate settings. A Housing with Services Project does not include:

(a) A health care facility licensed under ORS 441.015.

(b) A residential facility licensed under ORS 443.410.

(d) A continuing care retirement community as defined in ORS 101.020.

(e) A program of all-inclusive care for the elderly as described in 42 C.F.R 460.6.

(f) Transient lodging as defined in ORS 320.300.

(g) A hotel as defined in ORS 699.005.

(10) "In-Home Supports" means assistance to individuals necessary for individuals to live independently in their own residence, including, but not limited to:

(a) Housekeeping;

(b) Personal care;

(d) Laundry services;

(e) Transportation;

(f) Money management;

(g) Medication management; or

(h) Other personal assistance services.

(11) "Mental Health and Addictions Supports and Services" means mental, behavioral or addictions assessment and treatment services and counseling supports that may be provided by psychiatrists, mental or behavioral health caseworkers, therapists, support groups, and any other providers that assist individuals in managing emotional wellness or substance use issues.

(12) "Older adult" means individuals who are age 55 and older.

(13) "People with Disabilities" means individuals between the ages of 18 and 54 who experience a disability that impacts one or more activities of daily living.

(14) "Project" means a Housing with Services Project as defined in these rules.

(15) "These Rules" mean the rules in OAR chapter 411, division 059.

History

Statutory/Other Authority: ORS 410.070 & ORS 443.378
Statutes/Other Implemented: ORS 410.070 & ORS 443.378
APD 13-2018, adopt filed 06/18/2018, effective 07/01/2018
APD 2-2018, temporary adopt filed 01/26/2018, effective 02/01/2018 through 07/30/2018

Or. Admin. R. 411-059-0010 Registration Required

(1) Except as provided in OAR 411-059-0030, all entities that coordinate two or more health or social services for older adults and people with disabilities who live in publicly subsidized or private congregate settings must register with the Department as a housing with services project.

(2) The Department shall send a certificate of registration to the housing with services project within 90 days of receipt of the registration form. The Department shall notify the housing with services project within 60 days of receipt of the form if the form is incomplete or otherwise needs to be corrected.

(3) The Department shall enter the project's information on its registry if the Department determines the requirements of these rules and ORS 443.378 are met.

History

Statutory/Other Authority: ORS 410.070 & ORS 443.378
Statutes/Other Implemented: ORS 410.070 & ORS 443.378
APD 13-2018, adopt filed 06/18/2018, effective 07/01/2018
APD 2-2018, temporary adopt filed 01/26/2018, effective 02/01/2018 through 07/30/2018

Or. Admin. R. 411-059-0020 Registration

(1) HOUSING WITH SERVICES PROJECT REGISTRATION:

(a) A Housing with Services project must register with the Department on forms prescribed by the Department. The registration form must include the housing with services project's:

(A) Name;

(B) Address; and

(b) The registration form is not considered to be complete until the Department receives all required information.

(2) ISSUANCE OF REGISTRATION:

(a) The Department shall issue a certificate of registration to the housing with services project once the registrant:

(A) Submits a registration form that has all required fields on the form completed; and

(B) Meets all other requirements described in ORS 443.378 and these rules.

(b) The certificate of registration shall identify the housing with services project's name, address, and primary contact person for the housing with services project.

History

Statutory/Other Authority: ORS 410.070 & ORS 443.378
Statutes/Other Implemented: ORS 410.070 & ORS 443.378
APD 13-2018, adopt filed 06/18/2018, effective 07/01/2018
APD 2-2018, temporary adopt filed 01/26/2018, effective 02/01/2018 through 07/30/2018

Or. Admin. R. 411-059-0030 Registration Required - Exceptions

(1) A housing with services project is not required to register with the Department under these rules and ORS 443.378 if the housing with services project is regulated by the Housing and Community Services Department or the federal Department of Housing and Urban Development.

(2) No later than December 31 of each calendar year, the Housing and Community Services Department shall provide the Department a list of housing with services projects regulated by the Housing and Community Services Department that serve older adults, people with disabilities, or both.

(3) No later than December 31 of each calendar year, the Department shall obtain a list of housing with services projects in Oregon that are regulated by the federal Department of Housing and Urban Development and not regulated by the Housing and Community Services Department that serve older adults, people with disabilities, or both.

(4) The lists in sections (2) and (3) of this rule shall include, at a minimum, the following information, the housing with services project's:

(a) Name;

(b) Address; and

(5) All housing with services projects provided to the Department in the process described in this rule shall be considered registered with the Department as a housing with services project.

History

Statutory/Other Authority: ORS 410.070 & ORS 443.378
Statutes/Other Implemented: ORS 410.070 & ORS 443.378
APD 13-2018, adopt filed 06/18/2018, effective 07/01/2018
APD 2-2018, temporary adopt filed 01/26/2018, effective 02/01/2018 through 07/30/2018

Or. Admin. R. 411-059-0040 Department Information for Tenants

(1) Upon entering a project on the registry, as stipulated in OAR 411-059-0020 through 411-059-0030, the Department shall provide housing with services projects with information on resources available to tenants within 30 business days, including, but not limited to, information about:

(a) The Aging and Disability Resource Connection; and

(b) Hotlines for reporting abuse.

(2) The Department will respond to any written request for information identified in section (1) of this rule by a registered housing with services project within 30 business days of receipt of the request.

History

Statutory/Other Authority: ORS 410.070 & ORS 443.378
Statutes/Other Implemented: ORS 410.070 & ORS 443.378
APD 13-2018, adopt filed 06/18/2018, effective 07/01/2018
APD 2-2018, temporary adopt filed 01/26/2018, effective 02/01/2018 through 07/30/2018

Or. Admin. R. 411-059-0050 Administrative Sanctions

(1) If the Department has reasonable cause to believe an entity is a housing with services project subject to the registration requirements of OAR 411-059-0010 through OAR 411-059-0020 and is operating without registration, the Department may contact or enter the housing with services project to determine whether it is subject to registration requirements under ORS 443.378.

(2) If the Department determines a project should have registered under these rules, the Department may issue a demand to register.

(3) The Department shall serve the demand to register upon the operator personally or by certified mail. The demand to register shall include:

(a) A reference to the particular sections of statute or rule involved;

(b) A short and plain statement of the matters asserted or charged; and

(4) A project that disagrees with the Department's determination of registration requirements shall have 10 days from the date of receipt in which to make a written application for a hearing.

(5) All hearings shall be conducted according to the applicable provisions of ORS 183.310 to 183.550.

(6) If the project notified fails to request a hearing within the time frame specified, or if after a hearing the project should have been registered under these rules or statute, an order may be entered demanding that the project be registered with the Department.

(7) If the housing with services project fails to register with the Department after being served notice pursuant section (3) of this rule within 60 calendar days, or 30 calendar days after a hearing determination described in section (6) of this rule, the Department shall refer the entity to the Oregon Department of Justice's Civil Enforcement Division.

History

Statutory/Other Authority: ORS 410.070, ORS 443.378 & ORS 183
Statutes/Other Implemented: ORS 410.070 & ORS 443.378
APD 13-2018, adopt filed 06/18/2018, effective 07/01/2018
APD 2-2018, temporary adopt filed 01/26/2018, effective 02/01/2018 through 07/30/2018

Division 60 COVID-19 TESTING IN LICENSED ASSISTED LIVING FACILITIES, NURSING FACILITIES AND RESIDENTIAL CARE FACILITIES

Or. Admin. R. 411-060-0000 Purpose

The purpose of these rules in OAR chapter 411, division 060 is to establish requirements for Nursing Facilities, Assisted Living Facilities and Residential Care Facilities to ensure all residents, Facility Staff and Associated Staff are tested for COVID-19. The scope of these rules includes requirements for admission testing, routine testing of staff, and ongoing outbreak-associated testing. The standards are designed to protect vulnerable Residents, prevent transmission among Residents, Facility Staff and Associated Staff, and improve prevention efforts during the COVID-19 pandemic.

History

Statutory/Other Authority: ORS 441.025, 441.055, 441.615, 441.630, 441.637, 441.650, 443.400-443.455, 443.991
Statutes/Other Implemented: ORS 441.025, 441.055, 441.615, 441.630, 441.637, 441.650, 443.400-443.455, 443.991
APD 54-2020, adopt filed 12/30/2020, effective 01/06/2021
APD 45-2020, temporary adopt filed 10/21/2020, effective 11/01/2020 through 01/10/2021
APD 34-2020, temporary adopt filed 08/10/2020, effective 08/10/2020 through 01/10/2021
APD 29-2020, temporary adopt filed 07/14/2020, effective 07/15/2020 through 01/10/2021

Or. Admin. R. 411-060-0005 Definitions

(1) “Assisted Living Facility” refers to entities licensed under rules contained in Oregon Administrative Rule chapter 411, division 054.

(2) “Associated Staff” means individuals providing direct care services to facility residents via a contractual relationship with the facility such as supplemental staffing agencies. Associated staff also includes volunteers, hospice personnel, caregivers who provide care and service to residents on behalf of the facility, individuals providing environmental (housekeeping, laundry) or food services via a contractual relationship with the facility, and students in the facility’s nurse aide training program or from affiliated academic institutions.

(3) “Associated Staffing Provider” means a separate legal entity, including an entity that has contracted with a Facility to provide staffing for the Facility, which employs Associated Staff.

(4) “Authority” means the Oregon Health Authority.

(5) “COVID-19” refers to Coronavirus disease 2019, which is defined as an illness caused by a novel coronavirus now called severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).

(6) “Department” means the Department of Human Services.

(7) “Facility” means an Assisted Living Facility, Nursing Facility and Residential Care Facility licensed by the Oregon Department of Human Services.

(8) “Facility Staff” means anyone directly employed by the Facility who is scheduled, or anticipated, to work at the Facility in the future.

(9) “Hospital” means Hospital as defined in ORS 442.015.

(10) “Isolation” means the separation of sick people with, or presumed to have, a contagious disease, including COVID-19, from people who do not have that contagious disease.

(11) “Legal Representative” means that term as defined in OAR 411-085-0005.

(12) “Local Public Health Authority” means Local Public Health Authority (LPHA) as defined in ORS 431.003.

(13) "Nursing Facility" means an entity licensed by the Department pursuant to Oregon Administrative Rule chapter 411, division 085 to 089.

(14) “Positivity Rate” means the percentage of people who test positive for COVID-19 of those overall, who have been tested in a defined group in a defined period of time.

(15) “Quarantine” means separation and restriction of the movement of people who have been exposed to a contagious disease, including COVID-19, to see if they become infected with the contagious disease.

(16) “Resident” is defined as an individual who has been admitted or moved in and is receiving room, board, care and services on a 24-hour basis in a Facility.

(17) "Residential Care Facility" means an entity licensed under rules contained in Oregon Administrative Rule chapter 411, division 054.

(18) “Routine Testing” means regular, proactive testing of a defined population such as Facility Staff and Associated Staff to identify the presence of the COVID-19 virus in symptomatic and asymptomatic individuals.

(19) “Suspect COVID-19” refers to a person with a new onset of symptoms consistent with COVID-19, including fever or chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste, sore throat, nausea or vomiting, or diarrhea, without a more likely alternative diagnosis.

(20) “Testing” refers to a testing process to detect SARS-CoV-2 by a laboratory certified by the US Clinical Laboratory Improvement Amendments program (CLIA) and that meets Authority (OHA) and Department testing criteria.

History

Statutory/Other Authority: ORS 441.025, 441.055, 441.615, 441.630, 441.637, 441.650, 443.400-443.455, 443.991
Statutes/Other Implemented: ORS 441.025, 441.055, 441.615, 441.630, 441.637, 441.650, 443.400-443.455, 443.991
APD 54-2020, adopt filed 12/30/2020, effective 01/06/2021
APD 45-2020, temporary adopt filed 10/21/2020, effective 11/01/2020 through 01/10/2021
APD 34-2020, temporary adopt filed 08/10/2020, effective 08/10/2020 through 01/10/2021
APD 29-2020, temporary adopt filed 07/14/2020, effective 07/15/2020 through 01/10/2021

Or. Admin. R. 411-060-0010 Admission and Readmission Testing

(1) A Facility shall implement quarantine measures for newly admitted or readmitted Residents for a period of 14 days, except residents who have recovered from COVID-19 within 90 days of admission or readmission and are asymptomatic. Quarantine measures can include placement of Resident in a private room, or cohorted area and use of personal protective equipment for Resident care as prescribed by the Authority, and monitoring for signs and symptoms associated with COVID-19 at least daily.

(2) A Facility shall conduct risk-based COVID-19 screenings of all Residents prior to admission or re-admission, based on OHA guidance for identifying people with symptoms consistent with having the COVID-19 virus and/or with having known contacts with a person(s) with COVID-19 or Suspect COVID-19. Negative tests obtained during the quarantine period do not supplant quarantine requirements in section (1) of this rule.

(3) A Facility may not admit or readmit a Resident that presents with any COVID like symptoms and/or has had known contacts with a person(s) with COVID-19, as determined by the risk-based screening described in section (2) of this rule, regardless of symptom severity, unless Testing has been administered to the Resident and test results have been received by the Facility prior to admission. Testing should be performed no more than three days prior to the proposed admission date. Negative test results from pre-admission testing are in supplement to, and do not supplant, quarantine requirements in section (2) of this rule.

(4) A Facility shall obtain written approval from the Department prior to admitting Residents known to have COVID-19.

(5) A Facility shall follow OHA COVID-19 clinical guidelines as published on the OHA website.

History

Statutory/Other Authority: ORS 441.025, 441.055, 441.615, 441.630, 441.637, 441.650, 443.400-443.455, 443.991
Statutes/Other Implemented: ORS 441.025, 441.055, 441.615, 441.630, 441.637, 441.650, 443.400-443.455, 443.991
APD 54-2020, adopt filed 12/30/2020, effective 01/06/2021
APD 45-2020, temporary adopt filed 10/21/2020, effective 11/01/2020 through 01/10/2021
APD 34-2020, temporary adopt filed 08/10/2020, effective 08/10/2020 through 01/10/2021
APD 29-2020, temporary adopt filed 07/14/2020, effective 07/15/2020 through 01/10/2021

Or. Admin. R. 411-060-0025 Ensuring Trauma-Informed and Culturally Responsive Testing

(1) Facilities and Associated Staffing Providers must adopt trauma-informed approaches to testing in accordance with Department guidance and professional standards of practice. Such approaches must account for the experiences and preferences of the person being tested to eliminate or mitigate triggers that may cause re-traumatization of the resident.

(2) Facilities and Associated Staffing Providers must ensure that all communications and testing-related support services for Residents, Facility Staff, and Associated Staff, such as mediation, decision-making support, and mental health services, are delivered in a linguistically and culturally appropriate manner and are in accordance with Department guidance and professional standards of practice. Medicaid enrolled members who require the use of certified health care interpreters shall be afforded that opportunity consistent with relevant OARs.

History

Statutory/Other Authority: ORS 441.612, 443.450
Statutes/Other Implemented: ORS 441.612, 443.450
APD 54-2020, adopt filed 12/30/2020, effective 01/06/2021
APD 45-2020, temporary adopt filed 10/21/2020, effective 11/01/2020 through 01/10/2021
APD 34-2020, temporary adopt filed 08/10/2020, effective 08/10/2020 through 01/10/2021
APD 29-2020, temporary adopt filed 07/14/2020, effective 07/15/2020 through 01/10/2021

Or. Admin. R. 411-060-0027 Routine Staff Testing Requirements

Every Assisted Living Facility and Residential Care Facility shall:

(1) Ensure that all Facility Staff and Associated Staff are tested routinely for COVID-19 on an interval that considers the published county positivity rate, the availability of testing resources and at the frequency outlined in the Department guidance. Nursing Facilities will follow the standards set forth in the interim rules issued by the US Centers for Medicare and Medicaid Services (CMS) in 85 Federal Register 54820 (September 2, 2020). Nursing Facilities will also follow any guidance issued by CMS related to these rules.

(2) If a Facility is unable to comply with the required testing interval due to lack of access to molecular testing services that can reliably process tests within 48 hours or lack of access to antigen tests, the Facility may request an exception and alternate testing schedule from the Department.

(3) Conduct testing in a manner that is consistent with current standards of practice for conducting COVID-19 tests as defined in OHA clinical guidance.

(4) For each instance of Facility Staff and Associated Staff testing, document or obtain copies of documentation that testing was completed and the results of each test.

(5) Upon the identification of an individual specified in this paragraph with symptoms consistent with COVID-19, or who tests positive for COVID-19, take actions to prevent the transmission of COVID-19.

(6) Have procedures for addressing Facility Staff and Associated Staff who refuse testing or are unable to be tested. Serial testing of all Facility Staff and Associated Staff is mandatory, except for those Facility Staff and Associated Staff who provide medical justification for declining testing from a licensed health care provider. If any Facility Staff or Associated Staff refuses testing that is required under this rule, the Facility or Associated Staffing Provider is required to address a refusal as a personnel matter with the individual employee. Personnel consequences for refusals to test shall be consistent with requirements under federal and state employment laws and collective bargaining agreements, if applicable.

History

Statutory/Other Authority: ORS 441.025, 441.055, 441.615, 441.630, 441.637, 441.650, 443.400-443.455, 443.991
Statutes/Other Implemented: ORS 441.025, 441.055, 441.615, 441.630, 441.637, 441.650, 443.400-443.455, 443.991
APD 54-2020, adopt filed 12/30/2020, effective 01/06/2021
APD 45-2020, temporary adopt filed 10/21/2020, effective 11/01/2020 through 01/10/2021

Or. Admin. R. 411-060-0030 Outbreak Prevention Testing

Effective November 1, 2020, a Facility must coordinate or complete specimen collection for COVID-19 testing of all Residents, Facility Staff and Associated Staff within 72 hours of identification of a new case of COVID-19 in either a Resident, Facility Staff or Associated Staff.

History

Statutory/Other Authority: ORS 441.025, 441.055, 441.615, 441.630, 441.637, 441.650, 443.400-443.455, 443.991
Statutes/Other Implemented: ORS 441.025, 441.055, 441.615, 441.630, 441.637, 441.650, 443.400-443.455, 443.991
APD 54-2020, adopt filed 12/30/2020, effective 01/06/2021
APD 45-2020, temporary adopt filed 10/21/2020, effective 11/01/2020 through 01/10/2021
APD 34-2020, temporary adopt filed 08/10/2020, effective 08/10/2020 through 01/10/2021
APD 29-2020, temporary adopt filed 07/14/2020, effective 07/15/2020 through 01/10/2021

Or. Admin. R. 411-060-0040 Consent for Testing

(1) A Facility must obtain consent from a Resident, or their representative, and Facility Staff prior to COVID-19 testing. The Facility shall develop a protocol to obtain consent from Residents and a separate protocol to obtain consent from Facility Staff.

(2) Prior to obtaining consent pursuant to section (1) of this section, a Facility shall provide communication to a Resident or their representative, and the Resident family as applicable, regarding upcoming testing. Where possible and feasible, the Facility shall provide this communication at least one week prior to obtaining consent from the Resident.

(3) Facilities must ensure that Associated Staffing Providers obtain consent from Associated Staff prior to COVID-19 testing. The Facility shall develop a protocol to document consent for any Associated Staff.

(4) Prior to obtaining consent pursuant to section (3) of this section, an Associated Staffing Provider shall provide communication to Associated Staff regarding upcoming testing. Where possible and feasible, the Associated Staffing Provider shall provide this communication at least one week prior to obtaining consent from the Associated Staff.

History

Statutory/Other Authority: ORS 441.612, 443.450
Statutes/Other Implemented: ORS 441.612, 443.450
APD 54-2020, adopt filed 12/30/2020, effective 01/06/2021
APD 45-2020, temporary adopt filed 10/21/2020, effective 11/01/2020 through 01/10/2021
APD 34-2020, temporary adopt filed 08/10/2020, effective 08/10/2020 through 01/10/2021
APD 29-2020, temporary adopt filed 07/14/2020, effective 07/15/2020 through 01/10/2021

Or. Admin. R. 411-060-0050 Reporting

All Facilities with Clinical Laboratory Improvement Amendments (CLIA) waivers must follow the reporting requirements contained in OARs 333-018-0000 thru 333-018-0145. This includes the requirements contained in OAR 333-018-0011 for reporting race, ethnicity, language and disability data.

History

Statutory/Other Authority: ORS 441.025, 441.055, 441.615, 441.630, 441.637, 441.650, 443.400-443.455, 443.991
Statutes/Other Implemented: ORS 441.025, 441.055, 441.615, 441.630, 441.637, 441.650, 443.400-443.455, 443.991
APD 54-2020, adopt filed 12/30/2020, effective 01/06/2021
APD 45-2020, temporary adopt filed 10/21/2020, effective 11/01/2020 through 01/10/2021
APD 34-2020, temporary adopt filed 08/10/2020, effective 08/10/2020 through 01/10/2021
APD 29-2020, temporary adopt filed 07/14/2020, effective 07/15/2020 through 01/10/2021

Division 61 COVID-19 VACCINATION REPORTING FOR LICENSED ASSISTED LIVING FACILITIES, NURSING FACILITIES AND RESIDENTIAL CARE FACILITIES

Or. Admin. R. 411-061-0010 Reporting of COVID-19 Vaccination Data in Nursing Facilities, Assisted Living Facilities, and Residential Care Facilities

(1) For purposes of this rule, the following definitions apply:

(a) “Additional dose or booster” means a COVID-19 vaccine received two or more weeks after completion of an initial series (dose 1 and dose 2 of COVID-19 vaccines requiring two doses for completion or one dose of COVID-19 vaccine requiring only one dose for completion).

(b) “Assisted Living Facility” has the meaning given that term in OAR 411-054-0005.

(d) "Contraindication" means a physical condition or disease that renders a particular vaccine improper or undesirable in accordance with the current recommendations of the Advisory Committee on Immunization Practices, U.S. Department of Health and Human Services, and the Centers for Disease Control & Prevention.

(e) “Nursing Facility” has the meaning given that term in OAR 411-085-0005.

(f) “Residential Care Facility” has the meaning given that term in OAR 411-054-0005.

(g) “Staff” means individuals who work in a facility on a regular basis (at least once a week), including individuals who may not be physically in the facility for a period of time due to illness, disability, or scheduled time off, but who are expected to return to work. This also includes individuals under contract or arrangement, including hospice and dialysis staff, physical therapists, occupational therapists, mental health professionals, or volunteers, who are in a facility on a regular basis.

(2) All Assisted Living Facilities, Nursing Facilities, and Residential Care Facilities must request the following information from residents and staff and submit the following information to the Authority, on a weekly basis, or less frequently if authorized by the Authority, in a form and manner prescribed by the Authority:

(a) Number of staff who, if known:

(A) Were eligible to work during the previous week.

(B) Have received one dose of an available two-dose COVID-19 vaccine, by product.

(D) Were eligible to receive available COVID-19 vaccine additional doses or boosters.

(E) Have received COVID-19 vaccine additional doses or boosters, by product.

(F) Have a medical contraindication to receipt of COVID-19 vaccine.

(b) Number of Residents who:

(A) Were at the facility for at least one day in the previous week.

(B) Have received one dose of an available two-dose COVID-19 vaccine, by product.

(D) Were eligible to receive available COVID-19 vaccine additional doses or boosters.

(E) Have received COVID-19 vaccine additional doses or boosters, by product.

(F) Have a medical contraindication to receipt of COVID-19 vaccine.

(3) Long-term Care Facilities that report the information in section (2) of this rule through the National Healthcare Safety Network in compliance with Centers for Medicare and Medicaid Services requirements beginning June 13, 2021, may, in lieu of reporting this information directly to the Authority, report the information to the Authority through the National Healthcare Safety Network.

(4) Failure to comply with reporting requirements set forth in section (2) may result in the Department imposing a $250 per day civil penalty. The civil penalty process is described in OAR 411-089-0030 for nursing facilities and OAR 411-054-0120 for residential care and assisted living facilities.

(5) Nursing facilities, Assisted Living Facilities, and Residential Care Facilities must provide individual-level vaccination status information for residents and staff upon request by the Authority for purposes of a disease outbreak investigation or to validate data reported in accordance with this rule.

History

Statutory/Other Authority: ORS 441.025, 441.055, 441.615, 441.630, 441.637, 441.650, 443.400-443.455 & 443.991
Statutes/Other Implemented: ORS 441.025, 441.055, 441.615, 441.630, 441.637, 441.650, 443.400-443.455 & 443.991
APD 33-2022, amend filed 06/30/2022, effective 07/11/2022
APD 4-2022, temporary amend filed 01/31/2022, effective 01/31/2022 through 07/17/2022
APD 2-2022, temporary amend filed 01/24/2022, effective 01/24/2022 through 07/17/2022
APD 1-2022, temporary amend filed 01/18/2022, effective 01/19/2022 through 07/17/2022
APD 48-2021, adopt filed 11/22/2021, effective 11/24/2021
APD 39-2021, temporary adopt filed 09/28/2021, effective 09/28/2021 through 11/27/2021
APD 17-2021, temporary adopt filed 06/01/2021, effective 06/01/2021 through 11/27/2021

Division 62 LONG TERM CARE CAPITAL IMPROVEMENT AND EMERGENCY PREPAREDNESS PROGRAM

Or. Admin. R. 411-062-0000 Purpose

The purpose of this rule is to establish requirements and criteria for the application, approval, distribution, and oversight of the Long-Term Care Capital Improvement and Emergency Preparedness Program (LTCCIEP). This Program provides financial assistance to long term-care providers that are preparing for, responding to, or recovering from a public health emergency.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 3-2022, adopt filed 01/27/2022, effective 02/01/2022
APD 50-2021, temporary adopt filed 11/29/2021, effective 11/29/2021 through 03/05/2022
APD 33-2021, temporary adopt filed 09/03/2021, effective 09/07/2021 through 03/05/2022

Or. Admin. R. 411-062-0010 Definitions

(1) “Air Quality and HVAC Improvement” means systems, system improvements, or equipment that reduce air pollutants, prevent or control the spread of infectious disease, and regulate temperature in indoor spaces including air conditioning.

(2) “Emergency System Sources” mean for the purposes of this rule, a backup power source, which need not be installed or integrated into a facility’s infrastructure, that the provider may use during a power outage for the purpose of operating critical systems and appliances including refrigeration, portable heating and cooling devices necessary to preserve medications, supplies, or other equipment critical to a resident’s care or immediate safety on a temporary basis. Upgrading fire suppression systems is included in this rule. Licensed facilities are subject to all applicable state and federal licensing standards, i.e., Centers for Medicare and Medicaid.

(3) “Long-Term Care Facility” means:

(a) An Assisted Living Facility licensed under rules contained in Oregon Administrative Rule chapter 411, division 054; or

(b) A Residential Care Facility licensed under rules contained in Oregon Administrative Rule chapter 411, division 054; or

(c) A Nursing Facility licensed by the Department pursuant to Oregon Administrative Rule chapter 411, divisions 085 to 089.

(4) “Infectious Disease Prevention Strategies” means infection control devices or equipment, including technological upgrades that support infection prevention and control.

(5) “Room configurations” means development of negative pressure isolation rooms that prevent the spread of viruses. This may include site-level construction or remodel of resident rooms to reduce per room bed capacity and reduce the spread of infectious diseases.

(6) “Technology and Telehealth” means electronic or virtual means or methods, including but not limited to computer technology, web or internet access, social media, videoconferencing or other technological means or methods to improve resident social isolation and allow for the provision of virtual health care.

(7) “Project” means an effort to promote emergency preparedness, air quality, heating, ventilation, air conditioning, infectious disease prevention, and technology to support virtual visitation for which a grant is sought pursuant to these rules.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 3-2022, adopt filed 01/27/2022, effective 02/01/2022
APD 50-2021, temporary adopt filed 11/29/2021, effective 11/29/2021 through 03/05/2022
APD 33-2021, temporary adopt filed 09/03/2021, effective 09/07/2021 through 03/05/2022

Or. Admin. R. 411-062-0020 Long-Term Care Capital Improvement and Emergency Preparedness Program

(1) The Oregon Department of Human Services establishes the Long-Term Care Capital Improvement and Emergency Preparedness Program (LTCCIEP).

(2) The purpose of the LTCCIEP program is to provide grants to eligible long-term care facilities to improve emergency preparedness, air quality, heating, ventilation, air conditioning, infectious disease prevention strategies, and technology to support virtual visitation.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 3-2022, adopt filed 01/27/2022, effective 02/01/2022
APD 50-2021, temporary adopt filed 11/29/2021, effective 11/29/2021 through 03/05/2022
APD 33-2021, temporary adopt filed 09/03/2021, effective 09/07/2021 through 03/05/2022

Or. Admin. R. 411-062-0030 Application and Prior Authorization

(1) Interested Long-Term Care Facilities must submit a prior authorization request for a grant on a form mandated by the Oregon Department of Human Services (ODHS).

(2) The Department will reimburse facilities only when a prior authorization request was approved, in writing, by the Department.

(3) The Department will consider each prior authorization request in the order of submission. A facility may submit only one request in each phase, as these phases are described in OAR 411-062-0050. Each prior authorization request may include more than one project.

(4) The Department will consider prior authorization requests for any project initiated on or after July 1, 2021. Initiated means any substantive planning or initiation activities to start a project.

(5) A prior authorization request must include information on how the project will mitigate the spread of viruses, avoid emergency evacuations, improve overall emergency preparedness, or increase resident’s health, safety, or ability to communicate during a public health emergency. The prior authorization request must demonstrate an unmet need that will be met through the project.

(6) In accordance with the appropriation authorized by the Oregon legislature, the Department will cease prior authorization of all projects, regardless of phase, once $30 million in prior authorizations have been approved by the Department.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 3-2022, adopt filed 01/27/2022, effective 02/01/2022
APD 50-2021, temporary adopt filed 11/29/2021, effective 11/29/2021 through 03/05/2022
APD 33-2021, temporary adopt filed 09/03/2021, effective 09/07/2021 through 03/05/2022

Or. Admin. R. 411-062-0040 Long Term Care Facility Prioritization

(1) Priority 1 applicants include a long-term care facility, constructed prior to 1996, with the following Medicaid census percentages:

(a) Nursing Facility Medicaid occupied census level of 50% or higher on June 30, 2021.

(b) Community-Based Care Facility occupied census level of 40% or higher on June 30, 2021.

(2) Priority 2 applicants include all long-term care facilities not meeting the criteria in (1). Priority within the Priority 2 group will be given to applicants who were enrolled as a Medicaid provider on June 30, 2021.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 3-2022, adopt filed 01/27/2022, effective 02/01/2022
APD 50-2021, temporary adopt filed 11/29/2021, effective 11/29/2021 through 03/05/2022
APD 33-2021, temporary adopt filed 09/03/2021, effective 09/07/2021 through 03/05/2022

Or. Admin. R. 411-062-0050 Funding Phases

(1) The Department will prior authorize projects in four phases.

(2) Phase 1 consists of Priority 1 applicants requesting grants for Projects including improvements to emergency power sources, air quality, and HVAC systems. Applicants for Phase 1 must submit prior authorization requests between September 13, 2021 and February 28, 2022.

(3) Phase 2 consists of Priority 2 applicants requesting grants for Projects including improvements to emergency power sources, air quality and HVAC system. Applicants for Phase 2 must submit prior authorization requests between January 1, 2022 and June 30, 2022.

(4) Phase 3 consists of Priority 1 applicants requesting grants for Projects including infectious disease prevention, room configuration strategies, technology, and telehealth. Applicants for phase 3 must submit prior authorization requests between March 1, 2022 and August 31, 2022.

(5) Phase 4 consists of Priority 2 applicants requesting grants for Projects including infectious disease prevention, room configuration strategies, technology, and telehealth. Applicants for phase 4 must submit prior authorization requests between May 1, 2022 and October 31, 2022.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 3-2022, adopt filed 01/27/2022, effective 02/01/2022
APD 50-2021, temporary adopt filed 11/29/2021, effective 11/29/2021 through 03/05/2022
APD 33-2021, temporary adopt filed 09/03/2021, effective 09/07/2021 through 03/05/2022

Or. Admin. R. 411-062-0060 Maximum Reimbursement Amounts

(1) The maximum reimbursement amount for Phase 1 is $1,500 per licensed bed per facility, up to a maximum of $100,000.

(2) The maximum reimbursement amount for Phase 2 is $1,500 per licensed bed per facility, up to a maximum of $100,000.

(3) The maximum reimbursement amount for Phase 3 is $20,000.

(4) The maximum reimbursement amount for Phase 4 is $20,000.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 3-2022, adopt filed 01/27/2022, effective 02/01/2022
APD 50-2021, temporary adopt filed 11/29/2021, effective 11/29/2021 through 03/05/2022
APD 33-2021, temporary adopt filed 09/03/2021, effective 09/07/2021 through 03/05/2022

Or. Admin. R. 411-062-0070 Approval and Payment

(1) All prior authorization requests must be approved by the Department in writing to be eligible for reimbursement. The Department will notify facilities in writing if their Project is not approved.

(2) Once work on a Project is completed, the facility must submit a request for reimbursement for the actual cost paid to complete the Project. A request for reimbursement submitted pursuant to this paragraph shall include receipts for actual costs.

(3) The Department will reimburse actual costs, up to 110% of the prior authorized amount, subject to the maximum reimbursement amount described in OAR 411-062-0060. The Department will issue payment within thirty (30) days of receipt of a request for reimbursement submitted pursuant to this rule.

(4) All requests for reimbursement must be received no later than June 30, 2024.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 56-2024, amend filed 07/23/2024, effective 07/25/2024
APD 5-2024, temporary amend filed 01/30/2024, effective 01/31/2024 through 07/28/2024
APD 7-2023, amend filed 06/05/2023, effective 06/15/2023
APD 3-2022, adopt filed 01/27/2022, effective 02/01/2022
APD 50-2021, temporary adopt filed 11/29/2021, effective 11/29/2021 through 03/05/2022
APD 33-2021, temporary adopt filed 09/03/2021, effective 09/07/2021 through 03/05/2022

Or. Admin. R. 411-062-0080 Oversight

(1) All written prior authorization requests and requests for reimbursement are subject to audit at the discretion of the Department.

(2) The Facility shall be notified in writing of any identified overpayment and of any adjustments to the request for payment.

(3) Payment of any amounts due to the Department must be made within 60 business days of the date of notification to the Facility.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
APD 3-2022, adopt filed 01/27/2022, effective 02/01/2022
APD 50-2021, temporary adopt filed 11/29/2021, effective 11/29/2021 through 03/05/2022
APD 33-2021, temporary adopt filed 09/03/2021, effective 09/07/2021 through 03/05/2022

Division 63 RATES FOR COMMISSIONER PER DIEM AND REIMBURSEMENT

Or. Admin. R. 411-063-0010 Definitions

(1) “Commission or Council” means those official bodies identified in ORS 410.070, 410.595 and 410.602.

(2) “Qualified member” means a member who is not in full-time public service and who had an adjusted gross income in the previous tax year:

(a) Of less than $50,000, as reported on an income tax return other than a joint income tax return; or

(b) Of less than $100,000, as reported on a joint income tax return.

History

Statutory/Other Authority: ORS 292.495 & 410.070
Statutes/Other Implemented: ORS 292.495 & 410.070
APD 7-2022, adopt filed 03/01/2022, effective 03/10/2022
APD 37-2021, temporary adopt filed 09/19/2021, effective 09/24/2021 through 03/22/2022

Or. Admin. R. 411-063-0020 Per Diem Compensation

(1) Subject to the availability of funds in the budget of the Commission or Council, and except as otherwise provided by law, the Oregon Department of Human Services Office of Aging and People with Disabilities shall pay any member of a Commission or Council, other than a member who is employed in full-time public service, compensation for each day or portion thereof during which the member is actually engaged in the performance of official Commission or Council duties.

(2) The rate of compensation per day pursuant to ORS 292.495(5) is equal to the per diem paid to members of the Legislative Assembly under ORS 171.072.

(3) A member of a Commission or Council may decline to accept compensation related to the member’s service on the Commission or Council.

(4) In order to receive compensation, a member must submit to the Oregon Department of Human Services Office of Aging and People with Disabilities a signed written request for compensation within 30 days of the meeting or work performed. The member must specify the date, name, type of meeting(s) or work, and the number of full or partial days the member spent performing official Commission or Council business.

History

Statutory/Other Authority: ORS 292.495 & 410.070
Statutes/Other Implemented: ORS 171.072, 185.200, 292.495, 410.070, 410.320, 410.550 & 410.602
APD 7-2022, adopt filed 03/01/2022, effective 03/10/2022
APD 37-2021, temporary adopt filed 09/19/2021, effective 09/24/2021 through 03/22/2022

Or. Admin. R. 411-063-0030 Reimbursement of Travel and Other Expenses

(1) Except as otherwise provided by law, the Oregon Department of Human Services Office of Aging and People with Disabilities may reimburse all members of Commissions and Councils, including those employed in full-time public service, for actual and necessary travel or other expenses actually incurred in the performance of their official duties within the limits provided by law or by the Oregon Department of Administrative Services under ORS 292.210 to 292.250.

(2) Except as provided in subsection (5) of this section, and notwithstanding any other provision of law, the Oregon Department of Human Services Office of Aging and People with Disabilities shall provide reimbursement to a qualified member of the Commission or Council for actual and necessary travel or other expenses actually incurred in the performance of a member’s official duties within the limits provided by law or by the Oregon Department of Administrative Services under ORS 292.210 to 292.250.

(3) For the purposes of this rule, in order to be considered a qualified member, a member may attest by signature that they meet the conditions and income limits specified in 411-063-0010(2).

(4) In order to receive reimbursement of actual and necessary travel and other expenses, a member must submit to the Oregon Department of Human Services Office of Aging and People with Disabilities a travel expense claim for reimbursement supported by receipts, invoices or other appropriate documentation for travel and other expenses within 30 days following the day the member incurred the expense.

(5) A member of a Commission or Council may decline to accept reimbursement of expenses related to the member’s service on the Commission or Council.

History

Statutory/Other Authority: ORS 292.495 & 410.070
Statutes/Other Implemented: ORS 185.200, 292.210 - 292.250, 292.495, 410.070, 410.320, 410.550 & 410.602
APD 7-2022, adopt filed 03/01/2022, effective 03/10/2022
APD 37-2021, temporary adopt filed 09/19/2021, effective 09/24/2021 through 03/22/2022

Or. Admin. R. 411-063-0040 Reimbursement for Hiring a Substitute

(1) As used in OAR 411-063-0030, “other expenses” includes expenses incurred by a member of the Commission or Council in employing a substitute to carry out duties, including personal duties, normally performed by the member, which the member is unable to carry out because of the performance of official duties and which, by the nature of such duties, cannot be delayed without risk to health or safety.

(2) The amount that a member may be reimbursed for expenses incurred in employing a substitute must not exceed $25 per day, pursuant to ORS 292.495(3).

History

Statutory/Other Authority: ORS 292.495 & 410.070
Statutes/Other Implemented: ORS 185.200, 292.210 - 292.250, 292.495, 410.070, 410.320 & 410.550
APD 7-2022, adopt filed 03/01/2022, effective 03/10/2022
APD 37-2021, temporary adopt filed 09/19/2021, effective 09/24/2021 through 03/22/2022

Division 64 QUALITY CARE FUND FOR LONG-TERM CARE FACILITIES

Or. Admin. R. 411-064-0000 Purpose

The purpose of these rules is to establish requirements for the administration and oversight of monies appropriated to the Oregon Department of Human Services (“Department”) from the Quality Care Fund (“Fund”) established under ORS 443.001.

(1) The Fund consists of:

(a) Monies deposited into the Fund from licensing fees and fines as specified under ORS 441.020, 441.745, 443.415, and 443.735.

(b) Interest earned by the Fund.

(2) Within this rule, the Fund is to be used for:

(a) Training, technical assistance, quality improvement initiatives, and facility licensing activities that advance quality of care in accordance with rules and licensing requirements for Facilities, as defined in these rules, licensed by the Department’s Office of Aging and People with Disabilities.

(b) Administering the Senior Emergency Medical Services Innovation Program for pilot projects that provide innovative strategies for addressing the emergency medical service needs of residents of:

(A) A long term care facility as defined in ORS 442.015 and licensed under Oregon Administrative Rule chapter 411, divisions 85 to 89; or

(B) A residential care facility as defined in ORS 443.400, including but not limited to an assisted living facility, and licensed under Oregon Administrative Rule chapter 411, division 54.

History

Statutory/Other Authority: ORS 441.020, 441.025, 441.615, 441.637, 441.745, 443.001, 443.400-443.455, 443.705-443.785, 443.886 & 682.025
Statutes/Other Implemented: ORS 441.020, 441.025, 441.055, 441.615, 441.637, 441.745, 443.001, 443.400-443.455, 443.705-443.785, 443.886 & 682.025
APD 8-2024, adopt filed 02/26/2024, effective 03/01/2024

Or. Admin. R. 411-064-0005 Definitions

For the purpose of these rules, the following definitions apply:

(1) “Aging and People with Disabilities (“APD”)” means the Office of Aging and People with Disabilities, within the Oregon Department of Human Services.

(2) “Department” means the Oregon Department of Human Services (ODHS).

(3) “Facility” means:

(a) A long term care facility as defined in ORS 442.015 and licensed under Oregon Administrative Rule chapter 411, divisions 85 to 89.

(b) A residential care facility as defined in ORS 443.400, including but not limited to an assisted living facility, and licensed under Oregon Administrative Rule chapter 411, division 54.

(c) An adult foster home as defined in ORS 443.705 and licensed under Oregon Administrative Rule chapter 411, divisions 49 to 52.

(4) “Quality Care Fund (“Fund”)” means the fund established under ORS 443.001 and implemented according to these rules.

(5) “Senior emergency medical services” means services provided by an emergency medical service provider, as defined by ORS 682.025, to residents of:

(a) A long term care facility as defined in ORS 442.015 and licensed under Oregon Administrative Rule chapter 411, divisions 85 to 89.

(b) A residential care facility as defined in ORS 443.400, including but not limited to an assisted living facility, and licensed under Oregon Administrative Rule chapter 411, division 54.

History

Statutory/Other Authority: ORS 410.070, 441.025, 441.615, 441.637, 443.001, 443.400-443.455, 443.705-443.785, 443.886 & 682.025
Statutes/Other Implemented: ORS 410.070, 441.025, 441.055, 441.615, 441.637, 443.001, 443.400-443.455, 443.705-443.785, 443.886 & 682.025
APD 67-2024, amend filed 12/05/2024, effective 12/10/2024
APD 27-2024, temporary amend filed 06/18/2024, effective 06/18/2024 through 12/14/2024
APD 8-2024, adopt filed 02/26/2024, effective 03/01/2024

Or. Admin. R. 411-064-0010 Fund Management

The Department shall be responsible for Fund management and oversight.

(1) The Department shall award funds through a formal solicitation process.

(2) The Department shall publicly announce, at least one time per 12-month period, funding opportunities using multiple standard communication channels, including but not limited to publicly posting on the Department website and the state’s procurement system. Each announcement will include:

(a) Instructions for submitting proposals.

(b) Pertinent dates regarding the process and funding decisions.

(d) Evaluation criteria focused on benefiting residents and advancing quality care, as described in section (2) of OAR 411-064-0000.

(3) The Department shall not review any funding proposals that are submitted outside of an announced solicitation cycle. Applicants will be instructed to resubmit their proposal during the next applicable funding cycle.

(4) Application requirements and submission instructions will be announced at least sixty (60) calendar days before any submission due date.

(5) Proposals will be evaluated by APD staff or persons with relevant expertise designated by APD.

History

Statutory/Other Authority: ORS 441.025, 441.615, 441.630, 441.637, 443.001, 443.400-443.455, 443.705-443.785, 443.886 & 682.025
Statutes/Other Implemented: ORS 441.025, 441.055, 441.615, 441.630, 441.637, 443.001, 443.400-443.455, 443.705-443.785, 443.886 & 682.025
APD 67-2024, amend filed 12/05/2024, effective 12/10/2024
APD 27-2024, temporary amend filed 06/18/2024, effective 06/18/2024 through 12/14/2024
APD 8-2024, adopt filed 02/26/2024, effective 03/01/2024

Or. Admin. R. 411-064-0013 Department Identified Projects

(1) The Department may at its discretion identify key priority areas based on review of the regulatory environment in long term care settings. The Department may request proposals focused on identified priority areas that improve resident quality of care and safety or enhance the dignity, independence, individuality, personal choice and autonomy of residents. Proposed projects must meet the criteria of paragraph (2) of OAR 411- 064-0000.

(2) The Department will issue a solicitation for projects addressing the identified priority area(s). The Department shall publicly announce funding opportunities using multiple standard communication channels, including but not limited to publicly posting on the Department website and the state’s procurement system. Each announcement will include:

(a) Instructions for submitting proposals.

(b) Pertinent dates regarding the process and funding decisions.

(d) Evaluation criteria focused on benefiting residents and advancing quality care, as described in section (2) of OAR 411-064-0000.

History

Statutory/Other Authority: ORS 410.070, 441.025, 441.615, 441.637, 442.015, 443.001, 443.400-443.455, 443.705-443.785 & 443.886
Statutes/Other Implemented: ORS 410.070, 441.025, 441.055, 441.615, 441.630, 443.001, 443.400-443.455, 443.705-443.785, 443.886 & 682.025
APD 67-2024, adopt filed 12/05/2024, effective 12/10/2024
APD 27-2024, temporary adopt filed 06/18/2024, effective 06/18/2024 through 12/14/2024

Or. Admin. R. 411-064-0015 Senior Emergency Medical Services Pilot Projects

(1) The Department shall provide funding and monitor local public sector pilot projects that:

(a) Provide innovative strategies for addressing the emergency medical services needs of this state’s increasing number of aging residents who receive care and services in residential and long term care facilities.

(b) Encourage the efficient and appropriate use of senior emergency medical services.

(d) Encourage unique community-based responses to challenges faced by local communities in meeting their residents’ needs for senior emergency medical services.

(2) Specific criteria for pilot projects will be outlined in the funding solicitation. The Senior Emergency Medical Services Advisory Council (Council) shall advise and make recommendations to the Department concerning minimum standards and data reporting requirements for the pilot projects funded.

(3) The Department, with advice and recommendations from the Council, will negotiate with the successful applicants concerning required timelines, measurables and reporting requirements to be developed upon execution of the Grant Agreement.

History

Statutory/Other Authority: ORS 410.070, 441.025, 441.615, 441.637, 442.015, 443.001, 443.400-443.455, 443.886 & 682.025
Statutes/Other Implemented: ORS 410.070, 441.025, 441.055, 441.615, 443.001, 443.400-443.455, 443.886, 682.015 & 682.025
APD 67-2024, adopt filed 12/05/2024, effective 12/10/2024
APD 27-2024, temporary adopt filed 06/18/2024, effective 06/18/2024 through 12/14/2024

Or. Admin. R. 411-064-0020 Fund Distribution

(1) The Department shall apply evaluation criteria stated in the formal solicitation requirements to approve or deny any proposal.

(2) The Department will notify all applicants, in writing, concerning whether a proposal is approved, in need of additional information, or not approved.

(3) Notification regarding proposals that are not approved will include an overview of the reasons for which the application did not receive approval.

(4) The Department will only authorize awards from the Fund to the extent that funds are available as specified by the Oregon State Treasury.

History

Statutory/Other Authority: ORS 441.025, 441.615, 441.637, 443.001, 443.400-443.455, 443.705-443.785, 443.886 & 682.025
Statutes/Other Implemented: ORS 441.025, 441.055, 441.615, 441.637, 443.001, 443.400-443.455, 443.705-443.785, 443.886 & 682.025
APD 8-2024, adopt filed 02/26/2024, effective 03/01/2024

Or. Admin. R. 411-064-0030 Fund Accounting and Oversight

(1) Entities that receive funding are required to account for and report use of Fund monies using the method and forms specified by the Department.

(2) Records related to funded projects, project evaluation, and Fund spending must be retained by Fund recipients for a period of six years following the last payment for an approved project.

(3) All payments authorized or issued under the Fund are subject to audit at the discretion of the Department.

(4) The Department may seek financial or legal action against persons or entities which have misused Fund monies or provided false information during the solicitation process, implementation, or reporting phase of projects financed by the Fund. Legal actions may include but are not limited to withholding of payments or further disbursements, initiating a civil action, and exercising civil remedies available to recover Fund payments, and referring the matter for criminal prosecution.

History

Statutory/Other Authority: ORS 441.025, 441.615, 441.637, 443.001, 443.400-443.455, 443.705-443.785, 443.886 & 682.025
Statutes/Other Implemented: ORS 441.025, 441.055, 441.615, 441.637, 443.001, 443.400-443.455, 443.705-443.785, 443.886 & 682.025
APD 67-2024, amend filed 12/05/2024, effective 12/10/2024
APD 27-2024, temporary amend filed 06/18/2024, effective 06/18/2024 through 12/14/2024
APD 8-2024, adopt filed 02/26/2024, effective 03/01/2024

Division 65 SPECIALIZED LIVING SERVICES CONTRACTS

Or. Admin. R. 411-065-0000 Purpose

The purpose of these rules is to establish standards for specialized living service contracts. The standards provide an enhanced continuum of quality care in a home-like environment for specific target groups who are eligible for a live-in attendant, but because of special needs, are unable to live independently or receive services in other community-based care facilities and who would otherwise require nursing facility care. Services provided to residents in the Specialized Living Services Program are Medicaid home and community-based services, which may include specific services required because of physical, intellectual, or behavioral limitations in meeting self-care needs.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13
SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13
SSD 19-1991, f. & cert. ef. 10-10-91
SSD 5-1982, f. 5-12-82, ef. 5-15-82

Or. Admin. R. 411-065-0005 Definitions

(1) "Activities of Daily Living (ADL)" means activities usually performed in the course of a normal day in an individual's life, such as eating, dressing, bathing and personal hygiene, mobility, bowel and bladder control, and behavior.

(2) "Area Agency on Aging (AAA)" means the Department of Human Services (DHS) designated agency charged with the responsibility to provide a comprehensive and coordinated system of services to seniors or people with disabilities in a planning and service area. For purposes of these rules, the term Area Agency on Aging (AAA) is inclusive of both Type A and Type B Area Agencies on Aging as defined in ORS 410.040 through 410.300.

(3) "Brain Injury" means sudden onset of a neurological disorder secondary to disease or trauma.

(4) "Client or Resident" means an individual for whom payment is made under Oregon's Title XIX.

(5) "Change of Ownership" means a change in the individual or organization responsible for operating the program. Events which change ownership include but are not limited to the following:

(a) The form of the legal organization of the owner is changed (e.g., sole proprietor forms a partnership or corporation; a corporation or partnership dissolves);

(b) The title of the organization is transferred to another party;

(d) The facility which is the site of the specialized services program terminates its contract for specialized services with the provider.

(6) "Cost Effective" means a comparison between service costs to the target group absent the specialized services and the service costs to the target group with the specialized services in relation to the goal of helping the members of the target group attain more independent living. Cost comparisons should include short-term and long-term costs and benefits, and the difference, if any, between local costs and average statewide costs for providing comparable services.

(7) "Department" means the Department of Human Services, Seniors and People with Disabilities (SPD).

(8) "Provider" means an organization or individual who contracts with the Department to coordinate and implement the specialized services.

(9) "Service Plan" means the observation, assessment, care planning and documentation of the client's physical, cognitive and psycho-social needs, and the supervision, coordination and documentation of the services provided to meet those needs.

(10) "Special Approval" means approval given by the Department and the local AAA to a provider offering specialized services that meet the intent of these rules. The approval is granted only to a specific location and provider and is not transferable.

(11) "Specialized Services" means identifiable services designed to meet the needs of persons in specific target groups which exist as the result of a problem, condition or dysfunction resulting from a physical disability or a behavioral disorder and require more than basic services of other established programs. These services will be directed toward helping the residents toward more independent living.

(12) "Target Group" means any group of persons with similar needs based on specific and identified disabilities of brain injury, brain injury quadriplegic, brain injury paraplegic, or quadriplegic, who are eligible for a live-in attendant, and who need restorative care that cannot be provided in existing services in Residential Care Facilities, Adult Foster Homes, or other Community Based Care Settings.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 26-2006, f. 8-22-06, cert. ef. 9-1-06
SSD 19-1991, f. & cert. ef. 10-10-91
SSD 5-1982, f. 5-12-82, ef. 5-15-82

Or. Admin. R. 411-065-0015 Approval Procedure

(1) Any person desiring to provide specialized services under the provision of these rules must request approval by submitting the following information in writing to the Department and local AAA:

(a) Name of the provider and address of the facility where services will be provided;

(b) Provider information regarding criminal history and signed Criminal Record Release Authorizations for supervisors and staff;

(d) Admission criteria consistent with OAR 411-065-0030;

(e) Program plans for providing services, including but not limited to the following:

(A) A description of supervisor and staff qualifications and training for the target group to be served;

(B) Specific staff to client ratios whenever clients are present, consistent with OAR 411-065-0025; and

(C) A description of client care management criteria including designating responsibility for Activities of Daily Living, specific specialized services for the target group.

(f) A description of facility space and equipment will be sufficient to meet the needs of the group served, including adaptations for and absence of barriers for non-ambulatory persons consistent with OAR 411-065-0045;

(g) A written policy implementing documentation and confidentiality requirements contained in OAR 411-065-0020 and 411-065-0040, and client rights requirements of 411-065-0046;

(h) Exit criteria consistent with OAR 411-065-0035;

(i) A statement of need for the specialized living services and how the services will be cost effective within the meaning of OAR 411-065-0005;

(j) Proposed annual budget identifying sources of revenue; and

(k) Any other information about the provider or target groups as the Department may reasonably require that would facilitate the evaluation of the provider's request for approval.

(2) The Department and local AAA will conduct the initial review of the proposal for specialized living services. The AAA will provide the Department with a statement as to the need of such specialized services for that area and whether the services will be cost effective.

(3) Final approval of the proposal will be given by the Contract Administrator of the Department or his or her designee based on demonstrated need for the service, the cost effectiveness of the proposed program and evidence of the provider's ability to comply with these rules. The Department may attach conditions to the approval which limit, restrict, or specify other criteria for operation of the specialized living services program.

(4) The AAA will annually evaluate an approved program. The annual evaluation will re-examine the demonstrated need for the specialized services, the cost-effectiveness of the program and the provider's compliance with these rules, before the Department extends the program approval for another year.

(5) No approval is transferable or applicable to any location or persons other than those specified in the contract. A change of ownership of the provider will require a new request for approval in compliance with section (1) of this rule.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 26-2006, f. 8-22-06, cert. ef. 9-1-06
SSD 19-1991, f. & cert. ef. 10-10-91
SSD 5-1982, f. 5-12-82, ef. 5-15-82

Or. Admin. R. 411-065-0020 Compliance and Documentation

(1) Providers must document appropriate qualifications and training or supervisors and staff to provide care and services for the target group.

(2) Providers must maintain documentation that the approved services are in fact being provided to each client consistent with the care management plan of each client as recorded in each client's record.

(3) Authorized Department and AAA representatives must have immediate access to clients and records. "Access" to client records means the right to personally read charts and records in order to document continuing eligibility for payment, quality of care or alleged abuse. Authorized Department and AAA representatives must be able to make and remove copies of charts and records from the program's premises as required to carry out the above responsibilities.

(4) Authorized Department and AAA representatives must have the right to privately interview any client and any program supervisor or staff in carrying out the above responsibilities.

(5) Authorized Department and AAA representatives may, upon proper identification enter and inspect a facility which has a specialized living services approval and contract at any time to secure compliance with, or prevent a violation of provision of these rules.

(6) If authorized Department and AAA representatives are not permitted access consistent with the requirements of the rule, a search warrant may be obtained.

(7) Completed reports in inspections and evaluations except for confidential information, will be available to the public upon request, during business hours.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 26-2006, f. 8-22-06, cert. ef. 9-1-06
SSD 19-1991, f. & cert. ef. 10-10-91
SSD 5-1982, f. 5-12-82, ef. 5-15-82

Or. Admin. R. 411-065-0025 Staffing Requirements

(1) The provider must have staff of sufficient number and qualifications to meet the specialized needs of the target group.

(2) The number and quality of staff will be specified by the Department contract at the time of approval of the contract. At least one staff person must be in attendance at all times when a resident is on the premises.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 26-2006, f. 8-22-06, cert. ef. 9-1-06
SSD 19-1991, f. & cert. ef. 10-10-91
SSD 5-1982, f. 5-12-82, ef. 5-15-82

Or. Admin. R. 411-065-0030 Admission Criteria

(1) Each provider will develop admission criteria specific to the target group to be served.

(2) Each person must be stabilized in their physical and emotional adjustments to their disability and be able to participate in planning for services to meet their needs.

(3) Each Title XIX eligible person must be screened through the Department's Pre-Admission Screening process to determine suitability for placement based on specific admission criteria.

(4) First priority for any individual needing placement in a specialized living services setting will be a resident of a nursing facility or an acute hospital.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 26-2006, f. 8-22-06, cert. ef. 9-1-06
SSD 19-1991, f. & cert. ef. 10-10-91
SSD 5-1982, f. 5-12-82, ef. 5-15-82

Or. Admin. R. 411-065-0035 Exit Criteria

(1) A resident may choose to leave a specialized living services program whenever the program is no longer of benefit. A resident may also be moved if his or her condition deteriorates either mentally or physically to the point that his or her needs can no longer be met by the specialized living services program.

(2) At the time of termination, the resident will be given assistance in securing other placement and resources as needed.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 26-2006, f. 8-22-06, cert. ef. 9-1-06
SSD 19-1991, f. & cert. ef. 10-10-91
SSD 5-1982, f. 5-12-82, ef. 5-15-82

Or. Admin. R. 411-065-0040 Records

(1) The provider must maintain confidential records for each resident that contains the client's service plan, a copy of written client right rules and documentation that the rules have been discussed with the client, and all pertinent medical, social and financial information. Narrative entries describing the client's progress must be made no less often than every 30 days. Disclosure of information from any records must be in accordance with applicable laws and rules.

(2) The provider will keep records, books and documents as may be required by contract by the Department that will be made available for inspection to authorized state or federal personnel or persons authorized on their behalf.

(3) If the provider manages a client's money, a separate account record must be maintained in the client's name. The provider must not commingle, borrow from, or pledge any funds of a client.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 26-2006, f. 8-22-06, cert. ef. 9-1-06
SSD 19-1991, f. & cert. ef. 10-10-91
SSD 5-1982, f. 5-12-82, ef. 5-15-82

Or. Admin. R. 411-065-0045 Facility Standards

(1) Specialized living services that are provided in a community based setting must meet applicable zoning, building, housing, water, sewer and fire safety codes, rules, and regulations. If an exception or waiver is granted by a regulatory agency, the Department may accept the waiver or exception as long as it does not jeopardize the health, safety or welfare of the residents.

(2) The facility must be constructed in such a way as to be adaptable to meet the physical needs of the resident.

(3) The facility must maintain in good repair and operable conditions all structures, installed equipment, grounds and living units so as to maintain health and safety.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 26-2006, f. 8-22-06, cert. ef. 9-1-06
SSD 19-1991, f. & cert. ef. 10-10-91
SSD 5-1982, f. 5-12-82, ef. 5-15-82

Or. Admin. R. 411-065-0046 Client Rights

(1) Each client receiving specialized living services must be assured the same civil and human rights accorded to other citizens.

(2) The provider must document in writing, implement and fully inform each client of policies and procedures that protect clients' rights, including:

(a) Adequate food, housing, clothing, medical and health care and personal services;

(b) Visits to and from family members, friends, advocates, legal and medical professionals;

(d) Personal property;

(e) Privacy;

(f) Freedom from involuntary training, treatment, participation in activities and chemical or mechanical restraints;

(g) Religious practices as personally preferred;

(h) Voting;

(i) Access to community resources, including recreation, agency services.

(3) Providers shall not inflict or tolerate to be inflicted, physical, sexual or emotional abuse or punishment, intimidation, threats, exploitation, or neglect of clients.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 26-2006, f. 8-22-06, cert. ef. 9-1-06
SSD 19-1991, f. & cert. ef. 10-10-91

Or. Admin. R. 411-065-0047 Denial, Termination, Nonrenewal or Suspension of Approval

(1) Failure to Comply. The Department may deny, terminate, or refuse to renew provider approvals with providers who fail to comply with OAR 411-065-0000 through 411-065-0050 relating to specialized living services contracts.

(2) Emergency Suspension. When the Department has reason to believe that imminent danger to clients exists, the Department may immediately suspend the provider's approval and take action necessary to protect the health and safety of clients.

(3) Suspension or Termination of Payments. Since valid approval is a condition precedent to payment under a contract for specialized living services, the denial, termination, nonrenewal or suspension of approval provides grounds for suspending or termination payments under a specialized living services contract.

(4) Any denial, termination, nonrenewal or suspension shall be done in accordance with the rules of the division and ORS chapter 183.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 26-2006, f. 8-22-06, cert. ef. 9-1-06
SSD 19-1991, f. & cert. ef. 10-10-91

Or. Admin. R. 411-065-0048 Conditions for Payment

(1) No payment will be made to any person or organization from the Department for specialized living services without first obtaining approval from the Department as prescribed in these rules.

(2) Where specialized living services are provided in a residential care facility, or an adult foster home or independent living unit, the following requirements apply:

(a) Facilities that meet the definition of residential care facility in ORS 443.400 to 443.455 must be licensed and certified pursuant to OAR 411-054-0000 et seq.;

(b) Facilities that meet the definition of an adult foster home in ORS 443.705 to 443.825 must be licensed and certified pursuant to OAR 411-050-0400 et seq.; and

(c) Facilities that meet the definition of independent living units must meet the requirements of OAR chapter 411, division 030.

(3) The provider must sign a written contract with the Department as described in OAR 411-065-0050.

(4) The provider must bill the Department in accordance with established rules and guidelines.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 26-2006, f. 8-22-06, cert. ef. 9-1-06
SSD 19-1991, f. & cert. ef. 10-10-91

Or. Admin. R. 411-065-0049 Reimbursement

(1) The total monthly rate for specialized living services must not exceed the amount approved for each resident in accordance with the terms of the contract signed by the Department.

(2) Any add-on costs for nursing services must not exceed the RN Contract fee rate.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 26-2006, f. 8-22-06, cert. ef. 9-1-06
SSD 19-1991, f. & cert. ef. 10-10-91

Or. Admin. R. 411-065-0050 Contract

(1) Each specialized living services provider will have a contractual agreement with the Department specifying: type of administrative and direct care staff; terms of payment and procedures; roles and responsibilities of each party; and general provisions. The contract does not guarantee the number of Department clients who will be referred to or maintained in a program.

(2) Specialized living services contracts are effective for one year. In conjunction with the annual program evaluation, the Department will consider the results of the program evaluation prior to making its determination to renew the contract.

(3) The terms of the contract will establish the conditions upon which the contract may be terminated. A provider has no right to continuation of a specialized living services contract beyond the specific year in which a written contract has been executed. Approval of a provider's specialized living services program pursuant to OAR 411-065-0015 does not create an express or implied contract in the absence of a fully executed written contract with the Department.

History

Statutory/Other Authority: ORS 410.070
Statutes/Other Implemented: ORS 410.070
SPD 26-2006, f. 8-22-06, cert. ef. 9-1-06
SSD 19-1991, f. & cert. ef. 10-10-91
SSD 5-1982, f. 5-12-82, ef. 5-15-82

Division 66 REGISTRATION AND CERTIFICATION STANDARDS FOR ADULT DAY SERVICES PROGRAMS

Or. Admin. R. 411-066-0000 Statement of Purpose

(1) Adult day services are community-based group programs designed to meet the service needs of aging and people with physical disabilities in a structured non-residential setting.

(2) These rules:

(a) Create a registry of adult day services programs and describe the process and criteria for listing on the registry.

(b) Allow state certification for programs enrolled as a provider with the State of Oregon to provide Medicaid-funded adult day services to Medicaid-eligible individuals in home and community-based settings. Certification by the Department of Human Services (DHS), Aging and People with Disabilities (APD) is intended to fulfill the Centers for Medicare and Medicaid Services (CMS) requirements of "state certified" adult day service programs with the purpose of continuing eligibility criteria for Medicare beneficiaries.

History

Statutory/Other Authority: ORS 409.050, 410.070, 410.490, 410.495, 413.085
Statutes/Other Implemented: ORS 410.485 - 410.495
APD 10-2019, amend filed 02/13/2019, effective 02/15/2019
SPD 19-2007, f. & cert. ef. 11-7-07
SPD 6-2007(Temp), f. & cert. ef. 5-15-07 thru 11-11-07
SDSD 4-1999, f. & cert. ef. 3-15-99
SSD 12-1992, f. & cert. ef. 12-1-92

Or. Admin. R. 411-066-0005 Definitions

(1) "Activities of Daily Living (ADL)" means those personal, functional activities required by an individual for continued well-being, which are essential for health and safety. Activities include eating, dressing and grooming, bathing and personal hygiene, mobility elimination, and cognition as described in OAR 411-015-0006.

(2) "Adult Day Services (ADS) Program" means a community-based group program designed to meet the needs of adults with functional impairments through service plans as defined in (23) of this rule. These structured, comprehensive, non-residential programs provide health, social, and related support services in a protective setting for less than 24 hours per day.

(3) "Aging and People with Disabilities (APD)" means the Aging and People with Disabilities program within the Department of Human Services.

(4) "Area Agency on Aging (AAA)" means the Department-designated agency charged with the responsibility to provide a comprehensive and coordinated system of services to older adults and adults with disabilities in a planning and service area. The term Area Agency on Aging is inclusive of both Type A and Type B Area Agencies on Aging as defined in ORS 410.040 to 410.30.

(5) "Background Check" means a criminal background check and abuse check under OAR chapter 407, division 007.

(6) "Case Manager (CM)" means a Department employee, or an employee of the Department's designee, that meets the minimum qualifications in OAR 411-028-0040 and who is responsible for service eligibility, assessment of need, offering service choices to eligible individuals, person-centered service planning, service authorization and implementation, and evaluation of the effectiveness of Medicaid-funded home and community-based services.

(7) "Certification" means to certify the individual adult day services program by measuring the ability of the adult day services program to meet the DHS, APD standards set forth in these rules.

(8) "Department" means the Department of Human Services (DHS).

(9) "Deputy Director" means the Deputy Director of the DHS, APD program, or that person's designee.

(10) "Exception" means an approval of a service plan granted to a specific individual that meets policy criteria allowing ADS attendance while living in an adult foster home.

(11) "Food Handler" means those persons involved in the supervision, preparation, or service of food in a restaurant or food service facility licensed under ORS 624.020 or 624.320. This includes, but is not limited to:

(a) Managers;

(b) Cooks;

(d) Dishwashers;

(e) Bartenders; and

(f) Bus persons.

(12) "Group" means:

(a) A program with 10 or more enrolled participants;

(b) Adult day services programs just beginning, with plans to enroll 10 or more participants; or

(13) "Initial Screening" means a screening required by the adult day service program that is conducted to evaluate a prospective participant's service requests and needs before accepting the individual for service. The extent of the screening needs to determine the ability of the program to meet the requests and needs of a participant based on the agency's overall service capability.

(14) "Long-Term Care Facilities (LTC)" means nursing facilities, residential care facilities, assisted-living facilities, and adult foster homes.

(15) "Mandatory Reporter" means all public or private officials as stated in ORS 124.050 - 124.095 are to report suspected abuse or neglect of a child, an older adult, a person with a physical disability, or the resident of a licensed care facility to the Department or to a law enforcement agency as required by OAR 411-020-0002.

(16) "Medicaid Performing Provider Number" means the numeric identifier assigned to an entity or person by the Department, following enrollment to deliver Medicaid-funded services as described in these rules. The Medicaid Performing Provider Number is used by the rendering provider for identification and billing purposes associated with service authorizations and payments.

(17) "Participant" means a person who is eligible and is receiving services in an adult day services program.

(18) "Person-Centered Service Plan" means the details of the supports, desired outcomes, activities, and resources required for a participant to achieve and maintain personal goals, health, and safety, as described in OAR 411-004-0030. The case manager completes the person-centered service plan. The person-centered service plan is the Medicaid Plan of Care.

(19) "Provider Enrollment Application and Agreement" refers to the conditions and agreements for being enrolled as a provider with the DHS, APD and to receive a provider number.

(20) "Rate Schedule" means the Medicaid reimbursement rate schedule maintained by the Department in OAR 411-027-0170.

(21) "Registry" means the registration database of all adult day services programs maintained by DHS, APD.

(22) "Representative" is a person either appointed by an individual to participate in service planning on the individual's behalf or an individual's natural support with longstanding involvement in assuring the individual's health, safety, and welfare.

(23) "Service Plan" means a written, individualized plan for the delivery of services by the ADS, developed by the ADS in conjunction with the individual or the individual's legal representative, DHS, or AAA case manager. The service plan:

(a) Reflects the individual's capabilities, choices, and if applicable, measurable goals, and managed risk issues; and

(b) Defines the division of responsibility in the implementation of the services.

(24) "Subject Individual (SI)" means an individual from whom the authorized agency, districts, and qualified entities conduct a criminal records check.

History

Statutory/Other Authority: ORS 409.050, 410.070, 410.490, 410.495, 413.085
Statutes/Other Implemented: ORS 410.485 - 410.495
APD 10-2019, amend filed 02/13/2019, effective 02/15/2019
SPD 19-2007, f. & cert. ef. 11-7-07
SPD 6-2007(Temp), f. & cert. ef. 5-15-07 thru 11-11-07
SDSD 4-1999, f. & cert. ef. 3-15-99
SSD 12-1992, f. & cert. ef. 12-1-92

Or. Admin. R. 411-066-0010 Registration

(1) All ADS programs that voluntarily provide APD with the information described in section (2) of this rule shall be placed on APD's ADS registry.

(2) Information on the registry must include, but is not limited to:

(a) The name and address of the ADS program.

(b) A checklist to determine the extent the ADS program is voluntarily complying with the standards set forth in OAR 411-066-0020.

History

Statutory/Other Authority: ORS 409.050, 410.070, 410.490, 410.495, 413.085
Statutes/Other Implemented: ORS 410.485 - 410.495
APD 10-2019, amend filed 02/13/2019, effective 02/15/2019
SPD 19-2007, f. & cert. ef. 11-7-07
SPD 6-2007(Temp), f. & cert. ef. 5-15-07 thru 11-11-07
SDSD 4-1999, f. & cert. ef. 3-15-99
SSD 12-1992, f. & cert. ef. 12-1-92

Or. Admin. R. 411-066-0015 Certification

ADS programs that enroll with APD to provide services must be certified.

(1) INITIAL CERTIFICATION.

(a) To receive APD Adult Day Service certification, which is required to become a DHS Medicaid-enrolled provider, an ADS program must complete all of the following certification process steps:

(A) Contact APD to schedule an initial on-site visit.

(B) Provide a cover letter detailing qualifications as an ADS.

(C) In preparation for the on-site inspection, the ADS will Complete the ADS certification self-assessment which demonstrates the program meets the standards for adult day services in OAR 411-066-0020.

(D) Participate in a follow-up on-site inspection by APD.

(b) APD must complete an on-site certification assessment visit, citing standards (OAR 411-066-0020) as "met" or "unmet".

(A) If all standards are met, APD shall certify the ADS program.

(B) If any of the standards are unmet, the application for certification shall be denied.

(i) The ADS program may bring the unmet standards into compliance and request APD complete a follow-up site certification assessment.

(ii) A request for a site certification reassessment must be made within 30 calendar days after denial. If the request for the site certification reassessment is more than 30 calendar days, the ADS program shall be required to resubmit the information in (1)(a)(B) - (D) of this rule.

(C) If the denial is upheld after a site certification reassessment, the ADS program may request an informal conference in writing within 10 business days of receipt of the denial notice. Within 10 business days of receipt of the request for an informal conference, the Deputy Director shall review all material relating to the denial of the certification.

(i) The Deputy Director shall determine, based on a review of the material, whether to uphold the denial.

(ii) If the Deputy Director does not sustain the decision, certification shall be granted immediately.

(iii) The decision of the Deputy Director is subject to a contested case hearing under ORS 183.413 to 183.470, if requested within 90 days.

(c) APD may perform an unannounced on-site certification review any time during the certification period to ensure quality and safety standards continue to be met.

(2) MEDICAID PROVIDER ENROLLMENT. The ADS program must be an enrolled Medicaid provider in order to be eligible to receive payment from the Department for claims in connection with services provided by the ADS. The criteria for Medicaid provider enrollment and issuance of a provider number include, but are not limited to:

(a) Meeting all program-specific requirements.

(b) Providing a copy of the ADS program’s current certification.

(c) Current business registration and assumed business name (ABN), if applicable, with the Oregon Secretary of State’s Corporation Division.

(d) Completing an Adult Day Services Medicaid Provider Enrollment Application and Agreement (PEA) upon enrollment and renewal and meeting all Medicaid provider enrollment requirements.

(e) Maintaining the insurance requirements as defined in the PEA.

(3) MAINTAINING CERTIFICATION. Certification for an ADS program may continue for up to two years, or longer as defined below, from the effective date, if the ADS program complies with the standards for certification as established in OAR 411-066-0020.

(a) ADS programs wanting to renew certification and Medicaid provider enrollment must:

(A) Complete an ADS certification self-assessment demonstrating the program meets these rules. ADS certification self-assessments received by DHS APD prior to the ADS certification expiration date may allow the ADS certification to remain in effect at the discretion of APD until a final recertification decision is issued.

(B) Participate in a follow-up on-site inspection by APD.

(b) APD must complete an on-site certification assessment form after the visit, citing standards (OAR 411-066-0020) as "met" or "unmet".

(A) If all standards are met, APD shall notify the ADS program that certification shall be renewed.

(B) If any of the standards are unmet, the application for certification shall be denied.

(i) The ADS program may bring the unmet standards into compliance and request APD complete a follow-up site certification assessment.

(iii) Depending upon the nature of the inadequacy, APD may perform a follow-up inspection to confirm compliance.

(iv) APD may immediately suspend certification for threat to the participant's health, safety, welfare, or failure to comply with the standards.

(C) If the site reassessment result is not accepted in full, or the follow-up inspection reveals non-compliance, APD may deny, revoke or refuse to renew the certification and provider enrollment. The ADS program shall be notified in writing of the decision.

(D) If the denial or revocation is upheld after reviewing the site reassessment results, or follow-up inspection, the ADS program may, submit a written request for an informal conference within 10 business days of receipt of the notice. Within 10 business days of receipt of the request for the informal conference, the Deputy Director shall review all material regarding the denial or revocation.

(i) The Deputy Director shall determine, based on a review of the material, whether to uphold the denial or revocation.

(ii) If the Deputy Director does not sustain the decision, certification shall be granted immediately.

(iii) The decision of the Deputy Director is subject to a contested case hearing under ORS 183.413 to 183.470 if requested within 90 days.

(c) APD may perform an unannounced on-site certification review any time during the certification period to ensure quality and safety standards continue to be met.

(4) Termination of Medicaid provider enrollment.

(a) Enrolled Medicaid providers of ADS may be denied enrollment, terminated, or prohibited from providing ADS for any of the following:

(A) Violation of any part of these rules.

(B) Violation of the protective service and abuse rules in OAR chapter 411, division 020 and OAR chapter 407, division 045.

(D) Failure to maintain Medicaid provider enrollment.

(E) Failure to provide copies of the records described in these rules to designated Department or Oregon Health Authority entities.

(F) Failure to comply with the Background Check rules in OAR 407-007-0200 through 407-007-0370.

(b) Enrolled Medicaid providers may appeal a termination of their Medicaid provider number based on OAR 407-120-0360(8)(g) and OAR chapter 410, division 120, as applicable.

(c) Enrolled Medicaid providers of ADS must provide advance written notice to the Department at least 30 days prior to no longer providing ADS.

History

Statutory/Other Authority: ORS 409.050, 410.070, 410.490, 410.495, 413.085
Statutes/Other Implemented: ORS 410.485 - 410.495
APD 10-2019, amend filed 02/13/2019, effective 02/15/2019
SPD 19-2007, f. & cert. ef. 11-7-07
SPD 6-2007(Temp), f. & cert. ef. 5-15-07 thru 11-11-07

Or. Admin. R. 411-066-0020 Standards for Adult Day Services Programs

(1) SERVICE PLANS. ADS program participants must have a service plan that is based on individually assessed service needs and the ADS program's ability to provide services to meet the participants need. The service plan must include the following:

(a) Intake Screening. The intake screening must be completed by the ADS prior to admission to determine the appropriateness of the ADS program for the participant and that the participant's needs are within the scope of the ADS program.

(b) Application. An application or enrollment agreement must be completed and include all of the following:

(A) Applicant's personal identifying information.

(B) Information regarding health, safety, and emergency needs.

(A) Functional abilities and disabilities.

(B) Strengths and weaknesses.

(D) Preferences, interests, likes and dislikes.

(E) Medical condition and medications.

(F) Personal care.

(G) Assistance required with activities of daily living.

(H) A statement on the ability to live independently.

(I) Any other information helpful to developing the service plan, such as life history.

(d) Written Service Plans. The service plan, which is based on the assessed needs, strengths, and abilities of the participant, must include realistic long and short-term objectives. The service plan must:

(A) Specify number of days per week of attendance.

(B) Define the services to be provided.

(D) Identify staff responsible for providing or monitoring service delivery.

(E) Include an activity plan that is based on the interests, needs, and abilities of the participant.

(e) A disclosure statement that describes the ADS program's range of care and services, including:

(A) Criteria for admission and discharge; and

(B) Fees and arrangements for payment, including insurance coverage or other payment sources.

(f) Coordination of Care. The need for coordination of care must be considered for each participant. If coordination of care is needed and the participant is receiving services from another agency or resides in a community-based care setting, the ADS service plan must be developed to acknowledge, and not duplicate, the services provided by that agency or facility.

(g) Service Documentation and Reassessment.

(A) Progress notes on each participant must be written at least quarterly, reflecting a review of the service plan.

(B) Reassessing the participant's needs and reevaluating the appropriateness of the service plan must be completed not less than semiannually.

(C) A reassessment of the participant's needs and service plan must also be completed as needed when significant changes occur in the participant's functional ability, service needs, health status, or living situation.

(2) PARTICIPANT RECORDS.

(a) All ADS programs must maintain a roster of all participants with dates of admission and discharge.

(b) The ADS programs must maintain a daily attendance record, which documents the date and time the participant attends the ADS program.

(A) Intake screening and application forms.

(B) Photograph of participant and statement of use, such as identification, news articles, with a signed release by the individual or representative.

(C) Medical information. The ADS program must obtain and document medical information to assist in developing a service plan. A participant's medical information must be reviewed semi-annually and the review must be notated in the participant's record.

(i) Physician's name and contact information.

(ii) Hospital's name and contact information.

(iii) A list of the participant's medication.

(iv) Advance health care directive form, if the participant has completed a directive.

(v) A Physician's Order for Life Sustaining Treatment (POLST), a statement that none has been signed, or a completed form developed by the ADS program to document resuscitation status.

(D) Nutritional status assessment including medically prescribed dietary needs, food allergies, preferred diet (i.e. vegetarian, vegan), and cultural or religious preference.

(E) Person-Centered Service plan, including all information found in section (1) of this rule.

(F) Correspondence.

(G) Transportation Plans. Transportation planning must:

(i) Specify the arrangements for transportation to and from the ADS program; and

(ii) Arrange for transportation enabling participants to attend ADS program-sponsored outings.

(H) The ADS program's progress notes.

(I) Emergency contact information with at least two contacts (i.e. the participant's designated representative and others as indicated).

(J) Emergency Medical Response for Participants. ADS programs must have a written procedure for handling participant medical emergencies. This documentation must include:

(i) Procedures for notification;

(ii) Transportation arrangements; and

(iii) Provision for escorts, if necessary.

(3) SERVICES. The ADS program must provide the following services and supports:

(a) ADL Assistance. This includes assistance and supervision with activities of daily living.

(b) Social Services. The following social services, if identified on the service plan, must be provided to participants:

(A) Resources for mental health counseling within the community;

(B) Resources for other community services; and

(d) Monitoring for changes in cognition and making recommendations and providing resources within the community.

(e) Discharge planning and assisting in the transition.

(f) Information and resources for persons who are not appropriate for adult day services.

(g) Nutrition Services. ADS programs must screen and assess participants for nutrition needs and provide or refer for nutrition services within the community, as appropriate.

(h) Food Services. ADS programs must:

(A) Provide present participants at least one meal per day if they are present at a typical mealtime.

(i) The meal must consider the nutritional status assessment.

(ii) The meal must meet the adult daily nutritional requirement as established by state and federal regulations.

(iii) Menus for the coming week must be prepared and posted weekly in a location accessible to participants. The ADS must maintain weekly menus for one month.

(B) Make nourishing snacks available to participants between meals.

(i) Therapeutic Activities. ADS programs must take into consideration participant differences in age, health status, sensory deficits, needs, interests, abilities, and skills by providing opportunities for a variety of activities that encompass differing levels of involvement. The activities may include social, intellectual, cultural, emotional, physical and spiritual activities.

(j) Health-Related Services. The ADS program must provide any health-related services as indicated on the participant’s service plan. Services may include nursing consultation services, prevention education, and restorative therapy (e.g. physical therapy or occupational therapy).

(4) PHYSICAL DESIGN, ENVIRONMENT, EMERGENCY STANDARDS, AND SAFETY.

(a) The facility housing the ADS program must comply with applicable state and local building regulations, zoning, fire, and health codes or ordinances.

(b) The facility must be designed in a way that it is accessible and functional in meeting the identified needs of the population it serves in accordance with the Americans with Disabilities Act as amended.

(A) Emergency Plan. Each physical location must develop, maintain, update and enforce an emergency plan for the protection of all persons in the event of an emergency. The written emergency plan must:

(i) Address fire, natural, and human caused events identified as a significant risk for the facility and locality.

(ii) Specify how the ADS program shall notify participants or the participant's representative of closure.

(iii) Be posted in an accessible location and provide the locations of fire extinguishers and exit routes.

(B) Follow appropriate fire and safety standards. The ADS must:

(i) Have an onsite fire inspection by the State Fire Marshall or local fire authority and meet inspection requirements.

(ii) Install a fire warning system.

(iii) Provide and maintain fire extinguisher in the number and class.

(iv) Maintain records of fire and evacuation drills. Fire and evacuation drills must be held at least once every six months.

(D) Have written protocol regarding sick or injured participants. This protocol must be provided to participants, family, and care providers upon admission.

(E) Have emergency first aid kits which are visible and accessible to staff. Personnel trained in first aid and CPR must be on available whenever participants are present.

(F) Must provide safe drinking water, as well as maintaining a supply of safe drinking water as part of the program's emergency disaster plan. Disposable paper cups, individual drinking cups, or drinking fountain must be provided.

(d) Excluding hallways, offices, restrooms, and storage spaces the ADS program must have:

(A) A minimum of 60 square feet of common floor space per participant.

(B) At least 80 square feet of common floor space per participant if 25 percent or more of the program participants are cognitively impaired or require the use of adaptive equipment.

(e) Cleaning and Maintenance.

(A) The physical building, premises, and all equipment must be maintained in a clean and sanitary condition, free of hazards, and in good repair.

(B) In facilities serving 16 or more persons, a utility sink must be provided.

(f) Heating, cooling, ventilation, and lighting must be appropriate for the age and physical condition of the participants.

(g) Flooring must be easily cleaned and made of a non-skid material.

(h) Stairways must have handrails and the stairs must be covered with non-skid material.

(i) Sufficient furniture for the entire participant population must be of sturdy construction that does not easily tip over or move when used for seating or support while walking.

(j) Outside space used for outdoor activities must be safe, and accessible to indoor areas and to those with a disability.

(k) Smoking, if permitted, must be supervised in a designated outdoor area that is adequately ventilated, and away from the main ADS program.

(l) The facility must have an accessible bathroom with a minimum of one toilet per 10 participants. Each bathroom must:

(A) Be equipped with a sink, grab bars, and call system appropriate to the population served.

(B) Function properly and be maintained in a sanitary and odor free condition.

(C) Contain an adequate supply of liquid hand soap, toilet tissue, and paper hand towels with a dispenser or an electrical hand dryer.

(m) There must be sufficient private space for:

(A) Consultation between staff and participant.

(B) The participant to rest.

(D) Storage of files, records, recreational and cleaning supplies.

(n) Food Services, Standards, and Precautions. To ensure the provision of safe and sanitary food:

(A) All ADS programs serving 16 or more persons must meet the minimum requirements as outlined in the OHA, Public Health Division's Food Sanitation Rules, OAR chapter 333, division 150.

(B) ADS programs serving 15 or fewer persons, or a facility that purchases meals from an outside meal source or serves prepared meals, must meet the minimum requirements in OAR chapter 333, division 150 relating to the preparation, storage, and serving of food. Facilities serving 15 or fewer persons are not required to use commercial equipment.

(C) If the ADS employee's duties include preparing and serving food, the employee must have a food handler's certificate.

(D) Garbage, Refuse, and Recycling.

(i) Garbage and refuse containers must be insect-proof, rodent-proof, leak-proof and nonabsorbent.

(ii) Garbage and refuse must be removed at least once a week from the premises or more often if needed to prevent odors and attraction of insects, rodents and other animals.

(iii) Items being recycled must be clean and pending removal, stored in a manner that does not present rodent harborage or insect breeding.

(iv) Recycled items must be stored separately from food supplies and food preparation equipment.

(o) Sewage Disposal. If a community disposal system is available it must be utilized by the facility. If a septic system is utilized, it must be properly operating and meet code requirements.

(p) Standards for Handling Soiled Items. Written procedures for the safe handling of soiled items minimizing the potential for the spread of communicable diseases must be established. Such procedures must include:

(A) Soiled item disposal and storage;

(B) Hand washing;

(D) Preventing contamination.

(5) Medication and nursing services. If provided by the ADS program, the ADS must:

(a) Designate a secured area for storing labeled medication away from the participant activity area.

(b) Have a written medication management policy, approved by a Registered Nurse or Pharmacist. This policy must designate which staff are trained and authorized to administer medications.

(d) Meet local health department standards regarding infection control and communicable diseases.

(6) STAFFING.

(a) Program Director. To meet certification standards, the program director must meet the following minimum qualification standards:

(A) Be at least 21 years of age; and

(B) Have a:

(i) Bachelor's degree in health care or management; or

(ii) High school diploma and have at least two years of professional or management experience within the five years prior to becoming program director.

(b) Employees and Volunteer Requirements. All employees and volunteers must:

(A) Comply with the criminal history and abuse check rules in OAR 407-007-0200 through 407-007-0380. There must be written procedures to evaluate and determine employment status based on criminal findings.

(B) Background checks are to be completed every two years on all staff and volunteers.

(i) Potentially disqualifying condition listed in OAR 125-007-0270.

(ii) Disqualifying condition as described in OAR 407-007-0275.

(iii) Potentially disqualifying condition as described in OAR 407-007-0279 and OAR 407-007-0290.

(D) Be competent and have education or experience dealing with the adult day services population.

(E) Comply with standards for tuberculosis testing and hepatitis immunization specified by the local public health department.

(A) The staff to participant ratio must be a minimum of one staff person to six participants.

(B) ADS programs serving over 50 percent of participants who require full assistance with three or more activities of daily living must have a staff to participant ratio of one to four.

(i) As paid staff;

(ii) Meet the job qualifications;

(iii) Have designated responsibilities;

(iv) Have a signed written job description; and

(v) Documentation of volunteers' schedule in the facility.

(D) Each ADS program located in a facility, such as a hospital, nursing facility, senior center, church, or community-based care facility, must be separate and distinct with designated staff and staff hours committed to the ADS program.

(E) To ensure adequate care and safety of participants, there must be qualified substitute staff available.

(d) Staff and Volunteer Orientation and Training. The adult day service must provide a general orientation and continued in-service training for paid staff and volunteers including, but not limited to:

(A) Program mission and philosophy.

(B) Fire, safety, and disaster planning, building evacuation, and emergency procedures.

(D) Standard infection control.

(E) CPR and first aid.

(F) Body mechanics and transfer techniques.

(G) Personal care.

(H) Behavioral intervention and behavior acceptance and accommodations.

(I) Understanding each participant’s service plan.

(7) ADMINISTRATION.

(a) Plan of Operation. Each ADS program must develop and implement a plan of operation that must be reviewed and, if necessary, revised annually. The plan must include:

(A) A definition of the target population.

(B) Geographical definition of the service area.

(D) Hours and days of operation.

(E) Admission and discharge policies and procedures.

(F) Staffing.

(G) Statement of participants' rights and grievance procedure.

(H) Rates.

(I) Procedures for reporting suspected abuse.

(J) A written policy for helping participants who wander including providing some type of identification.

(K) Emergency policies and procedures, including a policy on facility-wide medical emergencies.

(b) Discharge and Grievance Policy.

(A) The ADS program must develop a participant discharge policy that includes at a minimum:

(i) Timeframe for discharge;

(ii) Criteria for discharge;

(iii) Notification of discharge procedures;

(iv) How to appeal a discharge; and

(v) End of service.

(vi) When possible, the ADS program must provide referrals or resources to the participant for services from other organizations whether the discharge was voluntary or involuntary.

(B) The discharge notification provided to the participant and representative must include:

(i) Reasons for discharge and a discharge summary.

(ii) A minimum of two weeks' notice while an alternative plan is being developed.

(iii) Notice may be issued with less than two weeks when the service needs have increased to the level at which the ADS program is no longer meet the participant's needs safely or adequately.

(iv) Advance notice when the participant presents imminent danger to other participants or themselves.

(C) A grievance policy for resolving participants' concerns or complaints about the ADS program must be developed and include, but not be limited to:

(i) Filing process and time frames.

(ii) A written response to the participant.

(iii) A written record of the grievance must be on file at the facility.

(A) As part of the quality assurance plan, the ADS program must develop policies and procedures for evaluating operation and services.

(B) The plan must include a survey of employees, participants, families or services providers and referral services discussing all aspects of the ADS program.

(C) The ADS program must use the evaluation to determine further action to ensure continuous improvement in service delivery.

(D) A written report summarizing the annual evaluation findings must be posted for review with implementation or correction time tables. The report shall be maintained as part of the facilities permanent record and provided to the:

(i) ADS program's advisory committee or Board of Directors; and

(ii) State's ADS program coordinator.

(d) Personnel Policies and Practices. The ADS program must have written personnel policies for both staff and volunteers.

(e) General Records Policies. The ADS program must have a records policy for administrative records and participants' records.

(A) The ADS programs must maintain administrative records including, but not limited to:

(i) Personnel records.

(ii) Fiscal records.

(iii) Statistical reports.

(iv) Government-related records.

(v) Contracts.

(vi) Organizational records.

(vii) Quality improvement or quality assurance plans.

(viii) Advisory committee minutes.

(ix) Certificates of biennial fire and health inspections as required by local ordinances, and incident reports.

(B) The ADS program must retain records for:

(i) Clinical records, seven years.

(ii) Financial and other records, at leave five years from the date of service.

(f) Staff must hold personal information about participants and their families in confidence, treating all participants with respect and dignity. The ADS program must develop a written policy on confidentiality and the protection of participants' records. The policy must define procedures for the use and removal of:

(A) Participants' records.

(B) Conditions for release of information.

(C) Conditions that may require authorization, in writing, by the participant or their representative for the release of information, not otherwise authorized by law.

History

Statutory/Other Authority: ORS 409.050, 410.070, 410.490, 410.495, 413.085
Statutes/Other Implemented: ORS 410.485 - 410.495
APD 10-2019, amend filed 02/13/2019, effective 02/15/2019
SPD 19-2007, f. & cert. ef. 11-7-07
SPD 6-2007(Temp), f. & cert. ef. 5-15-07 thru 11-11-07
SDSD 4-1999, f. & cert. ef. 3-15-99
SSD 12-1992, f. & cert. ef. 12-1-92

Division 67 CONTINUING CARE RETIREMENT COMMUNITY

Or. Admin. R. 411-067-0000 Definitions

(1) "Act" means the Continuing Care Retirement Community Provider Registration Act, ORS Chapter 101.

(2) "Activities of Daily Living" mean those personal, functional activities required by an individual for continued well-being, which are essential for health and safety. Activities consist of eating, dressing/grooming, bathing/personal hygiene, mobility (ambulation and transfer), elimination (toileting, bowel, and bladder management), and cognition/behavior.

(3) "Adjacent Properties" mean two or more pieces of land that are separated by no more than 1000 feet.

(4) "Affiliated Organization" means any profit or not-for-profit corporation, limited liability company, partnership, sole proprietorship, sponsoring entity, or other form of legal entity:

(a) That is the lessor of the real property on which the facilities of the provider are situated;

(b) That a provider has identified in the disclosure statement as described in OAR 411-067-0050; or

(c) In which any director, executive officer, or manager of a provider has an equity or debtor financial interest in excess of $10,000.

(5) "Applicant" means a provider that has submitted an application and disclosure statement to register as a continuing care retirement community.

(6) "Application Fee" means a fee charged to an individual, prior to execution of a residency agreement, apart from an entrance fee.

(7) "Assistant Director" means the assistant director of the Division, or the assistant director's designee.

(8) "Audited Financial Statement" means a provider's financial statement that has been prepared in accordance with the GAAP and audited by an independent certified public accountant in accordance with generally accepted auditing standards. The audited financial statement declares whether the continuing care retirement community was or was not in compliance with its reserve requirements during the audited period.

(9) "Certificate of Registration" means a document that is issued and signed by the Assistant Director of the Division that indicates the provider is registered as a continuing care retirement community.

(10) "Closed Bed Long Term Care Facility" means a licensed nursing facility in a continuing care retirement community that is used exclusively by individuals receiving long term care services under a residency agreement.

(11) "Continuing Care" means directly furnishing or indirectly making available, upon payment of an entrance fee and under a residency agreement, housing and health-related services for a period greater than one year to an individual not related by blood or marriage to the continuing care retirement community provider that is furnishing care. The term applies regardless of whether the care is provided in the continuing care retirement community or in another setting designated by the residency agreement. Health-related services may be provided at a location that is not a part of the continuing care retirement community.

(12) "Continuing Care Retirement Community (CCRC)" means a provider that agrees to furnish continuing care to a resident under a residency agreement. A continuing care retirement community may consist of one or more facilities.

(13) "Department" means the Department of Human Services.

(14) "Division" means the Seniors and People with Disabilities Division of the Department of Human Services.

(15) "Entrance Fee" means an initial or deferred transfer to a provider of a sum of money or property, made or promised to be made as full or partial consideration, for acceptance of one or more residents in a continuing care retirement community. A fee that is less than the sum of the regular periodic charges for one year of residency is not an entrance fee.

(16) "Facility" means physical structures of a continuing care retirement community, on one site or on adjacent properties, operating under the same name and managed as a part of the same continuing care retirement community.

(17) "Generally Accepted Accounting Principles (GAAP)" mean the accounting principles or standards generally accepted in the United States, including but not limited to the accounting standards codification and interpretations thereof as published by the Financial Accounting Standards Board.

(18) "Health-Related Services" includes but is not limited to providing nursing care, assistance with activities of daily living, long-term care, and rehabilitative services.

(19) "Indirect Ownership" means any profit or not-for-profit corporation, limited liability corporation, partnership, sole proprietor, sponsoring entity, or other form of legal entity with ownership interest in an affiliated organization or an indirect economic interest in the net residual value of the provider or both.

(20) "Liquid Reserve" means cash, marketable securities, and net receivables that may be easily converted to cash.

(21) "Living Unit" means a room, apartment, cottage, or other area set aside for the exclusive use of residents.

(22) "Long Term Financing" means funds acquired by borrowing, or sale of bonds, the balance of which is not required to be paid back during the same fiscal year in which they were borrowed (or "sold" in the case of bonds).

(23) "Manager" means a person, corporation, partnership, association, or other legal entity that enters into a contractual arrangement with the provider to manage the continuing care retirement community. "Manager" does not include individuals employed by the provider, corporations affiliated with the provider, or other legal entities within the provider's supervision or control.

(24) "New Continuing Care Retirement Community" means a continuing care retirement community being initially registered by a provider but does not apply to the remodeling or expansion of an existing continuing care retirement community's facility on the same or an adjacent site or the annual renewal of an existing continuing care retirement community registration.

(25) "Omit a Material Fact" means the failure to state a material fact required to be stated in any disclosure statement or registration.

(26) "Open Bed Long Term Care Facility" means a licensed nursing facility in a continuing care retirement community that admits individuals who have not signed a residency agreement.

(27) "Ownership Interest" means the possession of equity in the capital, stock, profits, or residual value of the provider.

(28) "Provider" means an owner or operator, whether a natural person, partnership, trust, limited liability company, corporation, or unincorporated association, however organized, of a new or existing continuing care retirement community, whether operated for profit or not, that provides, plans to provide, or agrees to provide, continuing care to one or more unrelated residents under a residency agreement.

(29) "Regular Periodic Charges" mean basic monthly fees charged to a resident on an ongoing basis.

(30) "Residency Agreement" means a contract between a provider and a resident for the provision of continuing care for a period of greater than one year.

(31) "Resident" means an individual who enters into a residency agreement with a provider or who is designated in a residency agreement to be provided with continuing care.

(32) "Residents' Council (Council)" means a body of residents of a continuing care retirement community who are elected by the residents and recognized by the provider as representing the interests of the residents.

(33) "Residual Value" means the net assets upon the liquidation or dissolution of the provider.

(34) "Solicit" means all actions of a provider in seeking to have individuals pay an application fee or enter into a residency agreement by any means including without limitation personal, telephone, mail, or any media distributed or communicated by any means.

(35) "Start-Up Losses" means the excess of expenses over revenues that occur or are anticipated to occur.

(36) "These Rules" mean the rules in OAR chapter 411, division 067.

History

Statutory/Other Authority: ORS 101.150 & 410.090
Statutes/Other Implemented: ORS 101.020
SPD 8-2011, f. 3-31-11, cert. ef. 4-1-11
SDSD 5-1999, f. 4-30-99, cert. ef. 5-1-99
SSD 9-1990, f. & cert. ef. 3-26-90

Or. Admin. R. 411-067-0010 Registration Required

(1) Providers who operate a CCRC must register with the Division.

(2) If a provider operates more than one CCRC facility, each facility must be registered with the Division and separately listed on the disclosure statement.

(3) No entity shall claim to be a CCRC in Oregon without being registered pursuant to these rules.

(4) A new CCRC provider must register with the Division before:

(a) Entering into a residency agreement with a nonresident;

(b) Soliciting either a prospective resident or nonresident to pay an application fee or execute a residency agreement; or

(5) The provider must apply for registration with the Division on forms prescribed by the Division as described in OAR 411-067-0020. The application must include a disclosure statement as described in OAR 411-067-0050.

(6) The Division shall issue a notice of filing to the applicant within 10 business days after receipt of the completed application for registration of a new CCRC and the initial registration fee.

(7) The Division shall enter an order registering the provider or rejecting the registration within 60 days of the notice of filing. If no order of rejection is entered within 60 days from the date of notice of filing, the provider shall be considered registered unless the provider and the Division agree in writing to an extension of time. If no order of rejection is entered within the time period as so extended, the provider shall be considered registered.

(8) The Division shall enter an order registering the provider if the Division determines that the requirements of these rules and ORS Chapter 101 have been met.

(9) The Division shall notify the applicant that the application for registration must be corrected within 30 days if the Division determines that any of the requirements of these rules and ORS Chapter 101 have not been met.

(a) The Division may enter an order rejecting the registration if the applicant does not meet the requirements within 30 days. The order shall include the findings of fact upon which the order is based and which may not become effective until 20 days after the end of the foregoing 30-day period.

(b) During the 20-day period, the applicant may petition for reconsideration and request a contested case hearing pursuant to ORS Chapter 183.

(c) If a contested case hearing has been requested, an order of rejection may not take effect, in any event, until a decision is rendered by the administrative law judge that sustains the Division's decision to reject the registration.

History

Statutory/Other Authority: ORS 101.150 & 410.090
Statutes/Other Implemented: ORS 101.030
SPD 8-2011, f. 3-31-11, cert. ef. 4-1-11
SDSD 5-1999, f. 4-30-99, cert. ef. 5-1-99
SSD 9-1990, f. & cert. ef. 3-26-90

Or. Admin. R. 411-067-0020 Registration

(1) APPLICATION FOR REGISTRATION:

(a) Application for registration must be made to the Division on forms prescribed by the Division. The application must include:

(A) The registration fee as described in section (2) of this rule;

(B) The annual disclosure statement as described in OAR 411-067-0050; and

(b) The application is not considered to be complete until the Division receives all required information and the registration fee.

(d) Application for registration must be made annually to the Division as described in this section.

(2) REGISTRATION FEE:

(a) The initial application for registration must be accompanied by a fee of $500.

(b) After the initial registration, the subsequent annual registration fee shall be $250 per facility.

(3) ISSUANCE OF REGISTRATION:

(a) The Division shall issue a certificate of registration to the provider once the provider has:

(A) Submitted a completed application, disclosure statement, registration fee, and other required information;

(B) Met the reserve requirement as described in OAR 411-067-0060; and

(b) The certificate of registration shall identify the provider as a CCRC and include:

(A) The name and address of the provider;

(B) The names and addresses of all facilities owned and operated by the provider;

(D) The following statement in a prominent location and typeface: "A certificate of registration does not constitute approval, recommendation or endorsement of the community by the Seniors and People with Disabilities, and this registration does not evidence the accuracy or completeness of the information set forth in the disclosure statement."

(c) The provider must use a copy of the certificate of registration as the cover page for the disclosure statement as described in OAR 411-067-0050.

History

Statutory/Other Authority: ORS 101.150 & 410.090
Statutes/Other Implemented: ORS 101.030 & 101.040
SPD 8-2011, f. 3-31-11, cert. ef. 4-1-11
SDSD 5-1999, f. 4-30-99, cert. ef. 5-1-99
SSD 9-1990, f. & cert. ef. 3-26-90

Or. Admin. R. 411-067-0050 Disclosure Statement

(1) All providers must file a disclosure statement with the Division upon initial application and annually thereafter. The disclosure statement must be on forms prescribed by the Division.

(2) DISCLOSURE STATEMENT: The disclosure statement must include:

(a) The rights and requirements of the residents described in OAR 411-067-0086;

(b) The names of the individuals who constitute the provider or, if the provider is a partnership, limited liability company, corporation, or other legal entity, whether for profit or not for profit, the name of the legal entity and each of the officers, directors, trustees, or managing general partners of the legal entity and a description of each individual's duties on behalf of the legal entity;

(c) The business address of the provider and a statement of whether the provider is an individual, partnership, limited liability company, corporation, or other affiliated organization;

(d) The names and business addresses of any individual having any more than a 10 percent direct or indirect ownership or beneficial interest in the provider, the percentage of the direct or indirect ownership or beneficial interest, and a description of each individual’s interest in or occupation with the provider;

(e) A statement as to whether the provider is or is not affiliated with any other organization of any kind, the extent of the affiliation, if any, and the extent to which the organization is responsible for the financial and contractual obligations of the provider;

(f) The provision of the Internal Revenue Code, if any, under which the provider or any affiliated organization is exempt from the payment of federal income taxes;

(g) The location and general description of the CCRC including the location and number of living units and licensed long term care beds considered part of the CCRC, and any other care facilities owned or operated by the provider. The provider must disclose the following about any proposed CCRC or other care facilities:

(A) The estimated completion date;

(B) A statement as to whether or not construction has begun; and

(h) The number of open bed long term care facility beds operated by the CCRC;

(i) A description of services provided or proposed to be furnished by the provider under its residency agreements including without limitation:

(A) The extent to which medical care, long term care, or health related services are furnished, and the locations where the services shall be furnished. If the services are furnished at a facility that is not registered as part of the CCRC’s campus, the provider must state the location where the services are furnished and any additional fees associated with the services; and

(B) The services made available by the CCRC at an extra charge over and above the entrance fee;

(j) A description of all fees required of each resident including the entrance fee, regular periodic charges, and the manner in which any additional fees or regular periodic charges shall be determined. The description must include:

(A) The circumstances under which the resident shall be permitted to remain in the CCRC in the event the resident is unable to pay regular periodic charges or other fees;

(B) The terms and conditions under which the residency agreement may be canceled by the provider or the resident or in the event of the death of the resident prior to or following occupancy of the living unit;

(C) In boldfaced type, the percentage of the entrance fee refund required by ORS 101.080 and the manner in which this percentage is calculated;

(D) The conditions under which a living unit occupied by a resident may be made available by the provider to another resident other than on the death of the resident executing the residency agreement;

(E) The manner by which the provider may adjust regular periodic charges or other recurring fees;

(F) A statement of the fees to be charged if the resident marries or divorces while at the designated CCRC, the terms concerning a resident’s spouse’s entry to or departure from a CCRC, and the consequences if a new spouse does not meet the requirements for entry; and

(G) The terms and conditions for the transfer of a resident out of the CCRC;

(k) The provider’s most recent audited financial statement. The audited financial statement may not have been prepared more than 16 months prior to the date of the initial application for registration;

(l) A copy of the residency agreement offered to the prospective resident by the provider;

(m) A statement on the cover page in a prominent location and typeface that registration of the CCRC does not constitute approval, recommendation, or endorsement of the CCRC by the Department, and that such registration does not evidence the accuracy or completeness of the information set forth in the disclosure statement;

(n) Copies of the primary written brochures and written promotional materials furnished to prospective residents;

(o) A full description of all contracts that the provider has entered into with affiliated organizations and an explanation of the financial impact that the contracts may have on residents;

(p) An affidavit signed by an authorized representative of the CCRC confirming that the disclosure statement is complete and accurate;

(q) If required, a copy of the escrow agreement as described in OAR 411-067-0070.

(r) Any person or legal entity named in subsection (b) or (d) of this section and any proposed or existing manager must disclose:

(A) Business experience in operation or management of CCRCs or other licensed long term care facilities;

(B) Whether the person or legal entity has been convicted of a crime;

(C) Whether the person has been a party to any civil action in which a judgment for damages was obtained or in which an injunction was issued against the person for fraud, embezzlement, fraudulent conversion, or misappropriation of property;

(D) Whether the person or legal entity has been a party to any civil action in which a judgment for damages was obtained or in which an injunction was issued against the person or legal entity for fraud, embezzlement, fraudulent conversion, or misappropriation of property;

(E) Whether the person or legal entity has had any state, federal permits, or licenses, suspended or revoked, or if a state or federal authority has disqualified the person or legal entity from providing services in the Medicare or Medicaid program in connection with the person or legal entity's business activities;

(F) The identity of any business or professional service entity in which the person or legal entity has a 10 percent or greater ownership interest and which the provider intends to employ to provide goods, services, or any other things of value; and

(G) The anticipated costs to the provider or a statement that such costs cannot presently be estimated.

(3) INITIAL DISCLOSURE STATEMENT: In addition to complying with all the provisions of section (2) of this rule, the provider must submit on behalf of a new CCRC a statement of the anticipated source and application of funds used or to be used in the purchase or construction of the CCRC including:

(a) An estimate of the cost of purchasing or constructing and equipping the CCRC that the provider expects to incur or become obligated for prior to the commencement of the operation of the CCRC;

(b) A description of any mortgage loan or other long term financing intended to be used for the financing of the CCRC;

(c) An estimate of the total entrance fees to be received from the residents at or prior to the commencement of operation of the CCRC based on projected occupancy at the time the CCRC commences operation; and

(d) An estimate of the funds, if any, anticipated to be necessary to pay for start-up losses.

(4) ANNUAL DISCLOSURE STATEMENT:

(a) In addition to the information required in section (2) of this rule, the annual disclosure statement must include:

(A) A copy of the certificate of registration. The certificate of registration must be used as the cover page for the annual disclosure statement;

(B) A disclosure of any change in ownership or manager;

(C) The frequency and the dates of the residents' council meetings or meetings with all residents of the CCRC as described in OAR 411-067-0083; and

(D) Copies of all notices of changes in regular periodic charges or notices of proposed changes in fees or services that were given to residents during the provider's most recently completed fiscal year.

(b) To amend an annual disclosure statement, a provider must file all amended documents and new materials with the Division.

(5) RIGHT OF REVIEW:

(a) The provider must notify prospective residents of their right to review the initial disclosure statement after entry of an order registering the provider and before the provider enters into any residency agreement with or on behalf of the prospective resident.

(b) The provider must make the current annual disclosure statement available to each resident and prospective resident.

(c) The provider must make copies of the initial disclosure statement available upon request. The initial disclosure statement must be available during regular business hours in the business office of the CCRC.

(6) DUE DATE FOR ANNUAL DISCLOSURE STATEMENT:

(a) If a certificate of registration is issued six months or more prior to the provider's fiscal year end, then the next annual disclosure statement and registration fee is due by the fourth month following the first fiscal year end, after the issuance date of the certificate of registration and annually thereafter.

(b) If a certificate of registration is issued less than six months prior to the provider's fiscal year end, then the next annual disclosure statement and registration fee is due by the fourth month following the second fiscal year end, after the issuance date of the certificate of registration and annually thereafter.

History

Statutory/Other Authority: ORS 101.150 & 410.090
Statutes/Other Implemented: ORS 101.050, 101.052 & 101.080
SPD 8-2011, f. 3-31-11, cert. ef. 4-1-11
SDSD 5-1999, f. 4-30-99, cert. ef. 5-1-99
SSD 9-1990, f. & cert. ef. 3-26-90

Or. Admin. R. 411-067-0055 Residency Agreement

(1) The provider and the prospective resident must sign and date a residency agreement before CCRC services begin.

(2) A copy of the agreement must be provided to the resident.

(3) The residency agreement must list in boldface type the percentage of the entrance fee to be refunded and the manner in which the percentage of the entrance fee is calculated.

History

Statutory/Other Authority: ORS 101.150 & 410.090
Statutes/Other Implemented: ORS 101.030, 101.050 & 101.080
SPD 8-2011, f. 3-31-11, cert. ef. 4-1-11
SDSD 5-1999, f. 4-30-99, cert. ef. 5-1-99

Or. Admin. R. 411-067-0060 Reserve Requirements

(1) A provider must establish and maintain at all times:

(a) A debt service liquid reserve in an amount equal to or exceeding the total of all principal and interest payments due during the next 12 months on account of a mortgage loan or other long term financing of the CCRC taking into consideration any anticipated refinancing; and

(b) An operating liquid reserve in an amount equal to or exceeding the total of the CCRC's projected operating expenses for three months. For the purpose of calculating the amount required for the operating liquid reserve, projected operating expenses include any anticipated expenses associated with providing housing or health related services included under all the residency agreements.

(2) If the provider does not meet the reserve requirements, the Division may require the provider to place the reserves in an escrow account.

(3) The division may allow withdrawal or borrowing from the reserves in an amount not greater than 20 percent of the provider's total required reserves.

(a) The Division shall only approve the borrowing or withdrawal if required:

(A) For making an emergency repair or replacement of equipment;

(B) To cover catastrophic loss that is not able to be covered by insurance; or

(b) No withdrawal or borrowing may be made from the reserves without the approval of the Division except upon a court order.

(c) All funds borrowed from the reserves must be repaid to the reserves within 18 months in accordance with a payment plan approved by the Division.

(4) The reserve requirement statement must identify:

(a) The total of all principal and interest payments due during the provider's previous fiscal year including any mortgage loans or other long-term financing;

(b) Any anticipated refinancing and any change in principal and interest payments expected during the next 12 months;

(d) Three months projected operating expenses. A provider must determine the three months projected operating expenses by taking the provider's previous year's audited financial statement and adding any projected increases or decreases in expenses for the next year, excluding depreciation and payments on long-term financing.

(5) New providers must determine their three months projected operating expenses by estimating their start-up, marketing, and personnel costs for the year of operation and divide the total costs by four. The projected budget must be provided to the Division. New providers must also submit an audited financial statement to the Division.

(6) Registered providers who build, purchase, or operate a new facility must immediately meet the full reserve requirements for that facility.

History

Statutory/Other Authority: ORS 101.150 & 410.090
Statutes/Other Implemented: ORS 101.060
SPD 8-2011, f. 3-31-11, cert. ef. 4-1-11
SDSD 5-1999, f. 4-30-99, cert. ef. 5-1-99
SSD 9-1990, f. & cert. ef. 3-26-90

Or. Admin. R. 411-067-0065 Provider Liquidation

If the provider is liquidated, the claims of the residents arising under residency agreements must be preferred claims that have priority over other unperfected claims against the provider's assets.

History

Statutory/Other Authority: ORS 101.150 & 410.090
Statutes/Other Implemented: ORS 101.065
SPD 8-2011, f. 3-31-11, cert. ef. 4-1-11

Or. Admin. R. 411-067-0070 Escrow Accounts

(1) ESCROW ACCOUNT REQUIRED. Prior to the Division issuing a certificate of registration to a provider for a new CCRC or new CCRC facility, the provider must establish an escrow account with a bank, trust company, or licensed escrow agent. A provider, otherwise in compliance with these rules, may not be required to establish an escrow account if the provider constructs one or more new physical structures, remodels, or expands on an existing CCRC facility on the same or adjacent site.

(a) The provider must directly deposit all entrance fees into the escrow account upon receipt. Entrance fees must be deposited into the escrow account prior to a resident being allowed to occupy the living unit in the new CCRC or new CCRC facility.

(b) The provider must maintain a current list that identifies the name and address of each individual who paid the entrance fee and the amount paid.

(2) ESCROW INSTRUCTIONS FILED WITH AGENT. Written escrow instructions that apply to all funds deposited into the escrow account must be filed with the escrow agent and include the following requirements:

(a) Funds in the escrow account must be placed in an interest-bearing account.

(b) Funds in the escrow account must be released to the provider only after the escrow agent receives a court order or a written authorization from the Division that the provider has complied with the requirements of ORS 101.070 and this rule. If the funds are authorized to be released to the provider by the Division, the accumulated interest must be paid to the provider or as otherwise directed by a court, and the provider shall be responsible for paying the escrow fee.

(c) An entrance fee that has been deposited in the escrow account and earned interest, less a proportionate share of the escrow fee, must be released to the individual who paid the entrance fee upon written authorization from the provider that the individual is entitled to a refund of the entrance fee. The written authorization must contain the name and address of the individual entitled to the refund and the amount of the entrance fee paid by the individual.

(d) If all entrance fees have not been released by 36 months after the date the escrow account is established, all entrance fees in the account and earned interest, less a proportionate share of the escrow fee, must be returned to the individuals who paid the entrance fees, unless the Division notifies the escrow agent in writing, prior to the 36 months, that an extension has been granted. The written notice of extension from the Division shall contain additional instructions for the escrow agent.

(3) ESCROW AGREEMENT. A copy of the escrow agreement must be submitted to the Division as described in OAR 411-067-0050.

(4) RELEASE OF FUNDS:

(a) Upon written request by the provider on a form prescribed by the Division, the Division shall approve the release of funds from escrow if the Division is satisfied that:

(A) The provider has received a certificate of occupancy by local authorities and has collected no less than 10 percent of entrance fees for each resident for no less than 50 percent of the total number of units;

(B) Anticipated proceeds of any first mortgage loan or other long term financing commitment plus funds from other sources in the actual possession of the provider are equal to not less than:

(i) 50 percent of the aggregate cost of constructing or purchasing, equipping, and furnishing the CCRC; and

(ii) 50 percent of the funds that the provider estimated in the disclosure statement as described in OAR 411-067-0050, to fund start-up losses of the CCRC; and

(C) A commitment has been received by the provider for any permanent mortgage loan or other long term financing commitment disclosed in OAR 411-067-0050 and any conditions of this commitment, prior to disbursement of funds, have been substantially satisfied other than completion of the construction or closing of the purchase of the CCRC.

(b) The Division shall review the request within 30 days and issue an order accepting or rejecting the request.

(A) If the Division approves the request, the Division shall notify the provider.

(B) If the Division rejects the release of escrow accounts:

(i) The Division shall issue an order rejecting the request. The order shall include the findings of fact upon which the order is based.

(ii) The provider may request a contested case hearing pursuant to ORS chapter 183 within 20 days after the date of the order.

(c) The provider may apply to the Division for an extension of time for the escrow account to remain open. The request for an extension must be made in writing to the Division before the 35th month after the date the escrow account was opened.

(A) The provider's request for an extension must contain documentation that demonstrates the requirements of subsection (4)(a) of this section may be met within 60 additional days and that a majority of the individuals, who have paid entrance fees that were deposited in the escrow account, have consented in writing to a 60-day extension. The provider’s request for an extension must meet the requirements of this section or the request may not be considered to be timely.

(B) The Division shall review all timely requests for extension within 14 days of the receipt of the request. If the Division grants an extension, the Division shall send a notice of extension to the escrow agent.

(d) If the funds in the escrow account have not been released by 35 months after the date the escrow account was opened, the provider must deliver a copy of the list required by section (1)(b) of this rule to the escrow agent.

(e) In the event a prospective resident withdraws from the residency agreement prior to occupancy, the entrance fee may not be refunded to the prospective resident until the prospective resident’s unit has been resold by the provider.

(f) If the entrance fees in an escrow account are not released within 48 months after the escrow account is opened, the entrance fees paid, less the escrow fee, must be returned to the resident unless an extension is granted by the Division.

(g) The escrow agent may return the entrance fee held in escrow to the individual who paid the entrance fee, upon receipt of notice from the provider that the individual is entitled to a refund of the entrance fee.

History

Statutory/Other Authority: ORS 101.150 & 410.090
Statutes/Other Implemented: ORS 101.070
SPD 8-2011, f. 3-31-11, cert. ef. 4-1-11
SDSD 5-1999, f. 4-30-99, cert. ef. 5-1-99
SSD 9-1990, f. & cert. ef. 3-26-90

Or. Admin. R. 411-067-0080 Transfer of Ownership

(1) A certificate of registration is not transferable.

(2) A registered provider who wishes to sell, transfer ownership, or lease any CCRC or CCRC facility must obtain approval from the Division. The Division shall grant approval when the requirements of sections (3) and (4) of this rule have been met.

(3) Prior to taking over ownership or operation of the CCRC or CCRC facility, the purchasing provider must obtain a certificate of registration as described in OAR 411-067-0020.

(4) If the purchasing provider already has a certificate of registration, then the purchasing provider's certificate of registration must be amended to include the newly purchased CCRC or CCRC facility prior to taking over ownership or operation of the newly purchased CCRC or CCRC facility.

History

Statutory/Other Authority: ORS 101.150 & 410.090
Statutes/Other Implemented: ORS 101.100
SPD 8-2011, f. 3-31-11, cert. ef. 4-1-11
SSD 9-1990, f. & cert. ef. 3-26-90

Or. Admin. R. 411-067-0083 Resident Meetings and Notice of Changes

(1) The governing body or a designated representative of the provider must hold meetings with the residents’ council (Council) or all residents of the CCRC at least twice a year for the purpose of free discussion of subjects that may include but are not limited to facility income, expenditures, financial trends, resident concerns, and proposed changes in policy, programs, fees, and services.

(a) The meetings must be open to the designated personal representatives of the residents.

(b) The provider must present for discussion any issue the Council or any resident of the CCRC identifies orally or in writing 14 days or more prior to the meeting. Any issue presented for discussion must be of general concern to the CCRC and must be communicated to the individual as set forth by CCRC policy.

(2) The provider must give residents at least 45 days notice of proposed changes in fees, regular periodic charges, or services. The provider must allow residents a reasonable opportunity to comment on the proposed changes before the changes become effective.

(3) At least 30 days before an increase in regular periodic charges takes effect, the provider must hold a meeting with the Council or a meeting that is open to all residents of the CCRC to present the reasons for the proposed increase and any data supporting the need for the increase. A meeting as described in section (1) of this rule may be used for this purpose.

(a) At least 14 days prior to the meeting, the provider must post in a conspicuous location and make available to each resident an agenda for the meeting.

(b) At the meeting, the provider must make available an accounting of:

(A) Actual and projected income and expenses for the CCRC’s current fiscal year;

(B) Projected income and expenses for the following fiscal year; and

(C) The current rates for each living unit in the CCRC and each proposed rate increase. For this rule, “each living unit” means each type of living unit in contrast to every individual unit within the CCRC.

(4) A provider must review the CCRC budget with the Council or a committee appointed by the Council during the budget planning process.

(5) At least twice a year, the provider must make available, to the Council or a committee appointed by the Council, a financial statement for the CCRC that compares actual costs to budgeted costs, broken down by expense category.

(6) The governing body of a provider must allow at least one resident, from each CCRC operated by the provider in Oregon, to participate as a nonvoting resident representative on the governing body or along with the owners or managers.

(a) The resident representative may be excluded from any executive session and from discussion of confidential matters or matters related to litigation, personnel, competitive advantage, or a resident’s personal affairs.

(b) The resident representative may not be excluded from discussion of matters relating to the annual budget, increases in regular periodic charges, provider indebtedness, or expansion in new or existing CCRC facilities.

(c) The resident representative and the resident representative’s alternate must be elected by a majority vote of the Council of each CCRC or by a majority vote of all residents of the CCRC. The provider may establish the term for the representatives and the procedures for election and replacement of a representative and an alternate. The resident representative is responsible for submitting their name, address, electronic mail address, and telephone number to the provider.

(d) A provider must send the notice of the meeting and any written materials relevant to the discussions in which the resident representative may participate under this section, to each resident representative and alternate, at the same time and in the same manner as the governing body, owners, or managers.

(e) A provider must pay all reasonable travel expenses for a resident representative or alternate to attend meetings of the governing body and meetings of the governing body’s committees.

(7) A provider must maintain and make available to any resident upon request, minutes of the meetings of the provider’s governing body. A provider must retain the minutes for no less than three years from the date the minutes were created.

(a) The provider may remove from the minutes, information regarding any matters discussed in executive session or that relate to litigation, personnel, competitive advantage, or a resident’s personal affairs.

(b) The provider may not remove from the minutes, information regarding the annual budget, increases in regular periodic charges, provider indebtedness, or expansion in new or existing CCRC facilities.

(8) Nothing in this rule prohibits a provider from allowing greater resident participation than the minimum requirements set forth in these rules.

History

Statutory/Other Authority: ORS 101.150 & 410.090
Statutes/Other Implemented: ORS 101.112
SPD 8-2011, f. 3-31-11, cert. ef. 4-1-11
SDSD 5-1999, f. 4-30-99, cert. ef. 5-1-99

Or. Admin. R. 411-067-0086 Resident Rights

(1) A provider must assist a resident, upon request, in the exercise of the resident’s rights as a citizen of the United States and as a resident of Oregon. A resident has the right to exercise all rights that do not infringe upon the rights or safety of other residents.

(2) A resident has the right to review a provider’s disclosure statements.

(3) A provider may not discriminate or impose any requirement or restriction based on sex, marital status, race, color, sexual orientation, or national origin of a resident, a prospective resident, or a resident’s visitor.

(4) A provider must make reasonable accommodations to ensure that services are accessible to residents who have disabilities.

(5) A provider must treat each resident with respect and dignity at all times and ensure privacy for each resident during rehabilitation or treatment and when receiving personal care services.

(6) A resident has the right to associate and communicate privately with persons of the resident’s choice and to send and receive mail that is not opened by the provider.

(7) A resident has the right to be free from abuse as defined in ORS 124.005 and OAR 411-020-0002.

(8) The Resident Council has the right to meet with the provider as described in OAR 411-067-0083.

(9) A resident has the right to participate in social, religious, and community activities at the discretion of the resident.

(10) A resident has the right to be fully informed, prior to or at the time of admission and during the resident’s period of residency, of services available in the CCRC, whether the provider participates in the Medicare or Medicaid programs, and the consequences of the participation or lack of participation by the provider in the Medicare or Medicaid programs.

(11) A resident has the right to refuse medication, treatment, care, or participation in clinical trials or other research.

(12) A resident has the right to obtain treatment, care, and services including but not limited to home health and hospice care, from persons providing health care who have not entered into a contract with or are not affiliated with the provider, subject to policies of the CCRC regarding the provision of services by persons that are not under contract.

(13) A resident has the right to submit grievances and to suggest changes in policies and services either orally or in writing to staff or other individuals without fear of restraint, interference, coercion, discrimination, or reprisal by the provider. A provider must listen to and respond promptly to a grievance or suggestion from a resident.

(14) A resident has the right to be free from harassment by other residents and to peaceful enjoyment of the CCRC without interference from other residents.

(15) A provider must keep clinical and personal records of residents confidential. A resident or the resident’s representative has the right to a prompt inspection of the records pertaining to the resident’s care. The provider must provide photocopies or electronic copies of a resident’s records to the resident or the resident’s representative at a reasonable charge.

(16) A resident has the right to receive at least 45 days prior notice of proposed changes in fees or services. The provider must allow residents a reasonable opportunity to comment on the proposed changes before the changes become effective.

History

Statutory/Other Authority: ORS 101.150 & 410.090
Statutes/Other Implemented: ORS 101.115
SPD 8-2011, f. 3-31-11, cert. ef. 4-1-11

Or. Admin. R. 411-067-0090 Complaints, Investigations and Remedies

(1) INVESTIGATIONS REQUIRED. The Division shall investigate all complaints made regarding violations of the CCRC Act, these rules, or orders adopted under the Act.

(a) Division staff or representatives of the Division shall carry out investigations as soon as practicable.

(b) The Division may interview pertinent witnesses including employees of the provider and review the provider's documents and records.

(c) Except as prohibited by the Elderly Persons and Persons with Disabilities Abuse Prevention Act, ORS chapter 124, the Division shall notify the provider within seven working days of any complaint and the provider shall be given an opportunity to respond.

(d) The provider must make the documents and records requested under subsection (b) of this section available to the Division for review and copying.

(e) The provider is responsible for violations of the Act, these rules, or orders adopted under the Act committed by the provider’s employees, subcontractors, or agents.

(2) INTERVENTION BYTHE DIVISION:

(a) The Division may issue a cease and desist order or revoke a provider's certificate of registration if, after notice and an opportunity for a contested case hearing pursuant to ORS chapter 183, the Division finds the provider guilty of violating any provision of the Act, these rules, or orders adopted under the Act.

(b) The Division may issue a cease and desist order or apply for injunctive relief or a temporary restraining order if it appears a person has engaged, or is about to engage, in an act or practice that constitutes a violation of any provision of the Act, these rules, or orders adopted under the Act.

(c) The Division may issue a cease and desist order for a violation of the Act, these rules, or orders adopted under the Act committed by the provider’s employees, subcontractors, or agents. The order shall be issued to the provider and, when deemed appropriate by the Division, to the persons who violated the Act, these rules, or orders adopted under the Act.

(3) RETALIATION PROHIBITED. The provider may not take any retaliatory action against any complainant, including but not limited to the management, staff, and residents of the provider's CCRC facilities.

History

Statutory/Other Authority: ORS 101.150 & 410.090
Statutes/Other Implemented: ORS 101.110 & 101.120
SPD 8-2011, f. 3-31-11, cert. ef. 4-1-11
SDSD 5-1999, f. 4-30-99, cert. ef. 5-1-99
SSD 9-1990, f. & cert. ef. 3-26-90

Or. Admin. R. 411-067-0100 Promotional Material

(1) PROHIBITION REGARDING ENDORSEMENT CLAIM. A provider may not advertise, represent, or imply that a CCRC has been inspected or approved by the State of Oregon or the Division.

(2) FEE SCHEDULE. All copies of the provider's fee schedule must state that a copy of the annual disclosure statement is available upon request.

(3) OUT-OF-STATE PROVIDER. An organization advertising CCRC services provided in another state may advertise in Oregon without being registered in Oregon only if the advertisement clarifies the state or other government entity through which the organization is licensed or registered.

History

Statutory/Other Authority: ORS 101.150 & 410.090
Statutes/Other Implemented: ORS 101.150
SPD 8-2011, f. 3-31-11, cert. ef. 4-1-11
SDSD 5-1999, f. 4-30-99, cert. ef. 5-1-99

Division 68 REGISTRATION OF ROOM AND BOARD FACILITIES

Or. Admin. R. 411-068-0000 Definitions Relating to Room and Board Facilities

(1) "Abuse" means "abuse" as defined in OAR 411-020-0002 (Adult Protective Services).

(a) PHYSICAL ABUSE.

(A) Physical abuse includes:

(i) The use of physical force that may result in bodily injury, physical pain, or impairment; or

(ii) Any physical injury to an adult caused by other than accidental means.

(B) For purposes of these rules, conduct that may be considered physical abuse includes, but is not limited to:

(i) Acts of violence, such as, striking (with or without an object), hitting, beating, punching, shoving, shaking, kicking, pinching, choking, or burning; or

(ii) The use of force-feeding or physical punishment.

(C) Physical abuse is presumed to cause physical injury, including pain, to adults in a coma or adults otherwise incapable of expressing injury or pain.

(b) NEGLECT.

(A) For the purposes of these rules, neglect means the active or passive failure to provide the basic care or services necessary to maintain the health and safety of an adult, when that failure:

(i) Results in physical harm, significant emotional harm, unreasonable discomfort, or serious loss of personal dignity to the adult; or

(ii) Creates the risk of serious harm to the adult.

(d) VERBAL OR EMOTIONAL ABUSE.

(A) Verbal or emotional abuse includes threatening significant physical harm, or threatening or causing significant emotional harm to an adult using:

(i) Derogatory or inappropriate names, insults, verbal assaults, profanity, or ridicule; or

(ii) Harassment, coercion, threats, intimidation, humiliation, mental cruelty, or inappropriate sexual comments.

(B) For the purposes of these rules:

(e) FINANCIAL EXPLOITATION. Financial exploitation including:

(B) Alarming an adult by conveying a threat to wrongfully take or appropriate money or property of the adult if the adult reasonably believes the threat conveyed maybe carried out;

(D) Failing to use income or assets of an adult for the benefit, support, and maintenance of the adult; or

(E) The taking, borrowing, or accepting of assets, funds, property, or medications from an adult residing in a facility by an employee of the facility, unless the adult and employee are related, and the action described in this paragraph does not constitute a wrongful taking as described in paragraph (A).