OAR Chapter 407 — Department of Human Services

Division 1 PROCEDURAL RULES

Or. Admin. R. 407-001-0000 Model Rules of Procedure

The Department of Human Services (Department) adopts the Attorney General Model Rules applicable to rulemaking, effective on January 1, 2012, with the exception of 137-001-0080.

NOTE: The Department of Human Services will adhere to the  Procedural Rules in this chapter unless otherwise specifically stated.

[ED. NOTE: The full text of the Attorney General's Model Rules of Procedure is available from the office of the Attorney General or the Department of Human Services.]

History

Statutory/Other Authority: ORS 183.341 & 409.050
Statutes/Other Implemented: ORS 183.341 & 409.050
DHSD 5-2012, f. 10-31-12, cert ef. 11-1-12
DHSD 9-2008, f. & cert. ef. 12-5-08
DHSD 3-2006, f. 5-11-06, cert. ef. 6-1-06

Or. Admin. R. 407-001-0005 Notice of Proposed Rulemaking and Adoption of Temporary Rules

(1) Except as provided in ORS 183.335(7) or (12) or 183.341, before permanently adopting, amending, or repealing an administrative rule, the Department shall give notice of the intended action:

(a) To legislators specified in ORS 183.335(15) at least 49 days before the effective date of the rule;

(b) To persons on the interested parties lists described in section (2) of this rule for the pertinent OAR chapter or pertinent subtopics or programs within an OAR chapter at least 28 days before the effective date of the rule;

(c) In the Secretary of State's Bulletin referred to in ORS 183.360 at least 21 days before the effective date of the rule;

(d) To other persons, agencies, or organizations that the Department is required to provide an opportunity to comment pursuant to state statute or federal law or as a requirement of receiving federal funding, at least 28 days before the effective date of the rule;

(e) To the Associated Press and the Capitol Press Room at least 28 days before the effective date of the rule; and

(f) In addition to the above, the Department may send notice of intended action to other persons, agencies, or organizations that the Department, in its discretion, believes to have an interest in the subject matter of the proposed rule at least 28 days before the effective date of the rule.

(2) Pursuant to ORS 183.335(8), the Department shall maintain an interested parties list for each OAR chapter of rules for which the Department has administrative responsibility, and an interested parties list for subtopics or programs within those chapters. A person, group, or entity that desires to be placed on such a list to receive notices regarding proposed permanent adoption, amendment, or repeal of a rule must make such a request in writing or by electronic mail to the rules coordinator for the chapter. The request must include either a mailing address or an electronic mail address to which notices may be sent.

(3) Notices under this rule may be sent by use of hand delivery, state shuttle, postal mail, electronic mail, or facsimile. The Department recognizes state shuttle as "mail" and may use this means to notify other state agencies.

(a) An email notification under section (1) of this rule may consist of any of the following:

(A) An email that attaches the Notice of Proposed Rulemaking or Notice of Proposed Rulemaking Hearing and Statement of Need and Fiscal Impact.

(B) An email that includes a link within the body of the email, allowing direct access online to the Notice of Proposed Rulemaking or Notice of Proposed Rulemaking Hearing and Statement of Need and Fiscal Impact.

(C) An email with specific instructions within the body of the email, usually including an electronic Universal Resource Locator (URL) address, to find the Notice of Proposed Rulemaking or Notice of Proposed Rulemaking Hearing and Statement of Need and Fiscal Impact.

(b) The Department may use facsimile as an added means of notification, if necessary. Notification by facsimile under section (1) of this rule shall include the Notice of Proposed Rulemaking or Notice of Proposed Rulemaking Hearing and Statement of Need and Fiscal Impact, or specific instructions to locate these documents online.

(c) The Department shall honor all written requests that notification be sent by postal mail instead of electronically if a mailing address is provided.

(4) If the Department adopts or suspends a temporary rule, the Department shall notify:

(a) Legislators specified in ORS 183.335(15);

(b) Persons on the interested parties list described in section (2) of this rule for the pertinent OAR chapter or pertinent subtopics or programs within an OAR chapter;

(c) Other persons, agencies, or organizations that the Department is required to notify pursuant to state statute or federal law or as a requirement of receiving federal funding; and

(d) The Associated Press and the Capitol Press Room; and

(e) In addition to the above, the Department may send notice to other persons, agencies, or organizations that the Department, in its discretion, believes to have an interest in the subject matter of the temporary rulemaking.

(5) In lieu of providing a copy of the rule or rules as proposed with the notice of intended action or notice concerning the adoption of a temporary rule, the Department may state how and where a copy may be obtained on paper, by electronic mail, or from a specified web site.

History

Statutory/Other Authority: ORS 183.341 & 409.050
Statutes/Other Implemented: ORS 183.330, 183.335, 183.341 & 409.050
DHSD 9-2008, f. & cert. ef. 12-5-08
DHSD 3-2006, f. 5-11-06, cert. ef. 6-1-06

Or. Admin. R. 407-001-0010 Delegation of Rulemaking Authority

Any officer or employee of the Department of Human Services who is identified on a completed Delegation of Authority form signed by the Director or Deputy Director of the Department and filed with the Secretary of State, Administrative Rules Unit, is vested with the authority to adopt, amend, repeal, or suspend administrative rules as provided on that form until such delegation is revoked by the Director or Deputy Director of the Department, or the person leaves employment with the Department.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 183.325, 409.050, 409.120 & 409.130
DHSD 9-2008, f. & cert. ef. 12-5-08
DHSD 3-2006, f. 5-11-06, cert. ef. 6-1-06

Division 3 PUBLIC RECORD FEES

Or. Admin. R. 407-003-0000 Definitions

The following definitions apply to Oregon Administrative Rule 407-003-0010 unless otherwise indicated:

(1) “Department” refers to the Oregon Department of Human Services.

(2) “Designee” refers to any officer or employee of the Department, appointed by the Director to respond to requests for reduction or waiver of fees for public records of the Department.

(3) “Director” refers to the Director of the Department.

(4) “Person” includes any natural person, corporation, partnership, firm, or association.

(5) “Photocopy(ing)” includes a photograph, microphotograph and any other reproduction on paper or film in any scale, or the process of reproducing, in the form of a photocopy, a public record.

(6) “Public record” includes any writing that contains information relating to the conduct of the public’s business that is prepared, owned, used or retained by the Department regardless of physical form or characteristics.

(7) “Requestor” refers to a person requesting inspection, copies, or other reproduction of a public record of the Department.

(8) “Writing” means handwriting, typewriting, printing, photographing and every means of recording, including letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, files, facsimiles or electronic recordings. It includes information stored on computer tape, microfiche, photographs, films, tape or videotape or that is maintained in a machine readable or electronic form.

History

Statutory/Other Authority: ORS 192.430 & 409.050
Statutes/Other Implemented: ORS192.430, 192.440 & 409.010
DHSD 2-2007, f. & cert. ef. 2-15-07

Or. Admin. R. 407-003-0010 Fees for Inspection or Copies of Public Records and Department of Human Services Publications; Other Services

(1) The Department may charge a fee reasonably calculated to reimburse the Department for the cost of making public records available:

(a) Costs include but are not limited to:

(A) The services and supplies used in making the records available;

(B) The time spent locating the requested records, reviewing the records, and redacting, or separating material exempt from disclosure;

(D) Copying records;

(E) Certifying copies of records;

(F) Summarizing, compiling, or organizing the public records to meet the person’s request;

(G) Searching for and reviewing records even if the records subsequently are determined to be exempt from disclosure;

(H) Postal and freight charges for shipping the copies of the public records, sent first class or bulk rate based on weight;

(I) Indirect costs or third party charges associated with copying and preparing the public records; and

(J) Costs associated with electronic retrieval of records.

(b) When a Department of Justice review of the records is requested by the Department of Human Services, the Department may charge a fee equal to the Attorney General’s charge for the time spent by the attorney reviewing the public records, redacting material from the records, and segregating the public records into exempt and nonexempt records. A fee will not be charged for the cost of time spent by an attorney in determining the application of the provisions of ORS 192.410 to 192.505;

(c) Staff time will be calculated based on the hourly rate of pay and fringe benefits for the position of the person performing the work;

(d) The cost for publications will be based on the actual costs of development, printing and distribution, as determined by the Department;

(e) The cost for a public records request requiring the Department to access the State's mainframe computer system, may include but not be limited to costs for computer usage time, data transfer costs, disk work space costs, programming, and fixed portion costs for printing and/or tape drive usage.

(2) The Department will establish a list of fees used to charge requestors for the costs of preparing and making available public records for the following:

(a) Photocopies;

(b) Facsimile copies. The Department may limit the transmission to thirty pages;

(c) Electronic copies, diskettes, DVDs, and other electronically generated materials. The Department will determine what electronic media for reproduction of computer records will be used and whether the electronic media is to be provided by the Department or the requestor;

(d) Audio or video cassettes;

(e) Publications.

(3) The Department will review the list of fees established in policy from time to time in order to assure that the fees reflect current Department costs.

(4) No additional fee will be charged for providing records or documents in an alternative format when required by the Americans with Disabilities Act.

(5) The Department will notify requestors of the estimated fees for making the public records available for inspection or for providing copies to the requestor. If the estimated fees exceed $25, the Department will provide written notice and will not act further to respond to the request until the requestor notifies the Department, in writing, to proceed with making the records available:

(a) The Department may require that all or a portion of the estimated fees be paid before the Department will proceed with making the record available;

(b) The Department may require that actual costs of making the record available be paid before the record is made available for inspection or copies provided.

(6) The Director or designee may reduce or waive fees when a determination is made that the waiver or reduction of fees is in the public interest because making the records available primarily benefits the general public. Factors that may be taken into account in making such a determination include, but are not limited to:

(a) The overall costs to be incurred by the Department is negligible; or

(b) Supplying the requested records or documents is within the normal scope of Department activity; or

(d) Discovery requests made as part of pending administrative, judicial, or arbitration proceedings.

(7) If the Department denies an initial verbal request for waiver or reduction of fees, the requestor will submit a written request. If the Department subsequently denies the written request for a waiver or reduction of fees, the requestor may petition the Attorney General for a review of the denial pursuant to the provisions of ORS 192.440(6) and 192.450.

History

Statutory/Other Authority: ORS 192.430 & 409.050
Statutes/Other Implemented: ORS 192.430, 192.440 & 409.010
DHSD 2-2007, f. & cert. ef. 2-15-07

Division 5 CLIENT RIGHTS

Or. Admin. R. 407-005-0000 Purpose

These rules (407-005-0000 through 407-005-0030) establish a Department policy of non-discrimination on the basis of disability in accordance with the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.050
DHSD 1-2006, f. & cert. ef. 3-1-06

Or. Admin. R. 407-005-0005 Definitions

The following definitions apply to rules 407-005-0000 through 407-005-0030:

(1) "Alternate Format Communication" means printed material converted to a communication style that meets the accessibility needs of individuals with disabilities to achieve "effective communication." The types of alternate format that the Department offers include but are not limited to: large print, Braille, audiotape, electronic format (E-mail attachment, diskette, or CD-ROM) and oral presentation.

(2) "Americans with Disabilities Act" is a comprehensive federal law passed in 1990, which prohibits discrimination on the basis of disability in employment, programs and services provided by state and local governments; goods and services provided by private companies; commercial facilities; telecommunications and transportation. The ADA was crafted upon a body of existing legislation, particularly the Rehabilitation Act of 1973 (Section 504), which states that no recipient of federal financial assistance may discriminate against qualified individuals with disabilities solely because of a disability. (Public Law 101-336)

(3) "Auxiliary Aids or Services" mean:

(a) Qualified interpreters on-site or through video remote interpreting (VRI) services; note takers; real-time computer-aided transcription services, written materials, exchange of written notes, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearingaids, closed caption decoders, open and closed captioning, including realtime captioning, voice, text, and video-based tekecommuniciations products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices, videotext displays; accessible electronic and information technology, or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing,

(b) Qualified readers, taped texts, audio recordings, Brailled materials and displays, screen reader software, magnification software, optical readers, secondary auditory programs (SAP), large print materials, accessible electronic and information technology, or other effective methods of making visually delivered materials available to individuals who are blind or have low vision,

(d) Other similar services and actions.

(4) "Companion" means a family member, friend, or associate of an individual seeking access to any Department program or service for whom the individual with a disability has provided authorization for the Department to disclose information, consistent with OAR chapter 407, division 14.

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

(6) "Direct threat" means a significant risk to the health or safety of others that cannot be eliminated or reduced to an accepted level through the provision of auxiliary aids and services or through reasonably modifying policies, practices or procedures, that person is not considered a qualified individual with a disability and may be excluded from ODHS programs services or activities. The determination of direct threat to the health and safety of others must be based on an individualized assessment relying on current medical evidence, or the best available objective evidence that shows:

(a) The nature, duration and severity of the risk;

(b) The probability that a potential injury will actually occur; and

(7) "Federal Discrimination Complaint" means a complaint by a client, client applicant or specific class of individuals or their representative(s) filed with a federal agency alleging an act of discrimination by a public entity.

(8) "Individual with a Disability" means an individual who:

(a) Has a physical or mental impairment that substantially limits one or more major life activities; or

(b) Has a record or history of such an impairment; or

(9) "Qualified Individual with a Disability" means an individual who can meet the essential eligibility requirements for the program, service or activity with or without Reasonable Modification of rules, policies or procedures, or the provision of auxiliary aids and services.

(10) "Reasonable Modifications" means a modification of policies, practices or procedures made to a program or service that allows an individual with a disability to participate equally in the program or benefit from the service.

(11) "Report of Discrimination" means a report filed with the Department by a client, client applicant or specific class of individuals or their representative(s) alleging an act of discrimination by the Department or a Department contractor, their agents or subcontractors, or a governmental entity under intergovernmental agreement with the Department, regarding delivery of Department services, programs or activities that are subject to Title II of the ADA or Section 504 of the Rehabilitation Act.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.050
DHS 1-2025, amend filed 03/31/2025, effective 04/01/2025
DHSD 1-2006, f. & cert. ef. 3-1-06

Or. Admin. R. 407-005-0010 Prohibitions Against Discrimination

In accordance with Title 28, CFR 35.130 and Title 45 CFR 84.68:

(1) No individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of the Oregon Department of Human Services (ODHS), or be subjected to discrimination by ODHS.

(2) ODHS, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability:

(a) Deny an individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;

(b) Afford an individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

(c) Provide an individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;

(d) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide individuals with disabilities with aids, benefits, or services that are as effective as those provided to others;

(e) Aid or perpetuate discrimination against an individual with a disability by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of an ODHS program;

(f) Deny an individual with a disability the opportunity to participate as a member of planning or advisory boards;

(g) Otherwise limit an individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.

(3) ODHS may not deny an individual with a disability the opportunity to participate in services, programs, or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.

(4) ODHS may not, directly or through contractual or other arrangements, utilize criteria or methods of administration:

(a) That have the effect of subjecting an individual with a disability to discrimination on the basis of disability;

(b) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of an ODHS program with respect to an individual with a disability; or

(c) That perpetuate the discrimination of another public entity if both ODHS and other public are subject to common administrative control or are public entities of Oregon.

(5) ODHS may not, in determining the site or location of a facility, make selections:

(a) That have the effect of excluding an individual with a disability from, denying them the benefits of, or otherwise subjecting them to discrimination; or

(b) That have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the service, program, or activity with respect to an individual with a disability.

(6) ODHS, in the selection of procurement contractors, may not use criteria that subject an individual with a disability to discrimination on the basis of disability.

(7) ODHS may not administer a licensing or certification program in a manner that subjects an individual with a disability to discrimination on the basis of disability, nor may ODHS establish requirements for the programs or activities of licensees or certified entities that subject an individual with a disability to discrimination on the basis of disability.

(8) ODHS shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless ODHS may demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

(9) ODHS is not required to provide a reasonable modification to an individual who meets the definition of “disability” solely under the “regarded as” section of the definition of “disability” at § 35.108(f).

(10) ODHS shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.

(11) Nothing in this rule prohibits ODHS from providing benefits, services, or advantages to an individual with a disability, or to a particular class of individuals with disabilities beyond those required by this rule.

(12) ODHS shall administer services, programs, and activities in the most integrated setting appropriate to the needs of an individual with a disability.

(13) Nothing in this rule shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit provided under the ADA or this rule which such individual chooses not to accept. Nothing in the ADA or this rule authorizes the representative or guardian of an individual with a disability to decline food, water, medical treatment, or medical services for that individual.

(14) ODHS may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or services or program accessibility, that are required to provide that individual or group with the nondiscriminatory treatment required by the ADA or this rule.

(15) ODHS shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.

(16) ODHS may impose legitimate safety requirements necessary for the safe operation of ODHS services, programs, or activities. However, ODHS must ensure that ODHS safety requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.

(17) Nothing in this rule shall provide the basis for a claim that an individual without a disability was subject to discrimination because of a lack of disability, including a claim that an individual with a disability was granted a reasonable modification that was denied to an individual without a disability.

History

Statutory/Other Authority: ORS 409.050, 25 CFR § 35, 45 CFR § 84.68 & 28 CFR § 35.130
Statutes/Other Implemented: ORS 409.050 & ADA Subchapter II, 42 USC §§ 12131 - 12134, Section 504 of the Rehabilitation Act, 29 USC § 794
DHS 1-2025, amend filed 03/31/2025, effective 04/01/2025
DHS 7-2022, amend filed 04/04/2022, effective 04/04/2022
DHS 21-2021, temporary amend filed 10/07/2021, effective 10/07/2021 through 04/04/2022
DHSD 1-2006, f. & cert. ef. 3-1-06

Or. Admin. R. 407-005-0015 Illegal Drug Use

(1) The ADA and section 504 protects qualified individuals with a disability, including certain individuals with substance use disorder, but does not provide protections against discrimination for individuals currently engaged in the illegal use of drugs.

(a) Illegal use of drugs means the use of one or more drugs, the possession or distribution of which is unlawful under the Controlled Substances Act (21 U.S.C. 812). The term illegal use of drugs does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law.

(b) Current illegal use of drugs means illegal use of drugs that occurred recently enough to justify a reasonable belief that a person's drug use is current or that continuing use is a real and ongoing problem.

(2) The Department shall not discriminate on the basis of illegal use of drugs against an individual who is not engaging in current illegal use of drugs and who:

(a) Has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully;

(b) Is participating in a supervised rehabilitation program; or

(3) The Department shall not deny health services, vocational rehabilitation services, or services provided in connection with drug rehabilitation, to an individual on the basis of that individual's current illegal use of drugs, if the individual is otherwise entitled to such services.

(4) A drug rehabilitation or treatment program may deny participation to individuals who engage in illegal use of drugs while they are in the program.

(5) The Department may adopt reasonable rules or policies related to drug testing that are designed to ensure that an individual who formerly engaged in the illegal use of drugs is not now engaging in the current illegal use of drugs.

History

Statutory/Other Authority: ORS 409.050, 28 C.F.R. § 35.131, 42 U.SC § 12210(b) and (d), 45 CFR§ 84.69 & 28 CFR 􀀀 35.131
Statutes/Other Implemented: ORS 409.050, ADA Subchapter II, 42 USC §§ 12131 - 12134 & Section 504 of the Rehabilitation Act, 29 USC § 794
DHS 1-2025, amend filed 03/31/2025, effective 04/01/2025
DHS 7-2022, amend filed 04/04/2022, effective 04/04/2022
DHS 21-2021, temporary amend filed 10/07/2021, effective 10/07/2021 through 04/04/2022
DHSD 1-2006, f. & cert. ef. 3-1-06

Or. Admin. R. 407-005-0017 Service Animals in Oregon Department of Human Services Buildings

(1) The Oregon Department of Human Services (ODHS) shall make reasonable modifications to its policies, practices, and procedures to permit the use of service animals by individuals with a disability.

(2) Under the ADA, service animals are defined as dogs. In limited circumstances, miniature horses may serve as service animals. (See 28 CFR 35.136i for information on these circumstances.) Emotional support animals and companion animals do not qualify as service animals under Titles II or III of the ADA.

(3) Service animals must be individually trained, or be in training, to do work or perform tasks for an individual with a disability. The work or task a service animal has been trained to provide must be directly related to a disability, including a physical, sensory, psychiatric, intellectual/developmental, or other mental disability.

(4) ODHS must allow a service animal to accompany an individual with a disability in all areas of the facility where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go.

(5) Under the ADA, a service animal must be under the control of the service animal's handler. A service animal must be harnessed, leashed, or tethered, unless the individual’s disability prevents using these devices or these devices interfere with the service animal's safe, effective performance of tasks.

(6) ODHS may ask an individual with a disability to remove a service animal from the premises if:

(a) The animal is out of control and the animal's handler does not take effective action to control it; or

(b) The animal is not housebroken.

(c) If one or both of these situations occur, the handler may be asked to remove the service animal, but the individual with a disability must still be welcome to participate in the service or accommodation without the service animal.

(7) When it is not obvious what service a service animal provides, staff may ask only two questions to determine whether an animal qualifies as a service animal. Staff may not require the individual with a disability to produce documentation such as proof that the animal has been certified, trained, or licensed as a service animal.

(a) “Is the service animal required because of a disability?”; and

(b) “What work or task has the service animal been trained to perform?”

(8) Allergies and fear of dogs are not valid reasons for denying access or refusing service to individuals using service animals.

(9) An individual with a disability who uses a service animal may not be isolated from or treated less favorably than other individuals, unless isolation is necessary to avoid significant risk to other individuals.

(10) Staff are not required to provide care for or supervision of a service animal.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.050 & 28 C.F.R. § 35.136
DHS 7-2022, adopt filed 04/04/2022, effective 04/04/2022
DHS 21-2021, temporary adopt filed 10/07/2021, effective 10/07/2021 through 04/04/2022

Or. Admin. R. 407-005-0020 Reasonable Modifications

(1) The Department will make Reasonable Modifications to policies, practices or procedures of a program, services or activity when the modifications are necessary to avoid discrimination based on disability unless the modification would fundamentally alter the nature of the program, service or activity or create an undue administrative or financial burden.

(2) When providing program access to a qualified individual with a disability would cause a fundamental alteration of the program, service or activity or undue financial or administrative burden, the Department will, to the extent the benefit of the program, service or activity can be achieved, provide program access to the point at which the program becomes fundamentally altered or experiences an undue burden.

(3) Alternate Format communication is considered to be within the scope of reasonable modifications.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.050
DHSD 1-2006, f. & cert. ef. 3-1-06

Or. Admin. R. 407-005-0025 Requesting a Reasonable Modification

(1) To request a reasonable modification to a Department program, service or activity a client applicant, client or public member must submit to program staff a request for a reasonable modification to the applicable program. Requests may be made verbally or by completing the Request for Reasonable Modification form.

(2) Upon receipt of a request for modification the Department will:

(a) Determine whether additional documentation regarding the claimed disability is needed and request such documentation;

(b) Within fifteen (15) working days of the request or the receipt of additional medical documentation, whichever is later, provide to the requestor notification of approval, approval with alternative modifications or denial of the request for reasonable modification. All denials and approvals with alternative modifications that were not requested will be clearly labeled a "Preliminary Notification Subject to Review."

(3) A "Reasonable Modification Team" means a two person team appointed by program managers that meet to evaluate a Request for Reasonable Modification decision that either denied the request or approved the request but with modifications other than those requested.

(4) This process may include additional communication with the individual requesting the Reasonable Modifications.

(5) Preliminary Notifications will automatically be reviewed by a Reasonable Modification Team that will notify the requestor of the final result of the review within fifteen (15) working days of the preliminary notification or within fifteen working days following receipt of medical or other supporting documentation requested by the Team, whichever is later.

(6) An individual whose request for reasonable modification has been denied or approved with alternative modifications which the individual believes to be inadequate may file a Report of Discrimination with the Department within 60 days of the final result or file a complaint with the appropriate federal regulatory agency within 180 days of the final result.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.050
DHSD 1-2006, f. & cert. ef. 3-1-06

Or. Admin. R. 407-005-0030 Report of Discrimination and Other Remedies Available for Alleged Discrimination

(1) A client or client applicant or specific class of individuals or their representative(s) may file with the Department a Report of Discrimination based on disability in the following circumstances:

(a) The final result under OAR 407-005-0025 for a Reasonable Modification Request was denied or was approved with an alternative to the requested modification which is believed to be inadequate;

(b) A request for auxiliary aids and services was denied or was approved with an alternative to the request which is believed to be inadequate;

(c) A request for an alternate format communication was denied or was approved with an alternative to the request which is believed to be inadequate;

(d) Inability to access facilities used for Department programs;

(e) Denial of participation in Department programs and services.

(2) A Report of Discrimination must be filed within 180 calendar days of the date of the alleged discrimination unless otherwise set forth in these rules. For the Supplemental Nutrition Assistance Program (SNAP) program, the Department shall refer all reports of civils rights discriminiation as defined by federal law are to the United State Department of Agriculture for investigation. The Department's Governor's Advocacy Office will track SNAP civil rights complaints received and forwarded.

(3) A Report of Discrimination may be submitted verbally or on a Report of Discrimination Form available at any Department office or by calling any Department office.

(4) The claim of discrimination will be investigated and will include an interview with the complainant and upon conclusion of the investigation, a Letter of Determination shall be issued within 60 calendar days from the receipt of the Discrimination Report.

(5) An individual may appeal the Letter of Determination to the Civil Rights Review Board (CRRB) within thirty (30) calendar days of receiving the Letter of Determination. CRRB means a panel of Department employees appointed by the Director that reviews the decisions made by the Department ADA Coordinator or the Civil Rights Investigator on discrimination complaints filed with the Department.

(6) At the discretion of CRRB, this may include additional communication with the client.

(7) The remedies available under OAR 407-005-0000 through 407-005-0030 are available in addition to other remedies available under state or federal law or Oregon Administrative Rules, except that these remedies must be exhausted where exhaustion is a requirement of seeking remedies in another forum.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.050
DHS 2-2025, amend filed 06/17/2025, effective 07/01/2025
DHSD 1-2006, f. & cert. ef. 3-1-06

Or. Admin. R. 407-005-0100 Purpose and Scope

(1) These rules (OAR 407-005-0100 through 407-005-0120) describe the process for reporting, investigating, and resolving Department of Human Services' customer or client complaints about staff conduct, or customer service or lack of customer service received from Department personnel or Department contractors.

(2) OAR 407-005-0100 through 407-005-0120 applies to Department personnel and Department contractors:

(a) Department contractors shall have established processes for addressing customer service complaints received from Department customers or clients served by Department contractors that meet or exceed the requirements set forth in these rules (OAR 407-005-0100 through 407-005-0120);

(b) Department contractors must cooperate with the Department’s customer service complaint process and investigation if complaints are filed against them with the Department;

(3) The customer service complaint process described in these rules does not apply to the following situations:

(a) The customer or client is entitled to, or is requesting an administrative or contested case hearing;

(b) The subject matter of the complaint should be or already has been decided by a judge;

(c) The subject matter of the complaint is dissatisfaction or disagreement with a decision subject to review under OAR 582-020-0005 through 582-020-0125 (Vocational Rehabilitation Service Program);

(d) The subject matter of the complaint is subject to review under OAR 413-010-0420 (Review of DHS Child Welfare Decisions):

(A) Adoption committee decision;

(B) Child Protective Services disposition;

(e) The subject matter of the complaint is a report of discrimination subject to review under OAR 407-005-0025 through 407-005-0030;

(f) The subject matter of the complaint is subject to review under OAR 410-141-0260 through 410-141-0266 (Oregon Health Plan Prepaid health plan grievance system: PHP complaint and appeal procedures);

(g) The subject matter of the complaint is subject to review under OAR 309-118-0000 through 0050 (Oregon State Hospital patient grievance process); or

(h) Complaints filed anonymously. Anonymous complaints will be reviewed by the Governor’s Advocacy Office.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.010 and 411.977
DHSD 7-2007, f. 8-31-07, cert. ef. 9-1-07

Or. Admin. R. 407-005-0105 Definitions

The following definitions apply to OAR 407-005-0100 through 407-005-0120:

(1) “Customers or Clients” means any individual or entity having contact with the Department seeking information, services, or reimbursement. This includes, but is not limited to: clients and their family members, informal client supports, advocates, Department staff, taxpayers, public officials, service providers, community based organizations, media, and other interested parties;

(2) “Customer Service Complaint” means a written complaint filed by a customer or client that expresses dissatisfaction with staff conduct, customer service or lack of customer service received from Department personnel or Department contractors;

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

(4) “Department Contractors” means employees, volunteers, trainees, and other individuals or entities who contract with the Department to provide services.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.010 and 411.977
DHSD 7-2007, f. 8-31-07, cert. ef. 9-1-07

Or. Admin. R. 407-005-0110 Customer Service Complaint Procedure

(1) Customers or clients who are dissatisfied with staff conduct or some aspect of customer services received from Department personnel or Department contractors may file a customer service complaint with the Department. Customers or clients verbally expressing dissatisfaction with customer service will be informed by Department staff of the written customer service complaint process.

(2) A customer service complaint must be filed within 60 calendar days from the date of the event that caused the dissatisfaction. Untimely complaints will not be processed.

(3) Written customer service complaints may be filed by:

(a) Postal mail;

(b) email;

(d) By contacting the Governor's Advocacy Office for assistance in filing a written customer service complaint.

(4) The Department will assist customers or clients in completing a customer service complaint in writing at the request of a customer or client or when Department staff identifies a need for assistance.

(5) Customer service complaints will be considered filed on the day the written complaint is received and date stamped by the Department.

(6) Within five business days of receipt of a written customer service complaint, filed in a Department office, a copy will be sent to the Governor's Advocacy Office.

(7) Within five business days of receipt of a written customer service complaint filed with the Governor's Advocacy Office, the complaint will be reviewed and sent to the appropriate Department office.

(8) The Department will develop a process for tracking filed written customer service complaints. The tracking process will be utilized to assure compliance with these rules.

(9) The Department shall post the customer service complaint process in an easily identifiable format in each local office of the Department.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.010 & 411.977
DHS 2-2025, amend filed 06/17/2025, effective 07/01/2025
DHSD 10-2007, f. 11-30-07, cert. ef. 12-1-07
DHSD 7-2007, f. 8-31-07, cert. ef. 9-1-07

Or. Admin. R. 407-005-0115 Resolution of Customer Service Complaints

(1) Customers, clients, or their representatives may resolve customer service complaints verbally, by contacting the involved individual or a manager, or by filing a written customer service complaint.

(2) Within two business days of receipt of a written customer service complaint, the Department will screen the complaint to determine whether the subject matter of the complaint is subject to review under the customer service complaint process. If the subject matter of the complaint is not subject to review under the customer service complaint process, the Department will immediately notify and redirect the customer or client to the alternative process for addressing the customer’s or client’s issue.

(3) There are four possible levels of written customer service complaint review. At the first level, the customer service complaint will be reviewed by a first level manager. If the complaint is not resolved at the first level, further review will be conducted by a second or third level manager. The Governor’s Advocacy Office will facilitate the final level of review.

(4) For all levels of review and investigation the following processes and timelines apply:

(a) Within five business days of receipt of a written customer service complaint, the reviewing manager will review the customer service complaint. If the written customer service complaint generates no questions, the reviewing manager may begin investigating the matter before contacting the complainant. If there are questions regarding the customer service complaint, the reviewing manager will contact the complainant within five business days of receipt of the written complaint, to discuss the matter before taking any action. The reviewing manager must make the following efforts to contact the complainant:

(A) The reviewing manager must make at least two attempts to contact the complainant, using the complainant’s preferred method of communication as indicated in the written complaint. If the complainant does not respond within ten business days from the date of the last contact attempt, the manager may consider the complaint closed;

(B) If the complainant does not specify a preferred method of communication or the reviewing manager cannot reach the complainant by telephone, the reviewing manager will communicate to the complainant, in writing, requesting that the complainant contact the manager.

(b) If contacting the complainant to gather additional information is required, the reviewing manager will begin an investigation regarding the issues of the customer service complaint within five business days from the date of contact with the complainant. If the outcome cannot be determined within ten business days from the date of contact with the complainant, the manager will notify the complainant of the estimated extension of time needed:

(A) A reviewing manager will notify the complainant of the outcome of the investigation in a manner that complies with all Department confidentiality and privacy rules;

(B) If the complainant indicates that the outcome is satisfactory, the reviewing manager will close the complaint;

(C) At levels one through three, the reviewing manager will inform the complainant that if the complainant is dissatisfied with the outcome, the complainant may request the next level of review within five days of the date of notification of the outcome. If the complainant requests the next level of review, the reviewing manager will immediately forward the customer service complaint to the next reviewing level manager or the Governor’s Advocacy Office.

(c) At the fourth level, the Governor’s Advocacy Office will facilitate and issue a final determination and the complainant will have no further review rights under the Department’s customer service complaint process.

(5) All customer service complaints, both resolved and unresolved, will be sent to the Governor’s Advocacy Office for review and follow-up. Follow-up may include contacting the complainant by telephone or in writing.

(6) These customer service complaint procedures shall be administered in such a manner as to protect the confidentiality of client and personnel records.

(7) The Department will maintain records of all customer service complaints received, including responses and supporting documentation, for five years from the date the customer service complaint is closed.

(8) The Department shall compile a monthly report summarizing each customer service complaint filed. The report will be available to the public upon request. Customer service complaints related to Children, Adults and Families Division, Self-Sufficiency program issues will be provided monthly to the Family Services Review Commission.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 411.977
DHSD 7-2007, f. 8-31-07, cert. ef. 9-1-07

Or. Admin. R. 407-005-0120 Client Complaints - Retaliation Prohibited

(1) ODHS may not discriminate against any individual because the individual has opposed any act or practice made unlawful by these rules, or because the individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the ADA or these rules.

(2) ODHS may not coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by the ADA or these rules.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.050, ORS 409.010 & 411.977
DHS 7-2022, amend filed 04/04/2022, effective 04/04/2022
DHS 21-2021, temporary amend filed 10/07/2021, effective 10/07/2021 through 04/04/2022
DHSD 7-2007, f. 8-31-07, cert. ef. 9-1-07

Division 7 CRIMINAL HISTORY AND ABUSE CHECKS

Or. Admin. R. 407-007-0000 Purpose and Scope

(1) The purpose of these rules, OAR 407-007-0000 to 407-007-0100 is to supplement OAR 125-007-0200 to 125-007-0330 with guidelines and requirements specific to background checks for Oregon Department of Human Services (Department or ODHS) and Oregon Health Authority (Authority or OHA) subject individuals (SIs). These rules provide for the reasonable screening under ORS 181A.195, 181A.200, 409.027 AND 413.036 of the Department’s employees, volunteers, and contractors to determine if they have a history of specific criminal behavior identified in federal or state law or rules such that they should not be allowed to work, volunteer, be employed, or otherwise perform in positions covered by these rules.

(2) These rules apply to evaluating potentially disqualifying convictions and conditions of an SI when conducting fitness determinations based upon such information. The fact that an SI is approved does not guarantee employment or placement. Except for OAR 407-007-0010, these rules do not apply to SIs covered under OAR 407-007-0200 to 407-007-0370.

(3) The Authority authorizes the Background Check Unit (BCU), a shared service of the Department and the Authority, to act on its behalf in performing criminal records checks. References in these rules to the Department or Authority are references to either or both agencies.

(4) When the position the SI is having a criminal records check for also requires an abuse check under OAR 407-007-0400 to 407-007-0460, the result of the criminal records check and abuse check will be completed as one final fitness determination or outcome.

History

Statutory/Other Authority: ORS 181A.195, 181A.200 & 409.050
Statutes/Other Implemented: ORS 181A.195, 181A.200, 409.010 & 443.004
DHS 8-2024, amend filed 03/26/2024, effective 03/27/2024
DHS 5-2023, temporary amend filed 10/04/2023, effective 10/04/2023 through 03/30/2024
DHS 5-2022, minor correction filed 03/08/2022, effective 03/08/2022
DHS 23-2021, minor correction filed 12/13/2021, effective 12/13/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 4-2016, f. 6-9-16, cert. ef. 6-15-16
DHSD 2-2016(Temp), f. & cert. ef.1-14-16 thru 7-11-16
DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08
DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08

Or. Admin. R. 407-007-0010 Definitions

In addition to the definitions in OAR 125-007-0210, the following definitions apply to OAR 407-007-0000 to 407-007-0640 unless otherwise noted:

(1) “Abuse” has the meaning defined in the statutes ORS 124.005(1), 418.257(1), 419B.005(1), and 430.735(1), and in the rules promulgated to enact these statutes, corresponding to the setting in which the abuse was alleged or investigated and the vulnerable individuals associated with this abuse.

(2) “Abuse check” means obtaining and reviewing abuse allegations, abuse investigation reports, and associated exhibits and documents for the purpose of determining whether an SI has potentially disqualifying abuse.

(3) “Abuse investigation report” means a written report completed after an investigation into suspected abuse and retained by the Department or the Authority pursuant to ORS 124.085, 418.259, 419B.030, or 430.757, or a similar report filed in another state agency or by another state.

(4) “Appeal process” means the process of contesting a final fitness determination of denied or approved with restrictions.

(5) “Approved” means that a subject individual, following a final fitness determination, is fit to work, volunteer, be employed, or otherwise perform in the position listed in the criminal records check request.

(6) “Approved with restrictions” or restricted approval means an approval in which some restriction is made to the position listed in the criminal records check request including but not limited to the SI, the SI’s environment, the type or number of clients for whom the SI may provide care, or the information to which the SI has access.

(7) “Authority” means the Oregon Health Authority.

(8) “Authorized designee (AD)” means an individual whom the Department designates and authorizes to receive and process criminal records and abuse check requests from SIs; criminal records information, abuse investigation reports, and any other information gathered during the background check process; and to make fitness determinations.

(9) “Background check” means a criminal records check and an abuse check.

(10) “Background check submission date” means the date when the Background Check Unit receives a request for a criminal records check or abuse check as required by Oregon statute or administrative rule, including the subject individual’s authorization for the checks.

(11) “Background Check Unit” means the Background Check Unit (BCU), a Shared Services unit which conducts criminal records checks, abuse checks and fitness determinations for the Department and the Authority.

(12) “Care” means the provision of care, treatment, education, training, instruction, supervision, placement services, recreation, or support to children, the elderly, or individuals with disabilities (see ORS 181A.200).

(13) “Client” means any individual who receives services, care, or funding for care through the Department or the Authority.

(14) “Criminal Justice Information” (CJI) means all of the Federal Bureau of Investigation (FBI) Criminal Justice Information Systems (CJIS) provided data necessary for law enforcement and civil agencies to perform their missions including but not limited to biometric, identity history, biographic, property, and case/incident history data. CJI also includes data stored in the Oregon Law Enforcement Data System (LEDS), the National Criminal Information Center (NCIC), and other criminal justice information systems files. See FBI CJIS Security Policy, version 5.9.4 (12/20/2023) or current version.

(15) “Criminal records check” means obtaining and reviewing criminal records and includes either or both of the following:

(a) An Oregon criminal records check where criminal offender information is obtained from Oregon State Police (OSP) using LEDS.

(b) A national criminal records check where criminal records are obtained from the FBI through the use of fingerprint cards sent to OSP and other identifying information. A national criminal records check also includes criminal records obtained from the FBI exclusively through the use of identifying information if the FBI has determined that the SI’s fingerprints are illegible.

(16) “Denied” means that a subject individual, following a fitness determination including a weighing test, is not fit to work, volunteer, be employed, or otherwise perform in the position listed in the criminal records check request.

(17) “Department” means the Department of Human Services.

(18) “Employee” in OAR 407-007-0000 to 407-007-0100, and 407-007-0400 to 407-007-0460, means an individual working in the Department or the Authority in any position including a new hire, promotion, demotion, direct appointment, re-employment, limited duration, job rotation, developmental assignment, transfer, an individual impacted by the Department’s or the Authority’s lay-off process, or temporary hire.

(19) “Federal Tax Information” (FTI) tax return or return information received directly from the Internal Revenue Service (IRS) or obtained through an authorized secondary source, such as Social Security Administration (SSA), Federal Office of Child Support Enforcement (OCSE), Bureau of the Fiscal Service (BFS), or Centers for Medicare and Medicaid Services (CMS), or another entity acting on behalf of the IRS pursuant to an Internal Revenue Code (IRC) 6103(p)(2)(B) Agreement.

(20) “Fingerprint capture” means taking the SI’s fingerprints for a national criminal records check in a manner that meets current Oregon statutes and the OSP’s capacity for receiving fingerprints.

(21) “Fitness determination” means, regarding a criminal records check and abuse check when either or both are considered, the evaluation of whether an SI is fit to hold a position, provide care, or be granted licensure, certifications, registrations or permit to provide care. Fitness determination includes:

(a) The decision regarding SI disclosures, an Oregon criminal records check, and preliminary review (a preliminary fitness determination); or

(b) The decision regarding SI disclosures, completed criminal and abuse records check when either or both are considered including the gathering of other information as necessary, and a final review by an AD (a final fitness determination).

(22) “Founded or substantiated” has the meaning given these terms in the Department or Authority’s administrative rules corresponding to the setting in which the abuse was investigated.

(23) “Good cause” means a valid and sufficient reason for not complying with time frames set during the criminal records check process, abuse check process, or appeal process, including but not limited to an explanation of circumstances beyond an SI’s reasonable control.

(24) “Hearing representative” means a Department employee representing the Department in a contested case hearing.

(25) “Human Resources” in OAR 407-007-0000 to 407-007-0100, and 407-007-0400 to 407-007-0460, means either the Department’s Office of Human Resources or the Authority’s Office of Human Resources.

(26) “Office of Training, Investigations, and Safety (OTIS)” means the Office of Training, Investigations, and Safety, formerly the Office of Adult Abuse Prevention and Investigations, a shared service of the Department and Authority which is responsible for coordinating and conducting abuse investigations and providing protective services regarding reports of abuse and neglect of vulnerable individuals.

(27) “Oregon Criminal History and Abuse Records Data System (ORCHARDS)” means the electronic and online records system used to process and maintain background checks in compliance with OAR 407-007-0000 to 407-007-0640.

(28) “Other criminal history information” means any information obtained and allowed for a fitness determination that is not criminal offender information from OSP. Other criminal history information includes but is not limited to police investigations and records, information from local or regional criminal records information systems, justice records, court records, information from the Oregon Judicial Case Information Network, sexual offender registration records, warrants, Oregon Department of Corrections records, Oregon Department of Transportation’s Driver and Motor Vehicle Services Division information, disclosures by an SI, and any other information from any jurisdiction obtained by or provided to the Department for the purpose of conducting a fitness determination during the current background check or from any previous background checks completed by the Department.

(29) “Position” means the job or placement listed on the criminal records check request or background check request for the SI to initiate an abuse check, criminal records check, or background check. Covered positions include any type of employment, volunteer placement, contract placement, or a living or visiting situation at a facility where such a background check is required.

(30) “Subject individual (SI)” in OAR 407-007-0000 to 407-007-0100, and 407-007-0400 to 407-007-0460, means an individual on whom the Department may conduct a criminal records check and from whom the Department may require fingerprints for the purpose of conducting a national criminal records check. An SI includes any of the following:

(a) A Department employee.

(b) An individual who has been offered employment by the Department.

(c) An individual secured by the Department through the services of a temporary employment agency, staffing agency, or personnel services agency who is providing any of the duties or having access as described in section (30)(e) of this rule.

(d) A Department client who is placed in the Work Experience or JOBS Plus program at a Department site.

(e) An individual who provides or seeks to provide services to the Department at Department facilities, sites, or offices as a contractor, subcontractor, vendor, volunteer under Department direction and control, or student under Department direction and control who:

(A) May have contact with clients;

(B) Has access to personal information about employees of the Department, clients, or members of the public, including but not limited to Social Security numbers, dates of birth, driver license numbers, medical information, personal financial information, or criminal background information;

(C) Has access to information the disclosure of which is prohibited by state or federal laws, rules, or regulations or information that is defined as confidential under state or federal laws, rules, or regulations;

(D) Has access to property held in trust or to private property in the temporary custody of the state;

(E) Has payroll or fiscal functions or responsibility for:

(i) Receiving, receipting or depositing money or negotiable instruments;

(ii) Billing, collections, setting up financial accounts, or other financial transactions; or

(iii) Purchasing or selling property;

(F) Provides security, design or construction services for government buildings, grounds, or facilities;

(G) Has access to critical infrastructure or secure facilities information; or

(H) Is providing information technology services and has control over or access to information technology systems.

(f) Any individual applying for employment or a volunteer placement or any employee, volunteer, contractor, or employee of any contractor in any of the following:

(A) A State-operated or Authority-contracted secure residential treatment facility;

(B) A State-operated group home within the Department’s Stabilization and Crisis Unit;

(31) “Weighing test” means a process carried out by the Department in which available information is considered to make a fitness determination.

History

Statutory/Other Authority: ORS 181A.195, 181A.200 & 409.050
Statutes/Other Implemented: ORS 181A.195, 181A.200 & 409.010
DHS 8-2024, amend filed 03/26/2024, effective 03/27/2024
DHS 33-2022, minor correction filed 12/06/2022, effective 12/06/2022
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 32-2018, amend filed 11/28/2018, effective 12/01/2018
DHSD 12-2018, temporary amend filed 06/29/2018, effective 07/01/2018 through 12/27/2018
DHSD 4-2016, f. 6-9-16, cert. ef. 6-15-16
DHSD 2-2016(Temp), f. & cert. ef.1-14-16 thru 7-11-16
DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08
DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08

Or. Admin. R. 407-007-0020 Criminal History Check Required

(1) SIs must have a criminal records check in the following circumstances:

(a) If an individual becomes an SI on or after the effective date of these rules.

(b) Except as provided in section (2) of this rule, if the individual, whether previously considered an SI or not, changes positions, and the position requires a criminal records check.

(A) Change in a position may include but is not limited to promotion, transfer, demotion, re-employment, any return after break in service, temporary hire, agency temporary hire, temporary hire to permanent hire, lateral transfer from one district or unit to another district or unit, job rotation, rotation to permanent, developmental assignment, work out of class, work out of class to permanent, direct appointment, restoration, layoff, or recall. Change in a position also includes a substantial change in job duties indicating more responsibility or access in the duties as described in OAR 407-007-0060(3), as written in the SI’s position description.

(B) Change in a position would not include a lateral transfer in which the SI maintains the same position title, same classification withing the same unit or district, and with the same job duties as written in the SI’s position description.

(c) If the Department has reason to believe that a criminal records check is justified. Examples include but are not limited to credible evidence of new potentially disqualifying convictions or conditions by an SI or quality assurance monitoring of a previously conducted criminal records check.

(d) If the SI’s position requires use or access to CJI, or CJIS clearance pursuant to the FBI CJIS Security Policy, version 5.9.4 (12/20/2023) or current version.

(e) If the SI’s position in state services requires use or access to FTI, the SI must have a new criminal records check every five years.

(2) Human Resources may determine that conducting a new criminal records check and fitness determination for an employee is not required.

(a) After submission of a criminal records check, Human Resources may consider ending the criminal records check if:

(A) The SI who has been offered a new position has completed a previous criminal records check and fitness determination with an outcome of approved; and

(B) There has been no break in employment with the Department.

(b) Human Resources may cease the criminal records check without making a new fitness determination if there is no indication of new potentially disqualifying crimes or conditions, and at least one of the following is true:

(A) The previous criminal records check identified no potentially disqualifying crimes or conditions as defined at that time and Human Resources determines that the previous fitness determination is sufficient for the new position.

(B) Human Resources determines that the new position requires the same or less responsibility or access in the duties as described in OAR 407-007-0060(3).

(3) All SIs shall notify Human Resources within five days of being arrested, charged, or convicted of any crime.

History

Statutory/Other Authority: ORS 181A.195, 181A.200 & 409.050
Statutes/Other Implemented: ORS 181A.195, 181A.200 & 409.010
DHS 8-2024, amend filed 03/26/2024, effective 03/27/2024
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 32-2018, amend filed 11/28/2018, effective 12/01/2018
DHSD 12-2018, temporary amend filed 06/29/2018, effective 07/01/2018 through 12/27/2018
DHSD 4-2016, f. 6-9-16, cert. ef. 6-15-16
DHSD 2-2016(Temp), f. & cert. ef.1-14-16 thru 7-11-16
DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08
DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08

Or. Admin. R. 407-007-0030 Criminal Records Check Process

(1) In order to conduct a background check on an SI, BCU must receive authorization from the SI allowing the criminal records check and abuse check to proceed. If the SI refuses to provide authorization for the background check, BCU terminates the background check immediately and the Department may not allow the SI to work, volunteer, be employed, reside, or otherwise perform in positions covered by these rules.

(2) The Department conducts a criminal records checks on an SI through LEDS maintained by the Oregon State Police (OSP) in accordance with ORS chapter 181A and the rules adopted pursuant thereto (see OAR Chapter 125, division 007 and Chapter 257, division 15).

(3) If a national criminal records check of an SI is necessary, OSP provides the Department the results of criminal records checks conducted pursuant to ORS 181A.195, including fingerprint identification, through the FBI.

(4) Only Department employees who are ADs may be authorized and approved to receive and evaluate criminal offender information and other criminal records information, and to conduct fitness determinations.

(5) The Department submits the criminal records check to BCU through ORCHARDS. In accordance with OAR 125-007-0220, the criminal records check request must include the following information regarding an SI:

(a) Legal name and aliases;

(b) Date of birth;

(d) Driver license or identification card information;

(e) Disclosure of potentially disqualifying criminal history:

(A) While the SI may provide minimal information to meet this requirement, the Department finds that more details from the SI provides positive information for the weighing test in OAR 407-007-0060. The SI may disclose details of potentially disqualifying convictions and potentially disqualifying criminal conditions at a minimum, and may disclose all arrests, charges, and convictions regardless of outcome or date of occurrence. Disclosure includes any juvenile or adult record of custody, arrests, or charges; and the outcome of custody, arrests, or charges against a juvenile or adult.

(B) The disclosed crimes and the dates must reasonably match the SI’s criminal offender information and other criminal history information, as determined by the Department.

(C) The SI is not required to disclose any criminal history which has been expunged or set aside by a court in any jurisdiction. However, if the SI does disclose expunged or set aside criminal history, the Department may not consider the criminal history as potentially disqualifying or in a weighing test if the Department has proof that the criminal history has been expunged or set aside by a court in any jurisdiction.

(D) The Department may only consider criminal history as allowed in the weighing test, OAR 407-007-0060.

(f) Disclosure of other history required under OAR 407-007-0400 to 407-007-0460.

(g) Disclosure of other information to be considered in the event of a weighing test if the SI discloses any criminal history or other history required under OAR 407-007-0400 to 407-007-0460:

(A) The SI may provide mitigating information for BCU to review in a weighing test.

(B) Human Resources or BCU may require the SI to provide other information as needed to conduct the weighing test.

(h) Position title and description of duties to be considered.

(6) The criminal records check request must include the following:

(a) A notice regarding disclosure of Social Security number indicating:

(A) The SI’s disclosure of his or her Social Security Number is voluntary; and

(B) The Department requests the Social Security number solely for the purpose of positively identifying the SI during the criminal records check process.

(b) A notice that the SI may be subject to fingerprinting and a criminal records check.

(7) The Department verifies the SI’s identity using methods which include but are not limited to asking for current and valid government-issued photo identification and confirming the information on the photo identification with the SI and the information included in the criminal records check request.

(8) BCU conducts an Oregon criminal records check after receiving a criminal records check request. Using information submitted, BCU may obtain criminal offender information from the LEDS system and may request other criminal history information as needed.

(9) BCU may conduct a fingerprint-based national criminal records check after an Oregon criminal records check is completed.

(a) A fingerprint-based national criminal records check may be completed under any of the following circumstances:

(A) The SI has out of state residency evidenced by the SI’s possession of an out of state driver license or being outside Oregon for 60 or more consecutive days during the previous five years.

(B) The criminal offender information from the LEDS check, SI disclosures, or any other criminal history information obtained by the Department indicates there may be criminal records outside of Oregon.

(D) The SI’s position is at Oregon state institutions under OAR 407-007-0010.

(E) The SI is assigned duties involving any aspect of a criminal records or abuse check process.

(F) A fingerprint-based criminal records check is required by federal or state laws or regulations, other rules adopted by the Department, or by contract with the Department.

(G) If the Department has reason to believe that fingerprints are needed to make a final fitness determination.

(b) BCU must request fingerprints for an SI under the age of 18 in accordance with OAR 125-007-0220(3).

(A) The Department must give the SI notice regarding the Social Security number as set forth in section (5) of this rule.

(B) The Department may require new fingerprint capture if previous captures are rejected by OSP or the FBI.

(10) BCU requires that due diligence be exercised in complying with national criminal records check requirements including fingerprints. However, if BCU determines that an SI is unable to submit fingerprints, BCU must document the circumstances that lead to the decision to waive fingerprinting and proceed with obtaining other criminal history information from states based on an SI’s residential history and disclosures in lieu of a fingerprint based criminal records check as required in this rule. A fingerprint-based national criminal records may be waived due to inability to submit fingerprints unless fingerprints are required by state or federal laws or regulations. Reasons for inability to submit fingerprints include but are not limited to:

(a) A physical condition in which all the SI's fingerprints are illegible or missing, or which makes the capture of fingerprints impossible;

(b) A mental or psychological condition which makes the capture of fingerprints impossible;

(11) The Department may also research other criminal history information from other states in lieu of or in addition to a national criminal records check. Reasons for such research include but are not limited to when:

(a) The Department has reason to believe that out-of-state criminal records may exist.

(b) The Department has been unable to complete a national criminal records check due to illegible fingerprints.

(c) The national criminal records check results show incomplete information about charges or criminal records without final disposition.

(d) There is indication of residency or criminal records in a state that does not submit all criminal records to the FBI.

(e) Based on available information, the Department has reason to believe that other criminal history information regarding the SI is present in another state.

(12) In order to complete a criminal records check and fitness determination, the Department may require additional information from an SI.

(a) Additional information includes but is not limited to criminal, judicial, other background information, or proof of identity.

(b) If an SI who is a represented Department employee is required to provide additional information, the process for obtaining that information through investigatory interviews must adhere to collective bargaining agreements on investigatory interviews.

(13) BCU may conduct further research regarding criminal history through local jurisdiction courts, Department records, or other resources.

(14) In addition to criminal records check requirements in this rule, a criminal records check for an SI in a position which requires use or access to CJI, or CJIS clearance must include:

(a) A fingerprint-based national check;

(b) A review by Oregon State Police for CJIS clearance;

(15) In addition to criminal records check requirements in this rule, a criminal records check for an SI in a position which requires use or access to FTI must include:

(a) A fingerprint-based national check;

(b) A check of local law enforcement agencies where the SI has lived, worked, or attended school within the past five years;

(16) The Department may conduct a criminal records check in situations of imminent danger on SIs who have been background checked under these rules.

(a) If the Department determines there is indication of potentially disqualifying criminal behavior by an SI that could more likely than not pose an immediate risk to the Department, its clients, or vulnerable persons, the Department may authorize a criminal records check without the completion of a criminal records check request.

(b) If the Department determines that a fitness determination based on the criminal records check would be adverse to the SI, the Department must provide the SI, if available, the opportunity to disclose potentially disqualifying convictions and conditions, and other information as indicated in OAR 407-007-0060 before the completion of the fitness determination.

(17) If the criminal records check process results in an incomplete fitness determination as described in OAR 407-007-0070(2)(d), BCU closes the criminal records check. When a criminal records check results in an incomplete fitness determination, the SI must not be allowed to work, volunteer, be employed, or otherwise perform in the position listed on the criminal records check request. An incomplete fitness determination results in immediate termination, dismissal, or removal of the SI.

(18) BCU must document criminal records checks conducted under this rule.

History

Statutory/Other Authority: ORS 181A.195, 181A.200 & 409.050
Statutes/Other Implemented: ORS 181A.195, 181A.200 & 409.010
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 32-2018, amend filed 11/28/2018, effective 12/01/2018
DHSD 12-2018, temporary amend filed 06/29/2018, effective 07/01/2018 through 12/27/2018
DHSD 4-2016, f. 6-9-16, cert. ef. 6-15-16
DHSD 2-2016(Temp), f. & cert. ef.1-14-16 thru 7-11-16
DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08
DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08

Or. Admin. R. 407-007-0041 Potentially Disqualifying Convictions

(1) A conviction of any of the crimes listed in these rules is potentially disqualifying. Offenses or convictions that are classified as less than a misdemeanor, such as violations or infractions, are not potentially disqualifying (see ORS 161.505 to 161.565).

(2) The crimes listed in this section are permanent review crimes which require that a fitness determination with a weighing test be completed regardless of date of conviction.

(a) ORS 163.095, Aggravated murder

(b) ORS 163.107, Murder I

(d) ORS 163.118, Manslaughter I

(e) ORS 163.125, Manslaughter II

(f) ORS 163.145, Criminally negligent homicide

(g) ORS 163.149, Aggravated vehicular homicide

(h) ORS 163.165, Assault III

(i) ORS 163.175, Assault II

(j) ORS 163.185, Assault I

(k) ORS 163.187, Strangulation

(L) ORS 163.200, Criminal mistreatment II

(m) ORS 163.205, Criminal mistreatment I

(n) ORS 163.225, Kidnapping II

(o) ORS 163.235, Kidnapping I

(p) ORS 163.263, Subjecting another person to involuntary servitude in the second degree

(q) ORS 163.264, Subjecting another person to involuntary servitude in the first degree

(r) ORS 163.266, Trafficking in persons

(s) ORS 163.275, Coercion

(t) ORS 163.355, Rape III

(u) ORS 163.365, Rape II

(v) ORS 163.375, Rape I

(w) ORS 163.385, Sodomy III

(x) ORS 163.395, Sodomy II

(y) ORS 163.405, Sodomy I

(z) ORS 163.408, Unlawful sexual penetration II

(aa) ORS 163.411, Unlawful sexual penetration I

(bb) ORS 163.413, Purchasing sex with a minor, if the courts designate the offense as a sex crime pursuant to ORS 163.413(3)(d), or the offense is the defendant’s second or subsequent convictions under ORS 163.413(3)(b)(B)

(cc) ORS 163.415, Sexual abuse III

(dd) ORS 163.425, Sexual abuse II

(ee) ORS 163.427, Sexual abuse I

(ff) ORS 163.432, Online sexual corruption of a child in the second degree, if the offender reasonably believed the child to be more than five years younger than the offender

(gg) ORS 163.433, Online sexual corruption of a child in the first degree, if the offender reasonably believed the child to be more than five years younger than the offender

(hh) ORS 163.435, Contributing to the sexual delinquency of a minor

(ii) ORS 163.445, Sexual misconduct, if the offender is at least 18 years of age

(jj) ORS 163.465, Public indecency

(kk) ORS 163.467, Private indecency

(LL) ORS 163.525, Incest, with a child victim

(mm) ORS 163.535, Abandonment of a child

(nn) ORS 163.537, Buying or selling a person under 18 years of age

(oo) ORS 163.547, Child neglect I

(pp) ORS 163.670, Using child in display of sexually explicit conduct

(qq) ORS 163.680, Paying for viewing a child’s sexually explicit conduct

(rr) ORS 163.684, Encouraging child sexual abuse I

(ss) ORS 163.686, Encouraging child sexual abuse II

(tt) ORS 163.687, Encouraging child sexual abuse III

(uu) ORS 163.688, Possession of materials depicting sexually explicit conduct of a child I

(vv) ORS 163.689, Possession of materials depicting sexually explicit conduct of a child II

(ww) ORS 163.700, Invasion of personal privacy II

(xx) ORS 163.701, Invasion of personal privacy I

(yy) ORS 163A.005, All crimes listed in definition of “Sex Crime”, including Transporting child pornography into the state

(zz) ORS 164.055, Theft I

(aaa) ORS 164.057, Aggravated theft I

(bbb) ORS 164.098, Organized retail theft

(ccc) ORS 164.125, Theft of services

(ddd) ORS 164.215, Burglary II

(eee) ORS 164.225, Burglary I

(fff) ORS 164.325, Arson I

(ggg) ORS 164.377, Computer crime

(hhh) ORS 164.405, Robbery II

(iii) ORS 164.415, Robbery I

(jjj) ORS 165.013, Forgery I

(kkk) ORS 165.022, Criminal possession of a forged instrument I

(LLL) ORS 165.032, Criminal possession of a forgery device

(mmm) ORS 165.800, Identity theft

(nnn) ORS 165.803, Aggravated identity theft

(ooo) ORS 167.012, Promoting prostitution

(ppp) ORS 167.017, Compelling prostitution

(qqq) ORS 167.057, Luring a minor

(rrr) ORS 167.320, Animal abuse I

(sss) ORS 167.322, Aggravated animal abuse I

(ttt) ORS 167.333, Sexual assault of animal

(uuu) ORS 475.752(1), (2), and (6), Prohibited acts generally (regarding delivery and manufacture drug crimes; formerly ORS 475.840, 2005-2011)

(vvv) ORS 475.806, Unlawful manufacture of hydrocodone

(www) ORS 475.808, Unlawful manufacture of hydrocodone within 1,000 feet of school

(xxx) ORS 475.810, Unlawful delivery of hydrocodone

(yyy) ORS 475.812, Unlawful delivery of hydrocodone within 1,000 feet of school

(zzz) ORS 475.816, Unlawful manufacture of methadone

(aaaa) ORS 475.818, Unlawful manufacture of methadone within 1,000 feet of school

(bbbb) ORS 475.820, Unlawful delivery of methadone

(cccc) ORS 475.822, Unlawful delivery of methadone within 1,000 feet of school

(dddd) ORS 475.826, Unlawful manufacture of oxycodone

(eeee) ORS 475.828, Unlawful manufacture of oxycodone within 1,000 feet of school

(ffff) ORS 475.830, Unlawful delivery of oxycodone

(gggg) ORS 475.832, Unlawful delivery of oxycodone within 1,000 feet of school

(hhhh) ORS 475.840(1) and (2), Prohibited acts generally (regarding delivery and manufacture drug crimes formerly ORS 475.992; renumbered to ORS 475.752 in 2011)

(iiii) ORS 475.846, Unlawful manufacture of heroin

(jjjj) ORS 475.848, Unlawful manufacture of heroin within 1,000 feet of school

(kkkk) ORS 475.850, Unlawful delivery of heroin

(LLLL) ORS 475.852, Unlawful delivery of heroin within 1,000 feet of school

(mmmm) ORS 475.866, Unlawful manufacture of 3,4-methylenedioxymethamphetamine

(nnnn) ORS 475.868, Unlawful manufacture of 3,4-methylenedioxymethamphetamine within 1,000 feet of school

(oooo) ORS 475.870, Unlawful delivery of 3,4-methylenedioxymethamphetamine

(pppp) ORS 475.872, Unlawful delivery of 3,4-methylenedioxymethamphetamine within 1,000 feet of school

(qqqq) ORS 475.876, Unlawful manufacture of cocaine

(rrrr) ORS 475.878, Unlawful manufacture of cocaine within 1,000 feet of school

(ssss) ORS 475.880, Unlawful delivery of cocaine

(tttt) ORS 475.882, Unlawful delivery of cocaine within 1,000 feet of school

(uuuuu) ORS 475.886, Unlawful manufacture of methamphetamine

(vvvv) ORS 475.888, Unlawful manufacture of methamphetamine within 1,000 feet of school

(wwww) ORS 475.890, Unlawful delivery of methamphetamine

(xxxx) ORS 475.892, Unlawful delivery of methamphetamine within 1,000 feet of school

(yyyy) ORS 475.904, Unlawful delivery of controlled substance within 1,000 feet of school

(zzzz) ORS 475.906, Penalties for distribution to minors

(aaaaa) ORS 475.908, Causing another person to ingest a controlled substance

(bbbbb) ORS 475.910, Application of controlled substance to the body of another person

(ccccc) ORS 475.914, Prohibited acts for registrants (with the Oregon State Board of Pharmacy)

(ddddd) ORS 475C.333, Prohibition against giving marijuana item as prize

(eeeee) ORS 475C.345, Unlawful delivery of marijuana item

(fffff) ORS 475C.349, Unlawful manufacture of marijuana item

(ggggg) ORS 475C.373, Unlawful sale or delivery of marijuana paraphernalia

(hhhhh) Any crime of attempt, solicitation, or conspiracy to commit a crime listed in this section pursuant to ORS 161.405, 161.435, or 161.450

(iiiii) Any crime in any other jurisdiction that is the substantial equivalent of any of the Oregon crimes listed in section (2) of this rule, as determined by BCU. This includes any U.S. military crimes which are the substantial equivalent of crimes listed in section (2) of this rule.

(3) The crimes listed in this section are ten-year review crimes which require that a fitness determination with a weighing test be completed if the date of conviction is within ten years of the background check submission.

(a) Any misdemeanor or felony not listed in section (2) or (4) of this rule in Oregon or any other jurisdiction. This includes U.S. military crimes not considered to be the substantial equivalent of crimes listed in section (1) of this rule.

(b) Any crime of attempt, solicitation, or conspiracy to commit a crime listed in this section pursuant to ORS 161.405 or 161.435

(4) Two or more convictions of ORS 813.010 (Driving under the Influence of Intoxicants (DUII)) or ORS 830.325 (Operating Boat while under Influence of Intoxicants) or a misdemeanor conviction under a law in any jurisdiction that imposes criminal penalties for operating a vehicle or boat while under the influences of intoxicants, are potentially disqualifying if they have occurred within five years of the date of the background check submission.

(a) A single conviction of a crime in section (4) of this rule is not considered potentially disqualifying regardless of the date of conviction.

(b) If an SI has two or more convictions of a crime in section (4) of this rule and only one, or none, occurred within five years from the date of the background check submission, the convictions are not potentially disqualifying.

(5) Evaluations of crimes may be based on available information in Oregon laws and laws in other jurisdictions regarding the crime.

(6) Under no circumstances may a crime be considered potentially disqualifying if it is:

(a) Related to marijuana if the crime is no longer a criminal offense in the originating jurisdiction.

(b) Part of a juvenile record that has been expunged pursuant to ORS 419A.260 to 419A.262.

History

Statutory/Other Authority: ORS 181A.195 & ORS 409.050
Statutes/Other Implemented: ORS 181A.195
DHS 8-2024, amend filed 03/26/2024, effective 03/27/2024
DHS 1-2022, minor correction filed 02/28/2022, effective 02/28/2022
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 2-2020, adopt filed 02/10/2020, effective 02/10/2020
DHSD 19-2019, temporary adopt filed 10/01/2019, effective 10/01/2019 through 03/24/2020
DHSD 18-2019, temporary adopt filed 09/26/2019, effective 09/27/2019 through 03/24/2020

Or. Admin. R. 407-007-0050 Potentially Disqualifying Conditions

Pursuant to OAR 125-007-0270(5), the following are potentially disqualifying conditions, if they exist on the date of the final fitness determination unless otherwise noted:

(1) False statement is potentially disqualifying when all the following conditions are met:

(a) In a background check request, an SI has submitted the answer, “No” to the question regarding whether the SI has criminal history;

(b) The Department finds potentially disqualifying criminal history in the criminal records check; and

(c)The found potentially disqualifying criminal history occurred before the date of the SI’s submission.

(2) The SI is a registered sex offender in any jurisdiction. There is a rebuttable presumption that an SI is likely to engage in conduct that would pose a significant risk to the Department, its clients, or vulnerable individuals if the SI has been designated a predatory sex offender under ORS 181.585 or found to be a sexually violent dangerous offender under ORS 144.635 (or similar statutes in other jurisdictions).

(3) The SI has an outstanding warrant for any permanent review crime in any jurisdiction.

(4) The SI has a deferred sentence, conditional discharge, or is participating in a diversion program for a permanent review crime in any jurisdiction.

(5) The SI is currently on probation, parole, or post-prison supervision for a potentially disqualifying crime in any jurisdiction.

(6) The SI is found in violation of post-prison supervision, parole, or probation for a potentially disqualifying crime or condition in any jurisdiction regardless of the original conviction date within five years from the date of the final fitness determination.

(7) The SI has an unresolved arrest, charge, or a pending indictment for any permanent review crime.

(8) The SI has been arrested for a permanent review crime in any jurisdiction as a fugitive from another state or a fugitive from justice for a permanent review crime that results in a potentially disqualifying conviction or condition.

(9) An adjudication in a juvenile court in any jurisdiction, finding that the SI was responsible for a permanent review crime that would result in a conviction if committed by an adult. Subsequent adverse rulings from a juvenile court, such as probation violations, are also potentially disqualifying if occurring within five years from the date of the final fitness determination.

(10) A finding of “guilty except for insanity,” “guilty except by reason of insanity,” “not guilty by reason of insanity,” “responsible except for insanity,” “not responsible by reason of mental disease or defect,” or similarly worded disposition in any jurisdiction regarding a permanent review crime , unless the local statutes indicate that such an outcome is considered an acquittal.

History

Statutory/Other Authority: ORS 181A.195, 181A.200 & 409.050
Statutes/Other Implemented: ORS 181A.195, 181A.200 & 409.010
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 4-2016, f. 6-9-16, cert. ef. 6-15-16
DHSD 2-2016(Temp), f. & cert. ef.1-14-16 thru 7-11-16
DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08
DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08

Or. Admin. R. 407-007-0060 Weighing Test

If the SI has potentially disqualifying convictions under OAR 407-007-0041, or potentially disqualifying conditions under OAR 407-007-0050, the Department conducts a weighing test. If the SI is subject to an abuse check in accordance with OAR 407-007-0400 to 407-007-0460 and has potentially disqualifying abuse, the weighing test includes the consideration of factors in this rule and in OAR 407-007-0430. The weighing test includes consideration of factors pursuant to ORS 181A.195 and the following if available at the time of the weighing test:

(1) Circumstances regarding the nature of potentially disqualifying crimes and conditions including but not limited to:

(a) Age, maturity and capacity of the SI at time of the potentially disqualifying conviction or condition.

(b) Details of incidents leading to or resulting in potentially disqualifying convictions or conditions.

(c) If there are more than one potentially disqualifying conviction or condition (including potentially disqualifying abuse defined in OAR 407-007-0410), the timeline, frequency and relation between potentially disqualifying history.

(d) Facts that support the potentially disqualifying conviction or condition.

(e) Passage of time since commission of the crime or potentially disqualifying condition.

(f) Consideration of state or federal laws, regulations, or rules covering the position or the Department, regarding the potentially disqualifying convictions or conditions.

(g) Consideration of state or federal laws, regulations, or rules that impact what is considered potentially disqualifying. For example:

(A) Effective February 1, 2021, most possession crimes in Oregon were reduced to violations, making them no longer potentially disqualifying.

(B) The Department may give less weight to a potentially disqualifying conviction or condition which is only potentially disqualifying because it was a crime at the time it occurred but at the time of the weighing test is no longer considered a crime nor is associated with any potentially disqualifying conviction or condition.

(C) The consideration given potentially disqualifying convictions or conditions impacted by federal laws, regulations, or rules is determined by the number of these potentially disqualifying convictions or conditions and evaluation of relevant factors in sections (1), (2) and (3).

(2) Other factors when available including but not limited to:

(a) Periods of incarceration, including rehabilitation or other impacts on SI.

(b) Status of and compliance with parole, post-prison supervision, or probation regarding potentially disqualifying convictions or conditions.

(d) Evidence of other treatment or rehabilitation related to potentially disqualifying convictions or conditions.

(e) Likelihood of repetition of behaviors leading to potentially disqualifying convictions or conditions.

(f) Changes in circumstances subsequent to the criminal activity or disqualifying conditions including but not limited to:

(A) History of high school, college, or other education related accomplishments.

(B) Work history (employee or volunteer).

(D) Written recommendations from current or past employers.

(g) Indication of the SI’s cooperation, honesty during the background check process, including:

(A) Acknowledgment and acceptance of responsibility of potentially disqualifying convictions and conditions; or

(B) Providing false, incomplete or misleading information regarding potentially disqualifying convictions and conditions, or any subsequent circumstances.

(3) The Department must consider the relevancy of the SI’s potentially disqualifying convictions or conditions to the position or to the environment of the position. Consideration includes the relation between the SI’s potentially disqualifying convictions or conditions and the following tasks or duties in the position:

(a) Access to or direct contact with Department clients, client property, or client funds.

(b) Access to information technology services, or control over or access to information technology systems that would allow an individual holding the position to harm the information technology systems or the information contained in the systems.

(c) Access to information, the disclosure of which is prohibited by state or federal laws, rules, or regulations, or information that is defined as confidential under state or federal laws, rules, or regulations.

(d) Access to payroll functions.

(e) Responsibility for receiving, receipting, or depositing money or negotiable instruments.

(f) Responsibility for billing, collections, or other financial transactions.

(g) Access to mail received or sent to the Department, including interagency mail, or access to any mail facilities in the Department.

(h) Responsibility for auditing the Department or other governmental agencies.

(i) Responsibility for any personnel or human resources functions.

(j) Access to personal information about employees, clients, or members of the public including Social Security numbers, dates of birth, driver license numbers, residency information, medical information, personal financial information, criminal offender information, or other criminal records information.

(k) Access to medications, chemicals, or hazardous materials; access to facilities in which medications, chemicals, and hazardous materials are present; or access to information regarding the transportation of medications, chemicals, or hazardous materials.

(L) Access to property to which access is restricted in order to protect the health or safety of the public.

(m) Responsibility for security, design, or construction services. This includes government buildings, grounds, or facilities or buildings, owned, leased, or rented for government purposes.

(n) Access to critical infrastructure or security-sensitive facilities or information.

(o) Access or use of CJI, or the need for CJIS clearance.

(p) Access or use of FTI.

History

Statutory/Other Authority: ORS 181A.195, 181A.200 & 409.050
Statutes/Other Implemented: ORS 181A.195, 181A.200, 409.010 & 443.008
DHS 8-2024, amend filed 03/26/2024, effective 03/27/2024
DHS 5-2023, temporary amend filed 10/04/2023, effective 10/04/2023 through 03/30/2024
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 32-2018, amend filed 11/28/2018, effective 12/01/2018
DHSD 12-2018, temporary amend filed 06/29/2018, effective 07/01/2018 through 12/27/2018
DHSD 4-2016, f. 6-9-16, cert. ef. 6-15-16
DHSD 2-2016(Temp), f. & cert. ef.1-14-16 thru 7-11-16
DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08
DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08

Or. Admin. R. 407-007-0065 Hired on a Preliminary Basis

(1) BCU may complete a preliminary fitness determination if it receives a request from Human Resources or the hiring manager for an SI to work, volunteer, be employed, or otherwise perform in the position listed in the criminal records check request prior to a final fitness determination. The Department may not hire an SI on a preliminary basis prior to the completion of a preliminary fitness determination.

(2) After review of the criminal records check request, the Department makes one of the following determinations:

(a) An SI may be hired on a preliminary basis, only during the time period prior to a final fitness determination, into the position listed in the criminal records check request and allowed to participate in training, orientation, and position activities under the one of the following circumstances:

(A) If there is no indication of potentially disqualifying convictions or conditions in the criminal records check request and the Department has no reason to believe the SI has potentially disqualifying convictions or conditions.

(B) If an SI discloses potentially disqualifying convictions or conditions, the SI may be hired on a preliminary basis only after BCU completes a weighing test. The Department may hire an SI on a preliminary basis only if, based on information available at the time, BCU determines that more likely than not that the SI poses no potential threat to the Department, its clients, or vulnerable persons.

(b) The Department may not hire an SI on a preliminary basis if the BCU or Human Resources determines that:

(A) After a weighing test, the SI more likely than not poses a potential threat to the Department, its clients, or vulnerable persons;

(B) The SI’s most recent criminal records check under these rules or other Department criminal records check rules resulted in a denial; or

(C) The SI is currently involved in contesting a criminal records check determination under these or other Department criminal records check or abuse check rules.

(3) An SI who is hired on a preliminary basis must be actively supervised at all times by an individual who has been approved without restrictions pursuant to these rules or previous Department criminal records check rules. The individual providing active supervision must do at all times the following:

(a) Be in the same building as the SI or, if outdoors of Department buildings or any location off Department property, be within line of sight and hearing of the SI;

(b) Know where the SI is and what the SI is doing; and

(4) An SI who was approved without restrictions within the previous 24 months through a documented criminal records check pursuant to these rules may work after being hired on a preliminary basis without active supervision. The 24-month time frame is calculated from the date of previous approval to the date starting the new position. This exemption is not allowed in any of the following situations:

(a) If the SI cannot provide documented proof that he or she worked continuously under the previous approval for at least one year.

(b) If there is evidence of criminal activity within the previous 24 months.

(c) If the Department determines the job duties in the new position are so substantially different from the previous position that the previous fitness determination is inadequate for the new position.

(5) The Department may immediately remove an SI hired on a preliminary basis from the position. Removal is not subject to hearing or appeal. Reasons for removal include but are not limited to the following:

(a) There is any indication of falsification in the criminal records check request.

(b) The Department determines that allowing the SI to be hired on a preliminary basis is not appropriate, based on the application, criminal records, position duties, preliminary fitness determination by the Department, or regulations regarding the position.

(6) Nothing in this rule is intended to require that an SI, who is eligible for being hired on a preliminary basis be allowed to work, volunteer, be employed, or otherwise perform in the position listed in the criminal records check request prior to a final fitness determination.

(7) Preliminary fitness determinations must be documented in writing, including any details regarding a weighing test, if required.

History

Statutory/Other Authority: ORS 181A.195, 181A.200 & 409.050
Statutes/Other Implemented: ORS 181A.195, 181A.200 & 409.010
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 32-2018, amend filed 11/28/2018, effective 12/01/2018
DHSD 12-2018, temporary amend filed 06/29/2018, effective 07/01/2018 through 12/27/2018
DHSD 4-2016, f. 6-9-16, cert. ef. 6-15-16
DHSD 2-2016(Temp), f. & cert. ef.1-14-16 thru 7-11-16
DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10

Or. Admin. R. 407-007-0070 Final Fitness Determinations

The Department shall make a final fitness determination in accordance with OAR 125-007-0260 and this rules after all necessary criminal records checks and a weighing test, if necessary, have been completed.

(1) The Department may obtain and consider additional information as necessary to complete the final fitness determination. Particularly in weighing tests where it appears the outcome may be adverse to an SI, the Department shall attempt to obtain additional information for the weighing test from the SI directly through correspondence, phone, or both.

(2) The final fitness determination of a criminal records check, and an abuse check if required in accordance with OAR 407-007-0400 to 407-007-0460, shall result in one of the following outcomes:

(a) The Department may approve an SI if:

(A) The SI has no potentially disqualifying convictions or potentially disqualifying conditions; or

(B) The SI has potentially disqualifying convictions or potentially disqualifying conditions and, after a weighing test with available information, the Department determines that more likely than not the SI poses no risk to the Department, its clients, or vulnerable persons.

(b) The Department may approve an SI with restrictions if, after a weighing test with available information, it determines that more likely than not that the SI poses no risk to the Department, its clients, or vulnerable persons, if certain restrictions are placed on the SI, such as but not limited to restrictions to one or more specific clients, position duties, or environments. The Department shall complete a new background check and fitness determination on the SI before removing a restriction. A fitness determination of approved with restrictions shall only be considered for the following SIs:

(A) An individual secured by the Department through the services of a temporary employment agency, staffing agency, or personnel services agency who is providing any of the duties or having access as described in OAR 407-007-0060(3).

(B) A volunteer or student under Department direction and control.

(D) Any individual who is required to complete a criminal records check pursuant to the statutory authority of ORS 181A.195 and 181A.200 or the authority of these rules pursuant to a contract with the Department.

(c) The Department shall deny an SI whom it determines, after a weighing test with available information, more likely than not poses a risk to the Department, its clients, or vulnerable individuals.

(d) The Department shall consider a criminal records check to have any outcome of incomplete fitness determination in the following circumstances:

(A) The Department or SI discontinues the application or the SI fails to cooperate with the criminal records check or fitness determination process, including but not limited to refusal to be fingerprinted or failing to respond in a timely manner to requests from the Department. The criminal records check request is considered closed and there are no hearing rights for the SI.

(B) BCU determines that the SI is ineligible for the position due to federal requirements, state statutes, or for reasons other than criminal history. The criminal records check request is considered closed and SI has no hearing rights.

(C) BCU or the QE withdraws or closes the background check request before a final fitness determination for any reason. The background check request is considered closed and the SI has no hearing rights.

(D) The SI withdraws the application, leaves the position prior to completion of the background check, or the Department cannot locate or contact the SI. The background check request is considered closed and the SI has no hearing rights.

(3) Upon completion of a final fitness determination, the Department shall provide the SI with written notice, which shall:

(a) Be in a Department approved format;

(b) Include information regarding appeal rights for denied or approved with restrictions outcomes if appeal is allowed. The notice shall also include a statement that it becomes a final order by default in the event of a withdrawal or a failure to participate during the appeal or hearing; and

(c) Be mailed or hand-delivered to the SI no later than 14 calendar days after the decision. The effective date of action shall be recorded on the notice.

(d) Human Resources shall also provide employees with all formal disciplinary documents and letters up to and including a letter of dismissal.

(4) When an SI is denied, the Department may not allow the SI to work, volunteer, be employed, or otherwise perform in the position listed in the criminal records check request. A denial applies only to the position in question.

(a) The process for a Department employee’s removal from service or dismissal shall adhere to Department-wide Support Services discharge policies, Department of Administrative Services’ Human Resource Services Division dismissal polices, and collective bargaining agreements on discharge, as applicable.

(b) For all other SIs, a denial shall result in immediate dismissal.

(5) Final fitness determinations shall be documented in writing, including any other necessary details including but not limited to restrictions in a restricted approval or potentially disqualifying crimes or conditions in a denial.

(6) The Department shall make new fitness determinations for each application. The outcome of previous fitness determinations does not set a precedent for subsequent fitness determinations.

History

Statutory/Other Authority: ORS 181A.195, 181A.200 & 409.050
Statutes/Other Implemented: ORS 181A.195, 181A.200 & 409.010
DHS 8-2024, amend filed 03/26/2024, effective 03/27/2024
DHS 5-2023, temporary amend filed 10/04/2023, effective 10/04/2023 through 03/30/2024
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 4-2016, f. 6-9-16, cert. ef. 6-15-16
DHSD 2-2016(Temp), f. & cert. ef.1-14-16 thru 7-11-16
DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08
DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08

Or. Admin. R. 407-007-0080 Contesting a Final Fitness Determination

(1) An SI may contest a final fitness determination of denied or approved with restrictions pursuant to OAR 407-007-0070.

(2) An SI who is already employed by the Department at the time of the final fitness determination may appeal through applicable personnel rules, policies, and collective bargaining provisions. The SI’s decision to do so is an election of remedies as to the rights of the SI with respect to the fitness determination and constitutes a waiver of the appeal process described in this rule.

(3) This appeal process is conducted in accordance with OAR 125-007-0300, ORS 183.411 to 183.497 and the Attorney General’s Uniform and Model Rules of Procedure for the Office of Administrative Hearings (OAH), OAR 137-003-0501 to 137-003-0700.

(4) During the appeal process, the final fitness determination remains in effect.

(a) If an SI is denied, then the SI may not work, volunteer, be employed, or otherwise perform in positions covered by these rules.

(b) If an SI has an approval with restrictions, then the SI may only work under the terms of the restriction listed on the notice of final fitness determination during on the appeal.

(5) A positive change of the final fitness determination at any time during the appeal process does not guarantee employment or placement. A positive change is either:

(a) A denial changing to an approval or an approval with restrictions; or

(b) An approval with restrictions changing to an approval.

(6) The SI may represent himself or herself or have legal representation during the appeal process. In this rule, the term “SI” includes the SI’s legal representative if the SI has provided the Department with such information.

(a) If the SI is a member of a bargaining unit, the SI may represented by the certified or recognized exclusive representative of the bargaining unit.

(b) For all other SIs, the SI’s legal representative may be an Oregon licensed attorney.

(7) A hearing representative may represent BCU in contested case hearings. Alternatively, BCU may be represented by the Office of the Attorney General.

(8) Any contested case hearing request must be received by the Department by 11:59 p.m. on the due date, or if mailed, postmarked by 11:59 p.m. on the due date.

(a) To request a contested case hearing the SI must complete, sign, and date the Hearing Request form.

(b) The completed, signed and dated form must be received by the Department on or before the due date. The due date is 30 calendar days after the effective date of action on the notice of fitness determination.

(c) If a request for a contested case hearing is not timely, the Department must determine, based on a written statement from the SI and available information, if there is good cause to proceed with the appeal process.

(d) The Department may refer an untimely request to OAH for a contested case hearing solely on the issue of timeliness of the contested case hearing request.

(9) After the Department receives the SI’s request for a contested case hearing, the Department may conduct an administrative review before referring the SI’s request for a contested case hearing to OAH.

(a) The administrative review is not open to the public.

(b) The SI must participate in the administrative review.

(c) In addition to any other method of communication, the Department must provide the SI with written correspondence that initiates the administrative review process (“Correspondence”). The Correspondence must include a due date for the SI.

(d) Participation by the SI may include but is not limited to providing additional information or additional documents requested on or before the due date specified in the Department’s Correspondence.

(e) Any response to the Department’s Correspondence must be received by the Department by 11:59 p.m. on the due date, or if mailed, postmarked by 11:59 p.m. on the due date.

(f) For the purposes of this rule, failure to participate in the administrative review means that the SI does not respond in any way to the Department’s Correspondence by the specified due date. Failure to participate in the administrative review process results in a dismissal order pursuant to paragraph (13)(b)(C) of this rule.

(g) The outcome of an administrative review is a new fitness determination.

(A) If the hearing representative makes a positive change to approved, BCU must issue an amended notice to the SI and Human Resources.

(B) If the hearing representative makes a positive change from denial to approval with restrictions, BCU must issue an amended notice to the SI and Human Resources. If the SI does not continue with a contested case hearing, BCU must issue a final order.

(C) If the hearing representative maintains the outcome of the final fitness determination, or changes an approval with restrictions to a denial, BCU refers the contested case hearing request to OAH.

(10) The SI may not challenge a finding of criminal conviction that was a basis for the adverse outcome under this rule. The SI has the right to contest the weight the Department has given to:

(a) The evidence;

(b) The factors used in the weighing test; or

(11) The Department may conduct additional criminal records checks during the appeal process to update or verify the SI’s criminal records. If needed, the Department must amend the notice of fitness determination during the appeal process while still maintaining the original hearing rights and deadlines as far as allowed under the Model Rules of Procedure for OAH.

(12) An administrative law judge from OAH conducts the contested case hearing.

(a) The administrative law judge must make a new fitness determination based on the evidence in the contested case hearing record.

(b) The only remedy that may be awarded is a new fitness determination of approved; denied; or if allowed pursuant to OAR 407-007-070(1)(b), approval with restrictions.

(c) Under no circumstances is the Department required to place an SI in any position, or required to accept services or enter into a contractual agreement with an SI.

(13) The result of an appeal is a final order.

(a) In the following situations, the notice of fitness determination becomes the final order by default as if the SI never requested a hearing:

(A) Failure to request a hearing in the time allotted in this rule. No other document may be issued after the notice of fitness determination.

(B) Withdrawal of the request for hearing at any time during the appeal process.

(b) The Department issues an order dismissing the appeal (a “dismissal order”) in the following circumstances:

(A) The Department must dismiss a contested case hearing request if the administrative review results in a positive outcome. The only exception to the Department issuing a dismissal order is when the SI proceeds to contested case hearing because the administrative review changed fitness determination from denial to approval with restrictions.

(B) The SI may withdraw a hearing request verbally or in writing at any time before the issuance of a final order. A dismissal order due to a withdrawal is effective the date the withdrawal is received by the Department or OAH. The SI may cancel the withdrawal in writing within 14 calendar days after the date of withdrawal.

(C) The Department must dismiss a hearing request when the SI fails to participate in the administrative review. Failure to participate as defined in (9)(f) of this rule must result in termination of hearing rights through a dismissal order.

(i) The dismissal order is effective on the date the Department mails the dismissal order.

(ii) The Department must review a good cause request to reinstate hearing rights if received in writing by the Department within 14 calendar days from the date of the dismissal order.

(D) The Department must dismiss a hearing request when the SI fails to appear at the time and place specified for the contested case hearing.

(i) The dismissal order is effective on the date scheduled for the hearing.

(ii) The Department must review a good cause request to reinstate hearing rights if received in writing by the Department within 14 calendar days from the date of the dismissal order.

(A) If no written exceptions are received by the Department within 14 calendar days after the service of the proposed and final order, the proposed and final order becomes the final order.

(B) If timely written exceptions to the proposed and final order are received by the Department, the Department’s Director or designee must consider the exceptions and serve a final order, or request a written response or a revised proposed and final order from the administrative law judge.

(14) Final orders, including dismissal and default orders, are subject to reconsideration or rehearing petitions within 60 calendar days after the final order is served, pursuant to OAR 137-003-0675.

(15) All final orders are subject to judicial review under ORS 183.482 in the Court of Appeals.

History

Statutory/Other Authority: ORS 181A.195, 181A.200 & 409.050
Statutes/Other Implemented: ORS 181A.195, ORS 443.008, 181A.200, 183.341 & 409.010
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 32-2018, amend filed 11/28/2018, effective 12/01/2018
DHSD 12-2018, temporary amend filed 06/29/2018, effective 07/01/2018 through 12/27/2018
DHSD 4-2016, f. 6-9-16, cert. ef. 6-15-16
DHSD 2-2016(Temp), f. & cert. ef.1-14-16 thru 7-11-16
DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08
DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08

Or. Admin. R. 407-007-0090 Record Keeping, Confidentiality

(1) All LEDS reports are confidential and the Department shall maintain the reports in accordance with applicable OSP requirements in ORS chapter 181 and OAR chapter 257, division 15.

(a) LEDS reports may only be shared with approved Department authorized designees if there is a need to know consistent with these rules.

(b) The LEDS report and any photocopies may not be shown or given to the SI.

(2) The results of a national criminal records check provided by the FBI or through OSP are confidential and may not be disseminated by the Department except:

(a) If a fingerprint-based criminal records check was conducted on the SI, the SI shall be provided a copy of the results upon request.

(b) During the contested case hearing, the Department shall provide state and national criminal offender information as exhibits.

(3) All completed criminal records check requests, other criminal history information, and other records collected or developed during the criminal records check process shall be kept confidential and disseminated only on a need-to-know basis.

(4) The Department shall retain and destroy all criminal records check documents pursuant to federal law and records retention schedules published by Oregon State Archives.

History

Statutory/Other Authority: ORS 181A.195, 181A.200 & 409.050
Statutes/Other Implemented: ORS 181A.195, 181A.200 & 409.010
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 4-2016, f. 6-9-16, cert. ef. 6-15-16
DHSD 2-2016(Temp), f. & cert. ef.1-14-16 thru 7-11-16
DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08
DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08

Or. Admin. R. 407-007-0100 Variances

(1) The outcome of a fitness determination made pursuant to these rules is not subject to variance. Challenges to fitness determinations may only be made through contested case hearing rights set forth in these rules or alternative options available to Department employees.

(2) The Department may grant a variance based upon a demonstration by the Department program area or work unit that the variance would not pose a significant risk to the Department, its clients, or vulnerable individuals.

(3) The program office or work unit requesting a variance shall submit, in writing, an application to the BCU that contains the following:

(a) The section of the rule from which the variance is sought;

(b) The reason for the proposed variance;

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought; and

(e) An explanation on how the safety and well-being of the Department or affected individuals will be ensured during the time the variance period is in effect.

(4) The Assistant Director or designee for the Department’s Administrative Services Division shall approve or deny the request for a variance.

(5) The Department shall notify the program office or work unit of the decision. This notice shall be sent within 30 calendar days of the receipt of the request by the Department with a copy to other relevant divisions of the Department.

(6) Appeal of the denial of a variance request shall be made in writing to the Department’s Director or designee, whose decision shall be final.

(7) The duration of the variance shall be determined by the Department’s Director or designee.

(8) The Department program office or work unit may implement a variance only after receipt of written approval from the Department.

(9) Granting a variance does not set a precedent for subsequent requests for variances.

History

Statutory/Other Authority: ORS 181.537 & 409.050
Statutes/Other Implemented: ORS 181.537 & 409.010
DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08
DHSD 3-2008(Temp), f. & cert. ef. 5-22-08 thru 11-17-08

Or. Admin. R. 407-007-0200 Purpose and Scope

(1) The purpose of these rules, OAR 407-007-0200 to 407-007-0370, is to supplement OAR 125-007-0200 to 125-007-0330 with guidelines and requirements specific to background checks for Oregon Department of Human Services (Department or ODHS) and Oregon Health Authority (Authority) subject individuals (SIs). These rules provide for the reasonable screening under ORS 181A.195, 181A.200, 409.027, and 413.036 of SIs to determine if they have a history of specific criminal or abusive behavior identified in federal or state law or rules such that they should not be allowed to work, volunteer, be employed, reside, or otherwise perform in positions covered by these rules.

(2) These rules apply to evaluating potentially disqualifying convictions and conditions of an SI when conducting fitness determinations based upon such information. The fact that an SI is approved does not guarantee employment or placement. These rules do not apply to individuals subject to OAR 407-007-0000 to 407-007-0100 (ODHS Employees, Volunteers, and Contractors) or 407-007-0400 to 407-007-0460 (Abuse Check Rules for Department Employees and Volunteers).

(3) Providers for the Department and the Authority are subject to criminal records and abuse checks. The Authority authorizes the Department to act on its behalf in carrying out criminal and abuse checks associated with programs or activities administered by the Authority. References in these rules to the Department or Authority shall be construed to be references to either or both agencies.

History

Statutory/Other Authority: ORS 181A.195, 181A.200, 183.459, 409.025, 409.027, 409.050, 410.020, 411.060, 411.122, 413.036, 418.016, 418.640, 441.055, 443.730, 443.735 & 678.153
Statutes/Other Implemented: ORS 181A.195, 181A.200, 183.459, 409.025, 409.027, 411.060, 411.122, 413.036, 409.010 & 443.004
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 5-2016, f. 6-10-16, cert. ef. 6-15-16
DHSD 1-2016(Temp), f. & cert. ef. 1-14-16 thru 7-11-16
DHSD 3-2013, f. & cert. ef. 8-1-13
DHSD 4-2012, f. & cert. ef. 8-1-12
DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12
DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11
DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11
DHSD 1-2011(Temp), f. & cert. ef. 4-15-11 thru 10-11-11
DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10
DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2009, f. & cert. ef. 10-1-09
DHSD 2-2009, f. & cert. ef. 4-1-09
DHSD 10-2008, f. 12-26-08, cert. ef. 1-1-09
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07, Renumbered from 410-007-0200
OMAP 8-2004, f. 2-26-04, cert. ef. 3-1-04

Or. Admin. R. 407-007-0210 Temporary rule language in effect until 12/01/2026. Definitions

OAR 125-007-0210 and 407-007-0010 include definitions for words and terms used in OAR chapter 407, division 007. The following definitions apply specifically to OAR 407-007-0200 to 407-007-0370:

(1) “Appointing authority” means an individual designated by the qualified entity (QE) who is responsible for appointing QE designees (QEDs). Examples include but are not limited to human resources staff with the authority to offer and terminate employment, a business owner, a member of the board of directors, a director, or a program administrator.

(2) “Credible evidence” means available facts, when viewed objectively with the surrounding circumstances, would cause a reasonable person to believe that an event has occurred.

(3) “Good Standing” means the SI is in an approved status on the registry (see OAR 407-007-0600 to 407-007-0640) and may continue to work without active supervision (see OAR 407-007-0315(7)) in an approved status in all any current positions listed for the SI.

(4) “Ineligible” means BCU has determined that an SI has one or more convictions that prohibit the SI from holding the position listed in the background check request. Ineligibility is due to either the SI being subject to:

(a) ORS 443.004 and either OAR 407-007-0275 or 407-007-0277; or

(b) A federal law or regulation that includes mandatory exclusions.

(5) “Mandatory exclusion” a conviction or condition from a federal law, regulation or directive that would prohibit the SI from holding the position listed in the background check request.

(6) “Portability” means the ability of an SI to use one approved background check for a defined period of time for immediate hirability for a position offered by a QE within a group as determined by the Department. See OAR 407-007-0600 to 407-007-0640.

(7) “Potentially disqualifying abuse” means abuse that is considered potentially disqualifying in a background check pursuant to OAR 407-007-0290(11). If formal review or appeal rights are offered to the alleged perpetrator (SI), BCU may consider the abuse as potentially disqualifying after these rights are completed or timed out.

(8) “Proctor foster parent” means an individual who is an applicant for certification or recertification of a proctor foster home by a child-caring agency pursuant to OAR 419-440-0010 to 419-440-0210.

(9) “Qualified entity (QE)” means a community mental health or developmental disability program, local health department, or an individual, business, or organization, whether public, private, for-profit, nonprofit, or voluntary, that provides care, including a business or organization that licenses, certifies, or registers others to provide care (see ORS 181A.200).

(10) “QE designee (QED)” means an approved SI appointed by the QE’s appointing authority to handle background checks on behalf of the QE.

(11) “QE Initiator (QEI)” means an approved SI to whom BCU has granted access to BCU’ online background check system for one QE for the purpose of entering background check request data.

(12) “Subject individual (SI)” means an individual on whom BCU may conduct a criminal records check or an abuse check or both, and from whom BCU may require fingerprints for the purpose of conducting a national criminal records check.

(a) An SI includes any of the following:

(A) An individual who is licensed, certified, registered, or otherwise regulated or authorized for payment by the Department or Authority and who provides care.

(B) An employee, contractor, temporary worker, or volunteer who provides care or has direct contact with clients, client information, or client funds within or on behalf of any entity or agency licensed, certified, registered, or otherwise regulated by the Department or Authority.

(C) Any individual who is paid directly or indirectly with public funds who has or will have direct contact with recipients of:

(i) Services within an adult foster home (defined in ORS 443.705); or

(ii) Services within a residential facility (defined in ORS 443.400).

(D) Any individual secured by any residential care or assisted living facility licensed by the Department in accordance with OAR chapter 411 division 54 through the services of a personnel services or staffing agency who works and provides care or has direct contact with clients, client information, or client funds.

(E) Any individual secured by any residential care or assisted living facility licensed by the Department in accordance with OAR chapter 411 division 85 through the services of a personnel services or staffing agency who works and provides care or has direct contact with clients, client information, or client funds.

(F) Except as excluded in section (12)(b)(C) and (D) of this rule, an individual who lives in a facility that is licensed, certified, registered, or otherwise regulated by the Department to provide care. The position of this SI includes but is not limited to resident manager, household member, boarder, or tenant.

(G) Any referral agent, and any employee of a referral agent of a long term care referral entity pursuant to OAR 411-058-0000 to 411-058-0100 who comes into direct contact with clients.

(H) For child foster homes licensed by the Department’s Developmental Disabilities (DD) programs, or child foster or adoptive homes governed by OAR chapter 419, division 400:

(i) A foster parent or proctor foster parent;

(ii) An adoptive parent applicant or an approved adoptive parent;

(iii) A household member in an adoptive or foster home 18 years of age and over;

(iv) A household member in an adoptive or foster home under 18 years of age if there is reason to believe that the household member may pose a risk to children placed in the home; and

(v) A respite care provider or alternate caregiver.

(I) An individual with contact with clients, client information, or client funds, who is an employee, contractor, or volunteer for a child-caring agency governed by OAR chapter 419 division 400; an In-Home Safety and Reunification Services (ISRS) program; a Strengthening, Preserving and Reunifying Families (SPRF) provider; or a system of care contractor providing child welfare services pursuant to ORS chapter 418.

(J) A homecare worker as defined in ORS 410.600, a personal support worker as defined in ORS 410.600, a personal care services provider, or an independent provider employed by a Department or Authority client who provides care to the client if the Department or Authority helps pay for the services.

(K) An individual subject to ORS 475 and OAR 333-333-4100, including:

(i) Any person identified as an applicant on a worker permit or license application under OAR chapter 333, division 333; or

(ii) Any licensee or work permit holder who is applying for a renewal under OAR chapter 333, division 333.

(L) An appointing authority, QED, or QEI associated with any entity or agency licensed, certified, registered, otherwise regulated by the Department, or subject to these rules.

(M) An individual providing on the job certified nursing assistant classes to staff within a long term care facility.

(N) A student enrolled in a Board of Nursing approved nursing assistant training program in which the instruction and training occurs solely in a nursing facility.

(O) Except for those excluded under section (12)(b)(B), a student or intern who provides care or has direct contact with clients, client information, or client funds within or on behalf of a QE.

(P) Any individual associated with a room and board facility pursuant to OAR chapter 411, division 68, including:

(i) Any registered operator or registration applicant; or

(ii) All persons intending to work in, or currently working in a room and board facility, including, but not limited to, tenant managers, including trainees, and licensed healthcare workers when employed by or contracted with the registrant or the room and board facility.

(Q) An employee providing care to clients of the Department’s Aging and People with Disabilities (APD) programs who works for an in-home care agency as defined by ORS 443.305 which has enrolled to deliver Medicaid funded services as described in OAR 411-033-0000 to 411-033 to 0030 for Department clients.

(R) Any individual who is required to complete a background check pursuant to Department or Authority program rules, if the requirement is within the Department or Authority’s statutory authority. Specific statutory authority or reference to these rules and who is subject to a background check must be specified in the program rules. Whether hiring on a preliminary basis, restricted approval, or how often a recheck is needed may also be specified in the program rules. The exceptions in section (12)(b) do not apply to these SIs.

(S) Any individual who is required to complete a background check pursuant to a contract with the Department or Authority to provide care to vulnerable individuals, if the requirement is within the Department or Authority’s statutory authority. Specific statutory authority or reference to these rules and the positions under the contract subject to a background check must be specified in the contract. Whether hiring on a preliminary basis, restricted approval, or how often a recheck is needed may also be specified in the contract. The exceptions in section (12)(b) do not apply to these SIs.

(b) An SI does not include:

(A) Any individual under 16 years of age.

(B) A student or intern in a clinical placement at a clinical training setting subject to administrative rules implemented under ORS 413.435 and OAR 409-030-0100 to 409-030-0250.

(C) Department, Authority, or QE clients. The only circumstance in which BCU allows a check to be performed on a client pursuant to this paragraph is if the client falls within the definition of “subject individual” as listed in sections (12)(a)(A)-(E) and (12)(a)(G)-(S) of this rule, or if the facility is dually licensed for different populations of vulnerable individuals.

(D) Individuals required to complete a background check through the Central Background Registry under the Office of Child Care of the Oregon Department of Education (known as the Department of Education, Early Learning Division effective 7/1/2023).

(E) Volunteers providing any care or services for a QE’s special event lasting no more than 2 weeks whose access to clients is no more than three days within the two-week period. These volunteers must always be actively supervised in accordance with OAR 407-007-0315 and have no unsupervised contact with clients.

(F) Individuals employed by a private business that provides services to clients and the general public and is not regulated by the Department or Authority.

(G) Individuals employed by a business that provides appliance or structural repair for clients and the general public and who are temporarily providing these services in a licensed or certified QE. The QE must ensure active supervision of these individuals while on QE property and the QE may not allow unsupervised contact with QE clients or residents. This exclusion does not apply to a business that receives funds from the Department or Authority for care provided by an employee of the business.

(H) Individuals employed by a private business in which a client of the Department or Authority is working as part of a Department- or Authority-sponsored employment service program. This exclusion does not apply to an employee of a business that receives funds from the Department or Authority for care provided by the employee.

(I) Employees, contractors, students, interns, and volunteers working in hospitals, ambulatory surgical centers, outpatient renal dialysis facilities, extended stay centers, and freestanding birthing centers, as defined in ORS 442.015, and special inpatient care facilities as defined by the Authority in administrative rule.

(J) Employees, contractors, students, interns, and volunteers working in home health agencies, in-home care agencies, or hospice programs as defined by the Authority in administrative rule.

(K) Volunteers, who are not under the direction and control of a licensed, certified, registered, or otherwise regulated QE.

(L) Individuals employed or volunteering in a Medicare-certified health care business which is not subject to licensure or certification by the State of Oregon.

(M) Individuals working in restaurants or at public swimming pools.

(N) Hemodialysis technicians.

(O) Employees, contractors, temporary workers, or volunteers who provide care, or have direct contact with clients, client information, or client funds of an alcohol and drug program that is certified, licensed, or approved by the Authority’s Health Systems Division to provide prevention, evaluation, or treatment services. This exclusion does not apply to programs specifically required by other Authority program rules to conduct criminal records checks in accordance with these rules.

(P) Individuals working for a transit service provider which conducts background checks pursuant to ORS 267.237.

(Q) Emergency medical technicians and first responders certified by the Authority’s Emergency Medical Services and Trauma Systems program.

(R) Employees, contractors, temporary workers, or volunteers of continuing care retirement communities registered under OAR chapter 411, division 67.

(S) Individuals hired by or on behalf of a resident in a QE to provide care privately to the resident.

(T) An employee, contractor, temporary worker, or volunteer who provides care or has direct contact with specific clients, client information, or client funds within or on behalf of any entity or agency licensed, certified, registered, or otherwise regulated by the Department or Authority, where the clients served permanently reside in another state.

(U) An employee, volunteer or contractor subject to OAR 407-007-0000 to 407-007-0100, including individuals working or placed in a residential facility owned or operated by the Department or the Authority.

History

Statutory/Other Authority: ORS 181A.200, 409.027, 409.050, ORS 475A.486 & Or. Law 2026 ch. 59 (2026 HB 4115)
Statutes/Other Implemented: ORS 181A.200, 409.027, ORS 181A.195, 443.004, ORS 418.248, ORS 475A.486 & Or. Law 2026 ch. 59 (2026 HB 4115)
DHS 1-2026, temporary amend filed 05/29/2026, effective 06/05/2026 through 12/01/2026
DHS 1-2023, amend filed 01/27/2023, effective 02/01/2023
DHS 31-2022, temporary amend filed 09/09/2022, effective 09/09/2022 through 02/27/2023
DHS 30-2022, temporary amend filed 08/31/2022, effective 09/01/2022 through 02/27/2023
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 31-2018, amend filed 11/28/2018, effective 12/01/2018
DHSD 13-2018, temporary amend filed 06/29/2018, effective 07/01/2018 through 12/27/2018
DHSD 10-2017, f. & cert. ef. 9-1-17
DHSD 6-2017, f. 6-30-17, cert. ef. 7-1-17
DHSD 3-2017(Temp), f. & cert. ef. 3-15-17 thru 9-10-17
DHSD 9-2016, f. & cert. ef. 12-1-16
DHSD 6-2016(Temp), f. & cert. ef. 7-1-16 thru 12-27-16
DHSD 5-2016, f. 6-10-16, cert. ef. 6-15-16
DHSD 1-2016(Temp), f. & cert. ef. 1-14-16 thru 7-11-16
DHSD 2-2014, f. & cert. ef. 12-1-14
DHSD 3-2013, f. & cert. ef. 8-1-13
DHSD 1-2013(Temp), f. & cert. ef. 2-5-13 thru 8-2-13
DHSD 4-2012, f. & cert. ef. 8-1-12
DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12
DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11
DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11
DHSD 1-2011(Temp), f. & cert. ef. 4-15-11 thru 10-11-11
DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10
DHSD 8-2010(Temp), f. & cert. ef. 8-12-10 thru 2-7-11
DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2009, f. & cert. ef. 10-1-09
DHSD 2-2009, f. & cert. ef. 4-1-09
DHSD 10-2008, f. 12-26-08, cert. ef. 1-1-09
DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08
DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07, Renumbered from 410-007-0210
OMAP 22-2005, f. & cert. ef. 3-29-05
OMAP 77-2004(Temp), f. & cert. ef. 10-1-04 thru 3-29-05
OMAP 8-2004, f. 2-26-04, cert. ef. 3-1-04

Or. Admin. R. 407-007-0220 Temporary rule language in effect until 12/01/2026. Background Check Required

(1) An SI must have a background check in the following circumstances:

(a) An individual who becomes an SI on or after the effective date of these rules.

(b) The SI changes employers to a different QE.

(c) The individual, whether previously considered an SI or not, changes positions under the same QE, and the new position requires a background check.

(d) The individual, whether previously considered an SI or not, changes Department or Authority-issued licenses, certifications, or registrations, and the license, certification, or registration requires a background check under these rules.

(e) For a student enrolled in a nursing facility nursing assistant training program for employment at the facility, a new background check is required when the student is first enrolled in the training program to be in contact with nursing facility patients, and again if the student becomes an employee at the facility unless the first background check results in good standing in the background check registry and portability pursuant to OAR 407-007-0600 to 407-007-0640.

(f) A background check is required by federal or state laws or regulations, other Department or Authority administrative rules, or by contract with the Department or Authority.

(g) When BCU or the QE has reason to believe that a background check is justified, if allowed by statute or rule. Examples include but are not limited to:

(A) Credible evidence of new potentially disqualifying convictions or conditions. Pursuant to OAR 407-007-0620(6), BCU must either immediately remove an SI's portability, revoke an SI's good standing, or both if BCU receives credible evidence indicating that the SI has new potentially disqualifying convictions or conditions.

(B) A lapse in working or volunteering in a position under the direction and control of the QE but the SI is still considered in the position. For example, an extended period of leave by an SI. The QE determines the need for a background check.

(C) Quality assurance monitoring by the Department or Authority of a previously conducted criminal records check or abuse check.

(2) If the SI is subject to a background check due to involvement with the foster or adoptive placement of a child and:

(a) Is subject to the Interstate Compact on Placement of Children (ORS 417.200 and OAR 413-040-0200 to 413-040-0330), the background check must comply with Interstate Compact requirements.

(b) Is subject to the Inter-County Adoption Act of 2000 (42 USC 14901 et seq.), the background check must comply with federal requirements and ORS 417.262.

(3) If QEs, Department program rules, or Authority program rules require an SI to report any new arrests, charges, or convictions, the QE may determine if personnel action is required if the SI does not report. Personnel action may include a new background check if allowed by statute or rule.

(4) A homecare worker or personal support worker, as defined in ORS 410.600, is subject to section (1) of this rules. However, a homecare worker or personal support worker does not need a new background check when adding new client employers by meeting the following requirements: the homecare worker or personal support worker must have:

(a) A Department background check notice of final fitness determination dated within the recheck period according to Department program rules showing that the homecare worker or personal support worker has been:

(A) Approved;

(B) Approved with restrictions that do not prohibit additional clients; or

(b) The background check notice of final fitness determination lists a worksite of “various,” “various clients,” “statewide,” or similar wording.

(5) A personal care services provider, lifespan respite or other respite care provider, or an independent provider paid with Department or Authority funds is subject to section (1) of this rule. However, an SI in these positions may change or add clients within the same QE, Department, or Authority district without a new background check if the prior, documented criminal records check or abuse check conducted within the previous 24 months through the Department or Authority has been:

(a) Approved;

(b) Approved with restrictions that do not prohibit additional clients; or

(6) Regardless of section (1) of this rule, an individual subject to ORS 475A and OAR 333-333-4100 follows the criminal records check requirements in ORS chapter 475A and OAR 333-333-4100.

(7) If an SI remains with a QE in the same position listed in the background check request and the QE merges with another QE, is sold to another QE, or changes names, the SI does not need a new background check. The changes to the QE may be noted in documentation attached to the notice of fitness determination but do not warrant a new background check.

(8) For a student enrolled in a nursing facility nursing assistant training program for employment at the facility, a new background check is not required at graduation from the training program or at the granting of certification by the Board of Nursing.

(9) The SI on the background check registry in good standing maintained under OAR 407-007-0600 to 407-007-0640 is subject to section (1) of this rule when the SI’s new background check being considered is not for a position that would result in placement on the background check registry maintained under OAR 407-007-0600 to 407-007-0640 if approved.

(10) The restrictions on criminal records checks in this section may exempt an SI from background checks required under section (1) of this rule as determined by the Department pursuant to ORS 443.004(2)(b).

(a) This section applies to an SI subject to ORS 443.004 who is:

(A) An employee of a residential facility or an adult foster home;

(B) Any individual who is paid directly or indirectly with public funds who has or will have contact with a recipient of support services or a resident of an adult foster home or a residential facility; and

(b) The approval of a background check application for an SI subject to this section lasts for three years, effective as of the completion of the SI’s first or renewing background check approval after the implementation of ORS 443.004(2)(b) (Or Law 2026 chapter 59), on June 5, 2026.

(A) Receives credible evidence of a new criminal conviction;

(B) Receives credible evidence of potentially disqualifying abuse ;

(D) Is notified by a QE and an SI has changed position or duties for which there are different criminal records check requirements; or

(E) Determines that it would be burdensome for an SI to wait for a new criminal records check, including but not limited to:

(i) The Department receives credible evidence of a change in circumstances that could positively impact a previous fitness determination;

(ii) The SI is seeking certification, licensure, or some other qualification associated with a position that requires a background check;

(iii) The SI needs a recheck for recredentialing which must be submitted and completed before or by the three-year expiration date of the background check approval

(d) If the Department determines that a new fitness determination is necessary and a new criminal records check is not allowed, the Department may complete a new abuse check and use information from the most recent criminal records check completed on the SI in the Department’s records. An example of when a new fitness determination is necessary, and a new criminal records check is not allowed, is when BCU learns of a new potentially disqualifying condition.

(e) If an SI changes positions while staying with the same QE and the new position is not subject to the registry under OAR 407-007-0600 to 407-007-0640, the QED must document that no new background check may be completed for the new position pursuant to ORS 443.004 and OAR 407-007-0220(10)(b).

(f) If the SI is applying for a position that requires a background check under these rules but is not subject to ORS 443.004, the restrictions in this section do not apply and do not count as criminal records checks towards this section.

(11) Background checks are completed on SIs who otherwise meet the qualifications of the position listed on the background check request, the position description completed by the QE, and the program rules governing the QE and position. A background check may not be used to screen applicants for a position or who do not meet such qualifications.

History

Statutory/Other Authority: ORS 181A.200, ORS 409.027, 409.050 & Or. Law 2026 ch. 59 (2026 HB 4115)
Statutes/Other Implemented: ORS 181A.200, ORS 409.027, ORS 181A.195, 443.004 & Or. Law 2026 ch. 59 (2026 HB 4115)
DHS 1-2026, temporary amend filed 05/29/2026, effective 06/05/2026 through 12/01/2026
DHS 1-2023, amend filed 01/27/2023, effective 02/01/2023
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 5-2016, f. 6-10-16, cert. ef. 6-15-16
DHSD 1-2016(Temp), f. & cert. ef. 1-14-16 thru 7-11-16
DHSD 2-2014, f. & cert. ef. 12-1-14
DHSD 3-2013, f. & cert. ef. 8-1-13
DHSD 4-2012, f. & cert. ef. 8-1-12
DHSD 3-2012(Temp), f. & cert. ef. 4-13-12 thru 8-24-12
DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12
DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11
DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11
DHSD 1-2011(Temp), f. & cert. ef. 4-15-11 thru 10-11-11
DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10
DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2009, f. & cert. ef. 10-1-09
DHSD 2-2009, f. & cert. ef. 4-1-09
DHSD 10-2008, f. 12-26-08, cert. ef. 1-1-09
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07, Renumbered from 410-007-0220
OMAP 22-2005, f. & cert. ef. 3-29-05
OMAP 77-2004(Temp), f. & cert. ef. 10-1-04 thru 3-29-05
OMAP 8-2004, f. 2-26-04, cert. ef. 3-1-04

Or. Admin. R. 407-007-0230 Qualified Entity

(1) A QE and its appointing authority must be approved in writing by the Department or Authority pursuant to these rules in order to appoint a QED. Documentation of a current and valid license, certification, contract, or letter of approval from the Department or Authority are considered proof of approval. Unless specifically indicated otherwise in these rules, all QEs and appointing authorities discussed in these rules are considered approved.

(2) A QE shall ensure the completion of background checks for all SIs who are the QE’s employees, volunteers, or other SIs under the direction or control of the QE.

(3) BCU may allow a QE’s appointing authority or the QED to appoint one or more QEIs based on the needs of the QE and the volume of SIs under the QE.

(4) A QE’s appointing authority shall appoint QEDs as needed to remain in compliance with these rules and shall communicate any changes regarding QEDs or QEIs to BCU. BCU strongly recommends that the QE have at least one QED at any facility where clients are receiving care in order to handle any immediate QED responsibilities, such as removing an SI from work or placement when required.

(5) If for any reason a QE no longer has any QEDs, the QE or appointing authority shall ensure that the confidentiality and security of background check records by immediately providing all background check related documents to BCU or to another QE as determined by BCU.

(6) BCU shall provide QEs with periodic training and on-going technical assistance.

(7) Any decisions made by BCU in regard to these rules are final and may not be overturned by any QE.

History

Statutory/Other Authority: ORS 181A.200, 409.027 & 409.050
Statutes/Other Implemented: ORS 181A.195, 181A.200, 409.010, 409.027 & 443.004
DHSD 5-2016, f. 6-10-16, cert. ef. 6-15-16
DHSD 1-2016(Temp), f. & cert. ef. 1-14-16 thru 7-11-16
DHSD 2-2014, f. & cert. ef. 12-1-14
DHSD 3-2013, f. & cert. ef. 8-1-13
DHSD 4-2012, f. & cert. ef. 8-1-12
DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12
DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11
DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11
DHSD 1-2011(Temp), f. & cert. ef. 4-15-11 thru 10-11-11
DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10
DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2009, f. & cert. ef. 10-1-09
DHSD 2-2009, f. & cert. ef. 4-1-09
DHSD 10-2008, f. 12-26-08, cert. ef. 1-1-09
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07, Renumbered from 410-007-0230
OMAP 22-2005, f. & cert. ef. 3-29-05
OMAP 85-2004(Temp), f. & cert. ef. 11-4-04 thru 3-29-05
OMAP 77-2004(Temp), f. & cert. ef. 10-1-04 thru 3-29-05
OMAP 8-2004, f. 2-26-04, cert. ef. 3-1-04

Or. Admin. R. 407-007-0240 QE Designees and QE Initiators

(1) All requirements in this section must be completed within 90 calendar days. To receive BCU approval, a QED must meet the following requirements:

(a) A QED must be one of the following:

(A) Employed by the agency for which the QED will handle criminal records check information.

(B) Contracted with the QE to perform as a QED.

(C) Employed by another similar QE or a parent QE. For example, an assisted living facility QED may act as QED for another assisted living facility.

(D) The licensee of the QE.

(b) A QED must be an approved SI with a record in CRIMS within the past three years for at least one of the QEs for which the QED will manage background checks.

(A) Competency in computer skills for accessing BCU’s online background check systems, entering data, corresponding via email, and managing background check records online;

(B) Work-related access to a desktop or laptop computer and the internet; and

(d) A QED must complete a certification program and successfully pass any BCU required testing.

(e) An appointing authority must appoint a QED. The applicant QED must complete and submit required documents and information to BCU for processing and registration.

(2) BCU shall deny the individual’s status as a QED if the individual does not meet QED requirements. Once denied, the individual may no longer perform the duties of a QED. There are no exceptions for individuals who fail to meet QED requirements.

(3) An approved QED shall have the following responsibilities:

(a) Demonstrate understanding of and adherence to these rules in all actions pertaining to the background check process.

(b) Act as the Department’s designee in any action pursuant to these rules and the background check process. A QED may not advocate for an SI during any part of the background check process, including contesting a fitness determination.

(c) Ensure that adequate measures are taken to protect the confidentiality of the records and documents required by these rules. A QED may not view criminal offender information. A QED may not view abuse investigation reports and associated abuse investigation exhibits or documents as part of the background check process.

(d) Verify the SI’s identity or ensure that the same verification requirements are understood by each individual responsible for verifying identity. The QE may verify identity at any time during the hiring or placement process up to the submission of the background check request.

(A) If conducting a background check on the SI for the first time or at rehire of the SI, a QED shall verify identity or ensure identity is verified by using methods which include but are not limited to reviewing the SI’s current and valid government-issued photo identification and confirming the information on the photo identification with the SI and with the identifying information included in the background check request and any personnel documents if available.

(B) If an SI is being rechecked for the same QE without any break in placement, service, or employment, review of government-issued photo identification is strongly encouraged. At a minimum, the QED shall verify the SI’s name, current address, and any aliases or previous names, or ensure this information is verified.

(e) If conducting a background check on the SI for the first time or at rehire of the SI, ensure that an SI is not permitted to work, volunteer, reside, or otherwise hold any position covered by these rules before the submission of the background check request to BCU.

(f) Initiate and submit an SI’s background check in BCU’s online system, ensuring completeness and accuracy of information required from the QED. The QED is responsible for monitoring the application for completion by the SI or closing the application if the SI does not complete it.

(g) Know whether an SI may be hired or placed in the position identified in the background check request on a preliminary basis, based on program or Licensing rules, or on federal or state requirements. The QED shall maintain the SI’s status in BCU’s online background check system regarding hiring or placement prior to a final outcome of the background check request. The QED may request that BCU make a preliminary fitness determination requiring a weighing test. The request must be through CRIMS or in writing.

(h) Know whether an SI who is allowed hiring or placement on a preliminary basis is required to be actively supervised or not. If active supervision is required, the QED is responsible for ensuring that active supervision is understood by each individual responsible for providing such supervision over an SI while the background check is pending.

(i) Ensure that if an SI is revoked from working or placement on a preliminary basis, the SI is immediately removed from the position and remains removed until BCU reinstates hired on a preliminary basis or the completion of a final fitness determination allowing the SI to resume the position.

(j) Ensure that the SI has directions to complete a fingerprint capture and monitor the SI’s process in getting the fingerprints taken in a timely manner.

(k) Notify BCU of any changes regarding an SI who still has a background check in process, including but not limited to address or employment status changes.

(L) Monitor the status of background check applications and investigate any delays in processing.

(m) Ensure that the outcome of the background check is followed by the QE and any SI supervisors.

(A) If the background check is closed or withdrawn, the QED must ensure that the SI is immediately removed from the position and is not allowed to start any position with the QE until a new background check is submitted and all background check and program rules requirements have been met.

(B) If the final fitness determination of the background check is approved, the QED must document the hiring of the SI and the permanent hire date in BCU’s online background check system if the SI is subject to OAR 407-007-0600 to 407-007-0640.

(C) If the final fitness determination of the background check is a restricted approval, The QED must ensure that the QE and the SI’s supervisors are aware of the restrictions in writing so that the restrictions may be followed.

(D) If the background check is not approved, the QED must ensure that the SI is immediately removed from the position and is not allowed to start any new position with the QE until a new background check is completed and approved.

(n) Ensure notification of the SI of any needed action. For example, if BCU notifies the QED that the SI needs fingerprints taken, needs to provide BCU more information, or needs a new background check, the QED will ensure the SI is told about the requirement and the deadline for the requirement.

(o) Ensure that documentation required by these rules is processed and maintained in accordance with these rules. The QED shall maintain required documentation in BCU’s online background check system.

(p) Notify BCU immediately if the QED has new a potentially disqualifying conviction or condition.

(4) BCU may change QED status in the following circumstances which include but are not limited to:

(a) When the position with the QE ends or when the QE terminates the appointment. The QE shall notify BCU immediately upon the end of the position or termination of the appointment and BCU shall inactivate QED status.

(b) If a QED fails to comply with responsibilities or fails to continue to meet the requirements for QED status, as applicable. After suspending or revoking the appointment, the QE must immediately notify the BCU. If BCU takes the action to suspend or revoke the appointment, it must immediately notify the QE.

(5) Any changes to QED status are not subject to appeal rights unless the denial or termination results in immediate loss of employment or position. A QED losing employment or position has the same hearing rights as other SIs under these rules.

(6) If a QED leaves employment or position with the QE for any reason, BCU shall inactivate QED status. If the individual finds employment with another QE, BCU shall determine the requirement for reactivation of QED status.

(7) BCU shall review and recertify appointments of QEDs, up to and including a new application, background check, and additional training under the following circumstances:

(a) Every three years; or

(b) At any time BCU has reason to believe the individual no longer meets QED requirements including but not limited to indication of criminal or abusive behavior or noncompliance with these rules.

(8) With BCU approval, QEs may appoint QEIs to enter background check request into BCU’s online background check system. QEIs must:

(a) Be currently approved SIs for the QE;

(b) Possess competency in computer skills for accessing BCU’s online background check system and entering background check records electronically;

(d) Meet other criteria and responsibilities as determined by BCU and the QE.

History

Statutory/Other Authority: ORS 181A.200, 409.027 & 409.050
Statutes/Other Implemented: ORS 181A.195, 181A.200, 409.010, 409.027 & 443.004
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 5-2016, f. 6-10-16, cert. ef. 6-15-16
DHSD 1-2016(Temp), f. & cert. ef. 1-14-16 thru 7-11-16
DHSD 2-2014, f. & cert. ef. 12-1-14
DHSD 3-2013, f. & cert. ef. 8-1-13
DHSD 4-2012, f. & cert. ef. 8-1-12
DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12
DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11
DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11
DHSD 1-2011(Temp), f. & cert. ef. 4-15-11 thru 10-11-11
DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10
DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2009, f. & cert. ef. 10-1-09
DHSD 2-2009, f. & cert. ef. 4-1-09
DHSD 10-2008, f. 12-26-08, cert. ef. 1-1-09
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07, Renumbered from 410-007-0240
OMAP 22-2005, f. & cert. ef. 3-29-05
OMAP 8-2004, f. 2-26-04, cert. ef. 3-1-04

Or. Admin. R. 407-007-0250 Background Check Process

(1) In order to conduct a background check on an SI, BCU must receive authorization from the SI allowing the criminal records check and abuse check to proceed. If the SI refuses to provide authorization for the background check, BCU terminates the background check immediately and the QE may not allow the SI to work, volunteer, be employed, reside, or otherwise perform in positions covered by these rules.

(2) BCU conducts a criminal records check on an SI through LEDS maintained by the Oregon State Police (OSP) and handles criminal offender information in accordance with ORS chapter 181A and the rules adopted thereto (see OAR chapter 125, division 007; and chapter 257, division 15).

(3) If a national criminal records check is necessary, OSP provides BCU results of national criminal records checks conducted pursuant to ORS 181A.195, including fingerprint identification, through the FBI.

(4) The criminal records check may include one or more types of criminal records checks as defined in OAR 407-007-0010. BCU considers the date of the last criminal records check completed before the final fitness determination as the date of the background check’s criminal records check.

(5) BCU conducts abuse checks on an SI using available abuse investigation reports and associated documents.

(6) For SIs subject to ORS 475A and OAR 333-333-4100:

(a) Section (5) of this rule does not apply.

(b) None of the conditions listed in OAR 407-007-0290 are potentially disqualifying.

(7) A QE and SI must use ORCHARDS to request a background check. In accordance with OAR 125-007-0220, the background check request includes the following information regarding an SI:

(a) Legal name and aliases;

(b) Date of birth;

(d) Driver license or identification card information;

(e) Position title and description of duties to be considered;

(f) Indication of the SI’s direct contact with any of the following:

(A) Children (for a child-caring agency governed by OAR chapter 419 division 400, children includes an individual who is under 21 years of age who is residing in or receiving care or services);

(B) Adults;

(D) Confidential information;

(E) Secure Facilities;

(F) Finances or financial records; or

(G) Information Technology Systems.

(g) Worksite location or locations where the SI will be working;

(h) Disclosure of all potentially disqualifying criminal history pursuant to OAR 407-007-0281 and 407-007-0290:

(A) While the SI may provide minimal information to meet this requirement, the Department finds that more details from the SI provides positive information for the weighing test in OAR 407-007-0300. The SI may disclose details of potentially disqualifying arrests, charges, convictions, and any other conditions at a minimum, and may disclose all arrests, charges, and convictions regardless of outcome or when the arrests, charges, or convictions occurred. Disclosure includes any juvenile or adult record of custody, arrests, charges, or the outcome of custody, arrests, or charges against a juvenile or adult.

(B) The disclosed crimes and the dates must reasonably match the SI’s criminal offender information and other criminal history information, as determined by BCU.

(D) The Department may only consider criminal history as allowed in the weighing test, OAR 407-007-0300.

(i) Disclosure of other information to be considered in the event of a weighing test.

(A) The SI may provide mitigating information for BCU to review in a weighing test.

(B) BCU may require the SI to provide other information as needed to conduct the weighing test.

(j) For an SI who is a proctor foster parent:

(A) The SI must provide a release of information allowing the Department to provide the QE with information regarding the open or pending abuse investigations or founded or substantiated allegations of abuse against the SI.

(B) The SI must also disclose:

(i) Any currently open or pending child or adult abuse investigations in which the SI is reported or alleged to be responsible for the abuse;

(ii) Any child or adult abuse investigations with an outcome of founded or substantiated in which the SI is determined to have been responsible for the abuse; and

(iii) Any restraining order or protective orders against the SI.

(i) Information regarding the open or pending abuse investigations in which the SI is a reported or alleged perpetrator.

(ii) Information regarding substantiated allegations of abuse against the SI.

(iii) Confirmation of the SI being certified or licensed by the Department as a child foster home parent.

(8) The background check request must include the following notices to the SI:

(a) A notice regarding disclosure of Social Security number indicating that:

(A) The SI’s disclosure is voluntary; and

(B) The Department requests the Social Security number for the purpose of positively identifying the SI during the criminal records check process.

(b) A notice that the SI may be subject to fingerprinting as part of a criminal records check.

(c) A notice that BCU conducts an abuse check on the SI. Unless required by rule, an SI is not required to disclose any history of potentially disqualifying abuse, but may provide BCU with mitigating or other information.

(d) A notice that the SI has the right to challenge criminal or abuse history through the local source of the information.

(9) Using identifying information submitted in a background check request, BCU conducts an abuse check to determine if an SI has potentially disqualifying abuse. If required by federal law or regulation, the abuse check must include an out of state child abuse check.

(10) BCU conducts an Oregon criminal records check. Using information submitted on the background check request, BCU may obtain criminal offender information from LEDS and may request other criminal history information as needed.

(11) BCU may conduct a fingerprint-based national criminal records check.

(a) A fingerprint-based national criminal records check may be completed under any of the following circumstances:

(A) The SI has been outside Oregon for 60 or more consecutive days during the previous five years.

(B) The criminal offender information from the LEDS check, SI disclosures, or any other criminal history information obtained by BCU indicate there may be criminal records outside of Oregon.

(C) The criminal offender information from the LEDS check, SI disclosures, or any other criminal history information obtained by BCU do not provide enough information to confirm that there are no criminal records outside of Oregon.

(D) The SI has an out-of-state driver license or out-of-state identification card.

(E) BCU or the QE has reason to question the identity of the SI or the information on the criminal record found in LEDS.

(F) A fingerprint-based criminal records check is required by federal or state laws or regulations, other Department or Authority rules, or by contract with the Department or Authority.

(G) The SI is an employee of an agency which the Centers for Medicare and Medicaid Services has designated high risk pursuant to 42 CFR 424.518.

(H) Any SI applying to be or renewing the position with regard to child adoption or children in foster care licensed by the Department or child-caring agencies. Renewing SIs do not need a fingerprint-based criminal records check if BCU has a record of a previous fingerprint-based criminal records checks that is within three years from the date of the current background check request. Applicable SI positions include:

(i) A relative caregiver, foster parent, proctor foster parent, or adoptive parent in Oregon;

(ii) An adult household member in an adoptive or child foster home 18 years of age and over;

(iii) A household member in an adoptive or child foster home under 18 years of age if there is reason to believe that the household member may pose a risk to children placed in the home; or

(iv) A respite care provider or alternate caregiver in an adoptive or child foster home.

(I) BCU has reason to believe that fingerprints are needed to make a final fitness determination.

(b) If an SI is under the age of 18 years old, BCU must request a fingerprint capture in accordance with OAR 125-007-0220(3).

(c) The SI must complete and submit a fingerprint capture when requested by BCU within the time frame indicated in a written notice. BCU sends the request to the QE and the QED must notify the SI. BCU may require new fingerprint capture and its submission if previous fingerprint captures result in a rejection by OSP or the FBI.

(12) For SIs who are subject to the Adam Walsh Act of 2006, or SIs who are employees of qualified entities which are subject to the federal 2018 Family First Prevention Services Act and which receive title IV-E funds, a background check must include:

(a) A fingerprint-based national criminal records check;

(b) In any state where the SI has resided for 60 or more consecutive days during the previous five years, an abuse check of child abuse and neglect registries.

(13) BCU requires that due diligence be exercised in complying with national criminal records check requirements including fingerprints. However, if BCU determines that an SI is unable to submit fingerprints, BCU must document the circumstances that led to the decision to waive fingerprinting and proceed with obtaining other criminal history information from states based on SI’s residential history and disclosures in lieu of a fingerprint-based criminal records check as required in this rule. A fingerprint-based national criminal records may be waived due to inability to submit fingerprints unless fingerprints are required by state or federal laws or regulations. Reasons for inability to submit fingerprints include but are not limited to:

(a) A physical condition in which all the SI’s fingerprints are illegible or missing, or which makes the capture of fingerprints impossible;

(b) A mental or psychological condition which makes the capture of fingerprints impossible;

(14) BCU may also research other criminal history information from other states instead of or in addition to a national criminal records check. Reasons for such research include but are not limited to:

(a) When BCU has reason to believe that out-of-state criminal records may exist and a national criminal records check cannot be accomplished.

(b) When BCU has been unable to complete a national criminal records check due to illegible fingerprints.

(c) When the national criminal records check results show incomplete information about charges or criminal records without final disposition.

(d) When there is indication of residency or criminal records in a state that does not submit all criminal records to the FBI.

(e) When, based on available information, BCU has reason to believe that other criminal history information regarding the SI is present in another state.

(15) The criminal records check may include one or both types of criminal records checks as defined in OAR 407-007-0010.

(16) In order to complete a fitness determination, BCU may conduct further research regarding criminal history and abuse history through local jurisdiction courts, Department records, or other resources.

(17) In order to complete a background check and fitness determination, BCU may require additional information from the SI including but not limited to additional criminal, judicial, other background information, or proof of identity.

(18) If BCU determines that an SI has additional potentially disqualifying convictions or conditions which have occurred after receiving the background check request, BCU must provide the SI, if available, the opportunity to disclose any information required in section (6) of this rule before completion of the final fitness determination.

(19) BCU may conduct a background check in situations of imminent danger on SIs who have been background checked under these rules and who are currently with the same QE.

(a) If the Department or Authority determines there is indication of criminal or abusive behavior that could more likely than not pose an immediate risk to vulnerable individuals, BCU may conduct a new criminal records check on an SI without the completion of a new background check request if allowed by statute or law.

(b) If BCU determines that a fitness determination based on the new background check would be adverse to the SI, BCU may provide the SI, if available, the opportunity to disclose any information required in section (7) of this rule before completion of the final fitness determination.

(20) If the criminal records check process results in an incomplete fitness determination as described in OAR 407-007-0320(2)(d), BCU closes the criminal records check. When a criminal records check results in an incomplete fitness determination, the SI must not be allowed to work, volunteer, be employed, or otherwise perform in the position listed on the criminal records check request. An incomplete fitness determination results in immediate termination, dismissal, or removal of the SI.

(21) BCU must document criminal records checks conducted under this rule.

History

Statutory/Other Authority: ORS 181A.200, 409.027 & 409.050
Statutes/Other Implemented: ORS 181A.200, ORS 181A.195, 409.010, 418.248 & 443.004
DHS 1-2023, amend filed 01/27/2023, effective 02/01/2023
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 31-2018, amend filed 11/28/2018, effective 12/01/2018
DHSD 27-2018, temporary amend filed 09/27/2018, effective 09/27/2018 through 12/27/2018
DHSD 26-2018, temporary amend filed 09/20/2018, effective 09/20/2018 through 12/27/2018
DHSD 10-2017, f. & cert. ef. 9-1-17
DHSD 6-2017, f. 6-30-17, cert. ef. 7-1-17
DHSD 3-2017(Temp), f. & cert. ef. 3-15-17 thru 9-10-17
DHSD 9-2016, f. & cert. ef. 12-1-16
DHSD 6-2016(Temp), f. & cert. ef. 7-1-16 thru 12-27-16
DHSD 5-2016, f. 6-10-16, cert. ef. 6-15-16
DHSD 1-2016(Temp), f. & cert. ef. 1-14-16 thru 7-11-16
DHSD 2-2014, f. & cert. ef. 12-1-14
DHSD 3-2013, f. & cert. ef. 8-1-13
DHSD 4-2012, f. & cert. ef. 8-1-12
DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12
DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11
DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11
DHSD 1-2011(Temp), f. & cert. ef. 4-15-11 thru 10-11-11
DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10
DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2009, f. & cert. ef. 10-1-09
DHSD 2-2009, f. & cert. ef. 4-1-09
DHSD 10-2008, f. 12-26-08, cert. ef. 1-1-09
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07, Renumbered from 410-007-0250
OMAP 22-2005, f. & cert. ef. 3-29-05
OMAP 8-2004, f. 2-26-04, cert. ef. 3-1-04

Or. Admin. R. 407-007-0275 Convictions Under ORS 443.004 Resulting in Ineligibility for Aging and People with Disabilities Program and Developmental Disabilities Program SIs

(1) This rule applies to an SI who:

(a) Works with clients receiving services through programs and agencies certified, licensed or otherwise regulated by the Department’s Office of Developmental Disabilities (DD) Services.

(b) Works with clients of the Department’s APD programs and who is:

(A) An individual who is paid directly or indirectly with public funds who has or will have contact with recipients of services within:

(i) An adult foster home (defined in ORS 443.705); or

(ii) A residential facility (defined in ORS 443.400).

(B) Any direct care staff secured by any residential care or assisted living facility through the services of a personnel services or staffing agency and the direct care staff works in the facility.

(C) A homecare worker as defined in ORS 410.600, a personal support worker as defined in ORS 410.600, a personal care services provider, or an independent provider employed by a Department client who provides care to the client if the Department helps pay for the services.

(D) An employee providing care to the Department’s APD program clients who works for an in-home care agency as defined by ORS 443.305 which has enrolled to deliver Medicaid funded services as described in OAR 411-033-0000 to 411-033 to 0030 for Department clients.

(E) An individual in a position specified as being subject in relevant Oregon statutes or Oregon administrative rules.

(2) If BCU determines that an individual subject to this rule has a conviction listed in ORS 443.004, BCU must all make the determination of ineligible due to ORS 443.004. Under OAR 125-007-0260, this determination is considered an incomplete fitness determination. A fitness determination with a weighing test is not required regardless of any other potentially disqualifying convictions and conditions the SI has. BCU must provide notice of ineligibility due to ORS 443.004 to the individual.

(3) An individual subject to this rule who is an employee and hired prior to July 28, 2009 is exempt from section (2) of this rule provided that the employee remains working for the same employer after July 28, 2009. The SI may transfer or promote to other positions with this same employer and remain exempt from section (2) of this rule. This exemption is not applicable to licensees. In this context:

(a) For a homecare worker as defined in ORS 410.600, a personal support worker as defined in ORS 410.600, a personal care services provider, or an independent provider employed by a Department client, the employer of record is the Department unless restricted to one QE or client by a restricted approval under OAR 407-007-0320.

(b) For adult foster homes and child foster homes, the SI may change jobs between homes throughout Oregon unless restricted to one QE or home by a restricted approval under OAR 407-007-0320.

(c) If the SI works at a QE facility or agency that has a parent company or corporation, the SI may work at any QE facility or agency under the parent company or corporation.

(d) For all other SIs, the employer is a QE.

(4) If an individual subject to this rule is grandfathered under section (3) of this rule or is not found ineligible due to ORS 443.004, the individual is subject to a fitness determination under OAR 125-007-0260 and 407-007-0320 for any other potentially disqualifying convictions or conditions in OAR 407-007-0281 and 407-007-0290. The original one or more convictions that led to grandfathering could be used as potentially disqualifying and in a weighing test only if there was a repetition of behavior shown in criminal history subsequent to the grandfathering convictions.

(5) A determination of ineligible due to ORS 443.004 is not subject to appeal rights under OAR 125-007-0300, 407-007-0330, or 943-007-0501.

History

Statutory/Other Authority: ORS 181A.195 & 409.050
Statutes/Other Implemented: ORS 181A.195 & 443.004
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 5-2016, f. 6-10-16, cert. ef. 6-15-16
DHSD 1-2016(Temp), f. & cert. ef. 1-14-16 thru 7-11-16
DHSD 2-2014, f. & cert. ef. 12-1-14
DHSD 3-2013, f. & cert. ef. 8-1-13
DHSD 4-2012, f. & cert. ef. 8-1-12
DHSD 3-2012(Temp), f. & cert. ef. 4-13-12 thru 8-24-12
DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12
DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10
DHSD 3-2010(Temp), f. & cert. ef. 5-5-10 thru 10-31-10

Or. Admin. R. 407-007-0277 Convictions Under ORS 443.004 Resulting in Ineligibility for Mental Health or Alcohol and Drug Program SIs

(1) This rule applies to subject individuals who are mental health or substance abuse treatment providers defined under ORS 443.004(8).

(2) If BCU determines that an individual is subject to this rule and has a conviction listed in ORS 443.004(5), BCU shall make the determination of “Ineligible due to ORS 443.004.” Under OAR 125-007-0260, this determination is considered an incomplete fitness determination. A fitness determination with a weighing test is not required regardless of any other potentially disqualifying convictions and conditions the SI has. BCU shall provide notice of ineligibility due to ORS 443.004 to the individual.

(a) For a personal support worker as defined in ORS 410.600, employed by an Authority client, the employer of record is the Authority unless restricted to one QE or client by a restricted approval under OAR 407-007-0320.

(b) For adult foster homes, the SI may change jobs between homes throughout Oregon unless restricted to one QE or home by a restricted approval under OAR 407-007-0320.

(c) If the SI works at a QE facility or agency that has a parent company or corporation, the SI may work at any QE facility or agency under the parent company or corporation.

(d) For all other Sis, the employer is a QE.

(4) If an individual subject to this rule is grandfathered under section (3) of this rule or is not found Ineligible due to ORS 443.004, the individual is subject to a fitness determination under OAR 125-007-0260 and 407-007-0320 for any other potentially disqualifying convictions or conditions in OAR 407-007-0281 and 407-007-0290. The original one or more convictions that led to grandfathering could be used as potentially disqualifying and in a weighing test only if there was a repetition of behavior shown in criminal history subsequent to the grandfathering convictions.

(5) A determination of “Ineligible due to ORS 443.004” is not subject to appeal rights under OAR 125-007-0300 or 943-007-0501.

History

Statutory/Other Authority: ORS 181A.195 & 409.050
Statutes/Other Implemented: ORS 181A.195 & 443.004
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 5-2016, f. 6-10-16, cert. ef. 6-15-16
DHSD 1-2016(Temp), f. & cert. ef. 1-14-16 thru 7-11-16
DHSD 2-2014, f. & cert. ef. 12-1-14
DHSD 3-2013, f. & cert. ef. 8-1-13
DHSD 4-2012, f. & cert. ef. 8-1-12
DHSD 3-2012(Temp), f. & cert. ef. 4-13-12 thru 8-24-12

Or. Admin. R. 407-007-0279 Federal Mandatory Exclusions

(1) Mandatory exclusions under 42 USC 1320a-7(a) (Exclusion of certain individuals and entities from participation in Medicare and State health programs) may result in ineligibility for an SI if the convictions or conditions meet certain time frames or criteria in 42 USC 1320a-7(c).

(a) Section (1) of this rule applies to an SI who is or seeks to be:

(A) A home care worker or personal support worker as defined in ORS 410.600; or

(B) Works for or seeks to work for:

(i) A residential facility as defined in ORS 443.400 that receives Medicare or state health care funds;

(ii) An in-home care agency as defined in ORS 443.005 that receives Medicare or state health care funds;

(iii) A home health agency as defined in ORS 443.005 that receives Medicare or state health care funds;

(iv) A nursing facility licensed by the Department in accordance with OAR chapter 411 division 85;

(v) An assisted living facility or a residential care facility licensed by the Department in accordance with OAR chapter 411 division 54;

(vi) A personnel or staffing agency providing staff to a nursing facility, assisted living facility, or residential care facility licensed by the Department as listed in this subsection;

(vii) An adult foster home licensed by the Department or Authority, or licensed locally under the direction of the Department or Authority.

(viii) Any other QE determined by the Department or Authority to have a federal requirement for an OIG check.

(b) Indication that an individual has an exclusion can be determined by searching the OIG’s List of Excluded Individuals. This exclusion list is available to QEDs when initiating and before submitting background check requests through ORCHARDS.

(A) The QED withdraws the background check application before submitting it because the SI is not elegible for the position; or

(B) BCU must make the determination of ineligibility due to mandatory exclusion.

(d) Convictions or conditions requiring mandatory exclusion include but are not limited to:

(A) Convictions related to the delivery of Medicare or State health care program services.

(B) Convictions related to the abuse of a client or patient.

(D) Felony convictions related to the manufacture, delivery, prescription or dispensing of a controlled substance.

(e) When checking for a background check application, a QED or BCU can consider an SI has having a mandatory exclusion if the SI is verified using his or her Social Security Number. Unless the mandatory exclusion has been rescinded under federal directive and the SI is no longer showing on the Office of the Inspector General’s (OIG’s) Exclusion list, an SI remains ineligible for the following periods of time:

(A) The minimum period of exclusion is not less than five years from the date of conviction;

(B) If the SI’s mandatory exclusion is based on a conviction occurring on or after August 5, 1997 and the SI has on one previous occasion one or more convictions which are also mandatory exclusions, the minimum period of exclusion is not less than 10 years from the date of conviction; or

(C) If the SI’s mandatory exclusion is based on a conviction occurring on or after August 5, 1997 and the SI has on two or more previous occasions one or more convictions which are also mandatory exclusions, the minimum period of exclusion is permanent.

(f) Under OAR 125-007-0260(2)(d), the determination of ineligibility due to mandatory exclusion is considered an incomplete fitness determination. A fitness determination with a weighing test is not required regardless of any other potentially disqualifying convictions and conditions the SI has. When a background check results in an incomplete fitness determination, the SI shall not be allowed to work, volunteer, be employed, or otherwise perform in the position listed on the background check request. An incomplete fitness determination must result in immediate termination, dismissal, or removal of the SI.

(g) A determination of ineligibility due to mandatory exclusion is subject to appeal rights only if allowed under 42 UCS 1320a-7(g).

(h) If the SI no longer appears on the OIG’s List of Excluded Individuals, the SI is subject to a fitness determination under OAR 125-007-0260 and 407-007-0320.

(2) Convictions and conditions under 42 USC 12645g (Criminal history checks under the National and Community Service State Grant Program) result ineligibility for an SI.

(a) Section (2) of this rule applies to an SI who works or seeks to work as an employee, volunteer, or contractor under the National and Community Service Act of 1990 as amended by the Serve America Act, including participants and employees in:

(A) Americorps;

(B) Foster Grandparents;

(D) Any other programs funded under national service laws.

(b) If BCU determines that an individual is subject to this rule and has an exclusion listed in 42 USC 12645g, BCU must make the determination of ineligibility due to mandatory exclusion. Exclusions include:

(A) Listing on, or requirement to be listed on, a sex offender registry;

(B) Conviction for murder.

(D) False statement by the SI in connection with criminal history disclosure, specifically intentionally providing false information impacting the ability to conduct the background check, such as:

(i) A false name;

(ii) A government-issued identification belonging to another person;

(iii) A false identification; or

(iv) Fingerprints of another person.

(c) Under OAR 125-007-0260(2)(d), a determination of ineligibility due to mandatory exclusion is considered an incomplete fitness determination. A fitness determination with a weighing test is not required regardless of whether the SI has any other potentially disqualifying convictions and conditions. When a background check results in an incomplete fitness determination, the SI must not be allowed to work, volunteer, be employed, or otherwise perform in the position listed on the background check request. An incomplete fitness determination must result in immediate termination, dismissal, or removal of the SI.

(d) A determination of ineligibility due to mandatory exclusion is not subject to appeal rights under OAR 125-007-0300, 407-007-0330, or 943-007-0501.

(3) Prohibitions under 42 USC 671(a)(20) under the State Plan for Foster Care and Adoption Assistance result in ineligibility for an SI.

(a) Section (3) of this rule applies to the following SIs:

(A) An SI who is an employee of a QE which is subject to Section 471(a)(20)(D) of the federal 2018 Family First Prevention Services Act and which receives title IV-E funds; and

(B) For child foster homes licensed by the Department’s DD programs, or child foster or adoptive homes governed by OAR chapter 419 division 400 and the federal 2006 Adam Walsh Act:

(i) A foster parent or proctor foster parent;

(ii) An adoptive parent applicant or an approved adoptive parent;

(iii) A household member in an adoptive or foster home 18 years of age and over;

(iv) A household member in an adoptive or foster home under 18 years of age if there is reason to believe that the household member may pose a risk to children placed in the home.

(b) If BCU determines that an individual is subject to this rule and has an exclusion listed in 42 USC 671(a)(20)(A), BCU mustmake the determination of ineligibility due to mandatory exclusion. Exclusions include:

(A) Felony conviction consisting of:

(i) Child abuse or neglect;

(ii) Spousal abuse;

(iii) A crime against children (including child pornography);

(iv) A crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault or battery;

(B) If, within five years from the date of the final decision, a felony conviction of:

(i) Physical assault or battery; or

(ii) A drug-related offense.

(c) Under OAR 125-007-0260(2)(d), the determination of ineligibility due to mandatory exclusion is considered an incomplete fitness determination. A fitness determination with a weighing test is not required regardless of any other potentially disqualifying crimes or conditions the SI has. When a background check results in an incomplete fitness determination, the SI must not be allowed to work, volunteer, be employed, or otherwise perform in the position listed on the background check request. An incomplete fitness determination must result in immediate termination, dismissal, or removal of the SI.

(d) A determination of ineligibility due to mandatory exclusion is not subject to appeal rights under OAR 125-007-0300 or 943-007-0501.

History

Statutory/Other Authority: ORS 181A.195 & 409.050
Statutes/Other Implemented: ORS 181A.195
DHS 1-2023, amend filed 01/27/2023, effective 02/01/2023
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 31-2018, amend filed 11/28/2018, effective 12/01/2018
DHSD 26-2018, temporary amend filed 09/20/2018, effective 09/20/2018 through 12/27/2018
DHSD 13-2018, temporary amend filed 06/29/2018, effective 07/01/2018 through 12/27/2018
DHSD 6-2017, f. 6-30-17, cert. ef. 7-1-17
DHSD 3-2017(Temp), f. & cert. ef. 3-15-17 thru 9-10-17
DHSD 9-2016, f. & cert. ef. 12-1-16
DHSD 6-2016(Temp), f. & cert. ef. 7-1-16 thru 12-27-16
DHSD 5-2016, f. 6-10-16, cert. ef. 6-15-16

Or. Admin. R. 407-007-0281 Temporary rule language in effect until 12/01/2026. Potentially Disqualifying Convictions

A conviction of any of the following crimes is potentially disqualifying. However, offenses or convictions that are classified as less than a misdemeanor, such as violations or infractions, are not potentially disqualifying (see ORS 161.505 to 161.565).

(1) Pursuant to OAR 125-007-0270, any conviction of a misdemeanor or felony in any jurisdiction, a U.S. military crime, or an international crime is a permanent review crime for the following:

(a) An SI associated with Department Child Welfare adoptive and foster homes subject to criminal records checks under OAR 413-120-0400 to 413-120-0475.

(b) An SI who is an employee, contractor or volunteer for a Department Child Welfare licensed child caring agency governed by OAR chapter 419 division 400.

(c) An SI, as listed in OAR 407-007-0210(12)(a)(H) associated with a child adoptive or foster home licensed by a child caring agency governed by OAR chapter 419 division 400.

(2) Potentially disqualifying convictions for SIs subject to ORS 475A and OAR 333-333-4100 include section (3) of this rule with the following exceptions:

(a) BCU may not consider the following for SIs applying for license or renewal of license:

(A) The manufacture of psilocybin or the manufacture of a marijuana item, as defined in ORS 475C.009, if:

(i) The date of the conviction is two or more years before the submission date of the application; and

(ii) The SI has not been convicted more than once for the manufacture of psilocybin or a marijuana item; or

(B) The possession of a controlled substance, as defined in ORS 475.005, or a marijuana item, as defined in ORS 475C.009, if:

(i) The date of the conviction is two or more years before the date of the application; or

(ii) The person has not been convicted more than once for the possession of a controlled substance or a marijuana item.

(b) BCU may only consider the following for SIs applying for a permit or renewal of a permit:

(A) Any felony conviction; or

(B) Any felony or misdemeanor conviction under OAR ORS 475A.210 to 475A.722 if the date of the conviction is less than two years before the date of the application or renewal.

(3) For all other SIs subject to these rules:

(a) The crimes listed in this section are permanent review crimes which require that a fitness determination with a weighing test be completed regardless of date of conviction.

(A) ORS 163.095, Aggravated murder

(B) ORS 163.107, Murder I

(D) ORS 163.118, Manslaughter I

(E) ORS 163.125, Manslaughter II

(F) ORS 163.145, Criminally negligent homicide

(G) ORS 163.149, Aggravated vehicular homicide

(H) ORS 163.165, Assault III

(I) ORS 163.175, Assault II

(J) ORS 163.185, Assault I

(K) ORS 163.187, Strangulation

(L) ORS 163.200, Criminal mistreatment II

(M) ORS 163.205, Criminal mistreatment I

(N) ORS 163.225, Kidnapping II

(O) ORS 163.235, Kidnapping I

(P) ORS 163.263, Subjecting another person to involuntary servitude in the second degree

(Q) ORS 163.264, Subjecting another person to involuntary servitude in the first degree

(R) ORS 163.266, Trafficking in persons

(S) ORS 163.275, Coercion

(T) ORS 163.355, Rape III

(U) ORS 163.365, Rape II

(V) ORS 163.375, Rape I

(W) ORS 163.385, Sodomy III

(X) ORS 163.395, Sodomy II

(Y) ORS 163.405, Sodomy I

(Z) ORS 163.408, Unlawful sexual penetration II

(AA) ORS 163.411, Unlawful sexual penetration I

(BB) ORS 163.413, Purchasing sex with a minor, if the courts designate the offense as a sex crime pursuant to ORS 163.413(3)(d), or the offense is the defendant’s second or subsequent convictions under ORS 163.413(3)(b)(B)

(CC) ORS 163.415, Sexual abuse III

(DD) ORS 163.425, Sexual abuse II

(EE) ORS 163.427, Sexual abuse I

(FF) ORS 163.432, Online sexual corruption of a child in the second degree, if the offender reasonably believed the child to be more than five years younger than the offender

(GG) ORS 163.433, Online sexual corruption of a child in the first degree, if the offender reasonably believed the child to be more than five years younger than the offender

(HH) ORS 163.435, Contributing to the sexual delinquency of a minor

(II) ORS 163.445, Sexual misconduct, if the offender is at least 18 years of age

(JJ) ORS 163.465, Public indecency

(KK) ORS 163.467, Private indecency

(LL) ORS 163.525, Incest, with a child victim

(MM) ORS 163.535, Abandonment of a child

(NN) ORS 163.537, Buying or selling a person under 18 years of age

(OO) ORS 163.547, Child neglect I

(PP) ORS 163.670, Using child in display of sexually explicit conduct

(QQ) ORS 163.680, Paying for viewing a child’s sexually explicit conduct

(RR) ORS 163.684, Encouraging child sexual abuse I

(SS) ORS 163.686, Encouraging child sexual abuse II

(TT) ORS 163.687, Encouraging child sexual abuse III

(UU) ORS 163.688, Possession of materials depicting sexually explicit conduct of a child I

(VV) ORS 163.689, Possession of materials depicting sexually explicit conduct of a child II

(WW) ORS 163.700, Invasion of personal privacy II

(XX) ORS 163.701, Invasion of personal privacy I

(YY) ORS 163A.005, All crimes listed in definition of “Sex Crime,” including Transporting child pornography into the state

(ZZ) ORS 164.055, Theft I

(AAA) ORS 164.057, Aggravated theft I

(BBB) ORS 164.098, Organized retail theft

(CCC) ORS 164.125, Theft of services

(DDD) ORS 164.215, Burglary II

(EEE) ORS 164.225, Burglary I

(FFF) ORS 164.325, Arson I

(GGG) ORS 164.377, Computer crime

(HHH) ORS 164.405, Robbery II

(III) ORS 164.415, Robbery I

(JJJ) ORS 165.013, Forgery I

(KKK) ORS 165.022, Criminal possession of a forged instrument I

(LLL) ORS 165.032, Criminal possession of a forgery device

(MMM) ORS 165.800, Identity theft

(NNN) ORS 165.803, Aggravated identity theft

(OOO) ORS 167.012, Promoting prostitution

(PPP) ORS 167.017, Compelling prostitution

(QQQ) ORS 167.057, Luring a minor

(RRR) ORS 167.320, Animal abuse I

(SSS) ORS 167.322, Aggravated animal abuse I

(TTT) ORS 167.333, Sexual assault of animal

(UUU) ORS 475.752(1), (2) and (6), Prohibited acts generally (regarding delivery and manufacture drug crimes; formerly ORS 475.840, 2005-2011)

(VVV) ORS 475.806, Unlawful manufacture of hydrocodone

(WWW) ORS 475.808, Unlawful manufacture of hydrocodone within 1,000 feet of school

(XXX) ORS 475.810, Unlawful delivery of hydrocodone

(YYY) ORS 475.812, Unlawful delivery of hydrocodone within 1,000 feet of school

(ZZZ) ORS 475.816, Unlawful manufacture of methadone

(AAAA) ORS 475.818, Unlawful manufacture of methadone within 1,000 feet of school

(BBBB) ORS 475.820, Unlawful delivery of methadone

(CCCC) ORS 475.822, Unlawful delivery of methadone within 1,000 feet of school

(DDDD) ORS 475.826, Unlawful manufacture of oxycodone

(EEEE) ORS 475.828, Unlawful manufacture of oxycodone within 1,000 feet of school

(FFFF) ORS 475.830, Unlawful delivery of oxycodone

(GGGG) ORS 475.832, Unlawful delivery of oxycodone within 1,000 feet of school

(HHHH) ORS 475.840(1) and (2), Prohibited acts generally (regarding delivery and manufacture drug crimes formerly ORS 475.992; renumbered to ORS 475.752 in 2011)

(IIII) ORS 475.846, Unlawful manufacture of heroin

(JJJJ) ORS 475.848, Unlawful manufacture of heroin within 1,000 feet of school

(KKKK) ORS 475.850, Unlawful delivery of heroin

(LLLL) ORS 475.852, Unlawful delivery of heroin within 1,000 feet of school

(MMMM) ORS 475.866, Unlawful manufacture of 3,4-methylenedioxymethamphetamine

(NNNN) ORS 475.868, Unlawful manufacture of 3,4-methylenedioxymethamphetamine within 1,000 feet of school

(OOOO) ORS 475.870, Unlawful delivery of 3,4-methylenedioxymethamphetamine

(PPPP) ORS 475.872, Unlawful delivery of 3,4-methylenedioxymethamphetamine within 1,000 feet of school

(QQQQ) ORS 475.876, Unlawful manufacture of cocaine

(RRRR) ORS 475.878, Unlawful manufacture of cocaine within 1,000 feet of school

(SSSS) ORS 475.880, Unlawful delivery of cocaine

(TTTT) ORS 475.882, Unlawful delivery of cocaine within 1,000 feet of school

(UUUU) ORS 475.886, Unlawful manufacture of methamphetamine

(VVVV) ORS 475.888, Unlawful manufacture of methamphetamine within 1,000 feet of school

(WWWW) ORS 475.890, Unlawful delivery of methamphetamine

(XXXX) ORS 475.892, Unlawful delivery of methamphetamine within 1,000 feet of school

(YYYY) ORS 475.904, Unlawful delivery of controlled substance within 1,000 feet of school

(ZZZZ) ORS 475.906, Penalties for distribution to minors

(AAAAA) ORS 475.908, Causing another person to ingest a controlled substance

(BBBBB) ORS 475.910, Application of controlled substance to the body of another person

(CCCCC) ORS 475.912, Unlawful delivery of imitation controlled substance

(DDDDD) ORS 475.914, Prohibited acts for registrants (with the Oregon State Board of Pharmacy)

(EEEEE) ORS 475C.333, Prohibition against giving marijuana item as prize

(FFFFF) ORS 475C.345, Unlawful delivery of marijuana item

(GGGGG) ORS 475C.349, Unlawful manufacture of marijuana item

(HHHHH) 475C.369 Administration to another person under 18 years of age

(IIIII) ORS 475C.373, Unlawful sale or delivery of marijuana paraphernalia

(JJJJJJ ) Or Law 2021 Ch. 542 Sec. 41, Unlawful production of marijuana (to be repealed 1/1/2024)

(KKKKK) Any crime of attempt, solicitation, or conspiracy to commit a crime listed in this section pursuant to ORS 161.405, 161.435, or 161.450

(LLLLL) Any crime in any other jurisdiction that is the substantial equivalent of any of the Oregon crimes listed in section (3)(a) of this rule, as determined by BCU. This includes any U.S. military crimes which are the substantial equivalent of crimes listed in section (3)(a) of this rule.

(b) The crimes listed in this section are ten-year review crimes which require that a fitness determination with a weighing test be completed if the date of conviction is within ten years of the background check submission.

(A) Any misdemeanor or felony not listed in section (3)(a) or (3)(c) of this rule in Oregon or any other jurisdiction. This includes U.S. military crimes not considered to be the substantial equivalent of crimes listed in section (3)(a) of this rule.

(B) Any crime of attempt, solicitation, or conspiracy to commit a crime pursuant to ORS 161.405 or 161.435, or 161.450 included in section (3)(b).

(c) Two or more convictions of ORS 813.010 (Driving under the Influence of Intoxicants (DUII)) or 830.325 (Operating Boat while under Influence of Intoxicants) or a misdemeanor conviction under a law in any jurisdiction that imposes criminal penalties for operating a vehicle or boat while under the influences of intoxicants, are potentially disqualifying if they have occurred within five years of the date of the background check submission.

(A) A single conviction of a crime in section (3)(c) is not considered potentially disqualifying regardless of the date of conviction.

(B) If an SI has two or more convictions of a crime in section (3)(c) and only one, or none, occurred within five years from the date of the background check submission, the convictions are not potentially disqualifying.

(4) Evaluations of crimes may be based on available information in Oregon laws and laws in other jurisdictions regarding the crime.

(5) BCU determines if a crime from another jurisdiction is substantially equivalent to an Oregon crime.

(a) For the purposes of this rule, “substantially equivalent” or “substantial equivalence” means an offense under the law of another jurisdiction, at the time of the conviction, contains essential elements that materially correspond to the essential elements of the Oregon offense identified in statute.

(A) Differences in offense title, numbering, degree labels, or phrasing do not preclude equivalence if the essential elements materially correspond.

(B) Material differences in required mental state, proscribed conduct, protected class (e.g., minor or vulnerable person), or enumerated aggravating features defeat equivalence.

(b) BCU shall make an objective, side‑by‑side comparison of the statutory elements of the crime from another jurisdiction and the elements of similar Oregon offenses.

(A) The comparison must be based on Oregon law in effect on the date of the conviction. If the crime from another jurisdiction is still pending, the comparison must be based on Oregon law currently in effect.

(B) If the law or statute of the crime in another jurisdiction includes different possible sets of elements, BCU shall determine which specific set of elements apply using information in the official court record, such as the charge, indictment, plea, or verdict.

(C) BCU may consider controlling judicial interpretations of the statutes in each jurisdiction for purposes of clarifying the elements. BCU shall not reconsider the facts of the case, except for what is needed to determine which parts of the statute apply.

(D) BCU may use police reports or documented summaries only if needed to confirm which part of the statute applies to the conviction or pending charge.

(E) If needed for the substantial equivalence determination, BCU shall use the classification, penalty and sentencing range of the crime in the other jurisdiction and determine whether these compare to the corresponding Oregon classification, penalty or sentencing range. Differences in classification, penalty or sentencing range alone do not defeat equivalence when the elements materially correspond.

(F) BCU shall document the substantial equivalence review.

(c) When the crime being reviewed does not meet the criteria to be substantially equivalent to an Oregon offense, the crime will be considered a ten-year review crime and a weigh test must be completed if the date of conviction is within ten years of the background check submission.

(6) Under no circumstances may a crime be considered potentially disqualifying if it is:

(a) Related to marijuana if the crime is no longer a criminal offense in the originating jurisdiction.

(b) Part of a juvenile record that has been expunged pursuant to ORS 419A.260 to 419A.262.

History

Statutory/Other Authority: ORS 181A.195 & ORS 409.050
Statutes/Other Implemented: ORS 181A.195, 475A.250, 475A.483 & 443.004
DHS 1-2026, temporary amend filed 05/29/2026, effective 06/05/2026 through 12/01/2026
DHS 1-2023, amend filed 01/27/2023, effective 02/01/2023
DHS 2-2022, minor correction filed 03/02/2022, effective 03/02/2022
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 2-2020, adopt filed 02/10/2020, effective 02/10/2020
DHSD 19-2019, temporary adopt filed 10/01/2019, effective 10/01/2019 through 03/24/2020
DHSD 18-2019, temporary adopt filed 09/26/2019, effective 09/27/2019 through 03/24/2020

Or. Admin. R. 407-007-0290 Potentially Disqualifying Conditions

Pursuant to OAR 125-007-0270, the following are potentially disqualifying conditions, if they exist on the date of the final fitness determination unless otherwise noted. This rule does not apply to SIs subject to ORS 475A and OAR 333-333-4100.

(1) False statement is potentially disqualifying when all the following conditions are met:

(a) In a background check request, an SI has submitted the answer, “No” to the question regarding whether the SI has criminal history;

(b) The Department finds potentially disqualifying criminal history in the criminal records check; and

(c) The found potentially disqualifying criminal history occurred before the date of the SI’s submission of the criminal records check request.

(2) The SI is a registered sex offender in any jurisdiction. There is a rebuttable presumption that an SI is likely to engage in conduct that would pose a significant risk to vulnerable individuals if the SI has been designated as a level three sex offender under ORS 163A.100(3), a predatory sex offender prior to January 1, 2014, or found to be a sexually violent dangerous offender under ORS 144.635 (or similar designations in other jurisdictions).

(3) The SI has an outstanding warrant for any permanent review crime in any jurisdiction.

(4) The SI has a deferred sentence, conditional discharge, or is participating in a diversion program for a permanent review crime in any jurisdiction.

(5) The SI is currently on probation, parole, or post-prison supervision for a potentially disqualifying crime in any jurisdiction.

(6) The SI has been found in violation of post-prison supervision, parole, or probation for a potentially disqualifying crime or condition in any jurisdiction within five years from the date of the final fitness determination.

(7) The SI has an unresolved arrest, charge, or a pending indictment for a permanent review crime in any jurisdiction.

(8) The SI has been arrested in any jurisdiction as a fugitive from another state or a fugitive from justice for a permanent review crime that results in a potentially disqualifying conviction or condition.

(9) The SI has an adjudication in a juvenile court in any jurisdiction, finding that the SI was responsible for a permanent review crime that would result in a conviction if committed by an adult. Subsequent adverse rulings from a juvenile court, such as probation violations, are also potentially disqualifying if within five years from the date of the final fitness determination.

(10) The SI has a finding of “guilty except for insanity,” “guilty except by reason of insanity,” “not guilty by reason of insanity,” “responsible except for insanity,” “not responsible by reason of mental disease or defect,” or similarly worded disposition in any jurisdiction regarding a permanent review crime, unless the local statutes indicate that such an outcome is considered an acquittal.

(11) The SI has potentially disqualifying abuse as determined from abuse investigation reports which have an outcome of founded or substantiated, and in which the SI is determined to have been responsible for the abuse. For the following SIs, potentially disqualifying abuse includes:

(a) For an SI subject to 42 USC 671(a)(20) under the State Plan for Foster Care and Adoption Assistance (the Adam Walsh Act of 2006) or who is an employee of a QE subject to Section 471(a)(20)(D) of the federal 2018 Family First Prevention Services Act and which receives title IV-E funds:

(A) Child protective services history held or received by the Department or OTIS regardless of the date of the initial report;

(B) Child protective services history from any state or jurisdiction reviewed pursuant to the federal requirements and determined by BCU to be potentially disqualifying; and

(C) Adult protective services investigations of neglect, physical abuse, sexual abuse, or financial exploitation initiated on or after January 1, 2010, as provided to BCU by OTIS and APD programs based on severity.

(b) For an SI on the background check registry maintained under OAR 407-007-0600 to 407-007-0640; licensed, certified, or otherwise regulated by the Department; associated with any QE licensed, certified, or otherwise regulated by the Department (any QE licensed, certified, or regulated only with the Authority and not the Department are not included):

(A) Child protective services history held or received by the Department or OTIS regardless of the date of the initial report; and

(B) Adult protective services investigations of neglect, physical abuse, sexual abuse, or financial exploitation initiated on or after January 1, 2010, as provided to BCU by the OTIS and APD programs based on severity.

(A) Child protective services history held or received by the Department or OTIS regardless of the date of the initial report; and

(d) For all other SIs, adult protective services investigations of neglect, physical abuse, sexual abuse, or financial exploitation initiated on or after January 1, 2010, as provided to the BCU by OTIS and APD programs based on severity.

(12) For an SI who is a proctor foster parent, the SI has any restraining order or protective order against the SI.

(13) For an SI who is SI who is a proctor foster parent, the SI makes a false statement to the QE or Department, including the provision of materially false information, regarding abuse, restraining orders, or protective orders; or failure to disclose information regarding abuse, restraining orders, or protective orders. Nondisclosure of unsubstantiated or inconclusive abuse or dismissed restraining orders or protective orders, may not be considered a false statement.

History

Statutory/Other Authority: ORS 181A.200, 409.027 & 409.050
Statutes/Other Implemented: ORS 181A.200, 409.027, ORS 181A.195, 409.010, 443.004 & 418.248
DHS 1-2023, amend filed 01/27/2023, effective 02/01/2023
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 10-2017, f. & cert. ef. 9-1-17
DHSD 9-2016, f. & cert. ef. 12-1-16
DHSD 6-2016(Temp), f. & cert. ef. 7-1-16 thru 12-27-16
DHSD 5-2016, f. 6-10-16, cert. ef. 6-15-16
DHSD 1-2016(Temp), f. & cert. ef. 1-14-16 thru 7-11-16
DHSD 4-2015, f. 7-31-15, cert. ef. 8-1-15
DHSD 1-2015(Temp), f. & cert. ef. 2-3-15 thru 8-1-15
DHSD 2-2014, f. & cert. ef. 12-1-14
DHSD 3-2013, f. & cert. ef. 8-1-13
DHSD 1-2013(Temp), f. & cert. ef. 2-5-13 thru 8-2-13
DHSD 4-2012, f. & cert. ef. 8-1-12
DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12
DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11
DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11
DHSD 1-2011(Temp), f. & cert. ef. 4-15-11 thru 10-11-11
DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10
DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2009, f. & cert. ef. 10-1-09
DHSD 2-2009, f. & cert. ef. 4-1-09
DHSD 10-2008, f. 12-26-08, cert. ef. 1-1-09
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07, Renumbered from 410-007-0290
OMAP 22-2005, f. & cert. ef. 3-29-05
OMAP 8-2004, f. 2-26-04, cert. ef. 3-1-04

Or. Admin. R. 407-007-0300 Weighing Test

If an SI has potentially disqualifying convictions under OAR 407-007-0281, or potentially disqualifying conditions under OAR 407-007-0290, BCU conducts a weighing test. The weighing test includes consideration of factors pursuant to ORS 181A.195 and the following if available to the BCU at the time of the weighing test.

(1) Circumstances regarding the nature of potentially disqualifying convictions and conditions including but not limited to:

(a) The details of incidents leading to the potentially disqualifying convictions or conditions.

(b) Age, maturity and mental capacity of the SI at time of the potentially disqualifying convictions or conditions.

(d) Passage of time since commission of the potentially disqualifying convictions or conditions.

(e) Consideration of state or federal laws, regulations, or rules covering the position, facility, employer, or QE regarding the potentially disqualifying convictions or conditions.

(f) Consideration of state or federal laws, regulations, or rules that impact what is considered potentially disqualifying. For example:

(A) Effective February 1, 2021, most possession crimes in Oregon were reduced to violations, making them no longer potentially disqualifying.

(2) If applicable, circumstances regarding the nature of potentially disqualifying abuse including but not limited to:

(a) The nature and type of abuse; and

(b) Other information gathered during the scope of the abuse investigation.

(d) The quality of the abuse investigation including, if applicable, any exhibits and related documents with consideration taken into account regarding completeness, objectivity, and sufficiency.

(e) Due process or lack thereof provided to the SI after the abuse investigation.

(f) Required conditions and actions resulting from the founded or substantiated abuse that would allow for reinstatement of the SI in the position including but not limited to training, counseling, corrective or disciplinary action, and the SI’s compliance.

(3) Other factors when available including but not limited to:

(a) Periods of incarceration, including rehabilitation or other impacts on SI.

(b) Status of and compliance with parole, post-prison supervision, or probation regarding potentially disqualifying convictions or conditions.

(d) Evidence of other treatment or rehabilitation related to potentially disqualifying convictions or conditions.

(e) Likelihood of repetition of behaviors leading to potentially disqualifying convictions or conditions.

(f) Other information related to criminal activity including charges, arrests, pending indictments, and convictions. Other behavior involving contact with law enforcement may also be reviewed if information is relevant to other criminal records or shows a pattern relevant to criminal history. Consideration of these activities and behaviors are only allowed for SIs listed in OAR 407-007-0281(1).

(g) Changes in circumstances subsequent to the potentially disqualifying convictions or conditions including but not limited to:

(A) History of high school, college, or other education related accomplishments.

(B) Work history (employee or volunteer).

(D) Written recommendations from current or past employers, including Department client employers.

(h) Indication of the SI’s cooperation, honesty during the background check process, including:

(A) Acknowledgment and acceptance of responsibility of potentially disqualifying convictions and conditions; or

(B) Providing false, incomplete or misleading information regarding potentially disqualifying convictions and conditions, or any subsequent circumstances.

(4) BCU must consider the relevancy of the SI’s potentially disqualifying convictions or conditions to the paid or volunteer position, or to the environment in which the SI will reside, work, or visit.

History

Statutory/Other Authority: ORS 181A.200, 409.027, 409.050 & 443.008
Statutes/Other Implemented: ORS 181A.200, 409.027, ORS 181A.195, 409.010 & 443.004
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 5-2016, f. 6-10-16, cert. ef. 6-15-16
DHSD 1-2016(Temp), f. & cert. ef. 1-14-16 thru 7-11-16
DHSD 2-2014, f. & cert. ef. 12-1-14
DHSD 4-2012, f. & cert. ef. 8-1-12
DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12
DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11
DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11
DHSD 1-2011(Temp), f. & cert. ef. 4-15-11 thru 10-11-11
DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10
DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2009, f. & cert. ef. 10-1-09
DHSD 10-2008, f. 12-26-08, cert. ef. 1-1-09
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07, Renumbered from 410-007-0300
OMAP 22-2005, f. & cert. ef. 3-29-05
OMAP 8-2004, f. 2-26-04, cert. ef. 3-1-04

Or. Admin. R. 407-007-0315 Hired on a Preliminary Basis

(1) A preliminary fitness determination is required to determine if an SI may participate in training or orientation, work, volunteer, or otherwise perform in the position listed on the background check request prior to a final fitness determination. An SI may not be hired on a preliminary basis prior to the completion of a preliminary fitness determination.

(2) An SI may be hired on a preliminary basis only:

(a) During the period of time prior to a final fitness determination;

(b) For the position listed on the background check request; and

(3) To be hired on a preliminary basis, an SI and QED must provide minimum information required for a background check request as indicated in OAR 407-007-0250.

(4) The QE may not hire a SI on a preliminary basis under any of the following circumstances:

(a) Program rules, Oregon statutes, or federal directives do not allow hiring on a preliminary basis.

(b) Once submitted in ORCHARDS, the background check record indicates that preliminary hire is not allowed and the QE does not subsequently request a review by BCU as indicated in section (5) of this rule resulting in the QE being allowed to hire the SI on a preliminary basis.

(A) More likely than not, the SI poses a potential threat to vulnerable individuals, based on a preliminary fitness determination and weighing test;

(B) The SI’s most recent background check under these rules or other Department or Authority criminal records check rules or abuse check rules resulted in a denial; or

(C) The SI is currently involved in contesting a background check under these or other Department or Authority criminal records check rules or abuse check rules; or

(D) BCU has reason to believe hiring on a preliminary basis is not appropriate based on circumstances or compliance with the background check process of the SI, QED, or QE.

(d) An outcome of not hiring on a preliminary basis may only be overturned by the BCU.

(5) If requested by the QED, BCU may review a newly submitted background check request when hiring on a preliminary basis has not been allowed. For example:

(a) BCU may review the background check request for disclosed criminal history that caused BCU’s background check online system to not allow hiring on a preliminary basis. If BCU does not find any potentially disqualifying convictions or conditions in the SI’s disclosures, BCU updates the SI’s status accordingly. The QE may hire the SI on a preliminary basis if nothing in section (4) of this rule applies.

(b) If the SI has disclosed potentially disqualifying convictions or conditions, BCU may conduct a preliminary fitness determination pursuant to OAR 125-007-0250 with a weighing test. If BCU makes a positive decision in the preliminary fitness determination, BCU updates the SI’s status accordingly and the QE may hire the SI on a preliminary basis if nothing in section (4) of this rule applies. If BCU makes a negative decision, BCU must revoke hiring of the SI on a preliminary basis.

(6) An SI hired on a preliminary basis must be actively supervised at all times unless sections (7) or (8) of this rule apply.

(a) The individual providing active supervision at all times must do the following:

(A) Be in the same building as the SI or, if outdoors of QE buildings or any location off the QE property, be within line-of-sight and -of-hearing, except as provided in section (6)(b)(B) of this rule;

(B) Know where the SI is and what the SI is doing; and

(b) The individual providing the active supervision may be either:

(A) An SI who has been approved without restrictions pursuant to these rules or previous Department or Authority criminal records check rules; or

(B) The adult client, an adult client’s adult relation, the client’s legal representative, or a child’s parent or guardian. Active supervision by these individuals is appropriate in situations where care is given directly to clients usually in a home such as but not limited to in-home care, home health, or care by home care workers, or personal care assistants.

(i) The adult client may actively supervise a homecare worker, personal care services provider, independent provider, or an employee of an in-home care agency or home health agency if the client makes an informed decision to employ the provider. Someone related to the client may also provide active supervision if the relative has been approved by the Department, the Authority, the QED, or the private-pay client receiving services through an in-home care or home health agency.

(ii) A child client’s parent or guardian is responsible for providing active supervision in the case of child care providers. The supervision is not required to be performed by someone in the same building as the child.

(7) An SI allowed to work on a preliminary basis is exempt from active supervision if SI is working under an approved background check and is currently going through a recheck required by program rules or OAR 407-007-0600 to 407-007-0640 unless there is evidence of potentially disqualifying convictions or conditions since the previous background check. If BCU finds evidence of criminal activity or potentially disqualifying abuse since the previous background check, BCU may revoke working on a preliminary basis.

(8) An SI approved without restrictions within the previous 24 months through a documented criminal records check or abuse check pursuant to these rules or prior Department or Authority criminal records check rules or abuse check rules may be hired on a preliminary basis without active supervision. Twenty-four months is calculated from date of previous approval to the date of hire in the new position. Exemption from active supervision is not allowed in any of the following situations:

(a) If the SI cannot provide documented proof that he or she worked continuously under the previous approval for at least one year.

(b) If there is evidence of potentially disqualifying convictions or conditions within the previous 24 months.

(c) If, as determined by the QE or BCU, the job duties in the new position are so substantially different from the previous position that the previous fitness determination is inadequate for the current position.

(9) Revocation of hired on a preliminary basis is not subject to hearing or appeal. The QE or BCU may immediately revoke hired on a preliminary basis for either of the following reasons:

(a) There is any indication of falsification of the background check application.

(b) The QE or BCU determines that allowing the SI to be hired on a preliminary basis is not appropriate, based on the application, criminal record, position duties, preliminary fitness determination by the Department, or Department program rules.

(10) Nothing in this rule is intended to require that an SI who is eligible to be hired on a preliminary basis be allowed to work, volunteer, be employed, or otherwise perform in the position listed on the background check request prior to a final fitness determination.

(11) Preliminary fitness determinations must be documented in writing, including any details regarding a weighing test, if required.

History

Statutory/Other Authority: ORS 181A.200, ORS 409.027 & 409.050
Statutes/Other Implemented: ORS 181A.200, ORS 409.027, ORS 181A.195, 409.010 & 443.004
DHS 1-2023, amend filed 01/27/2023, effective 02/01/2023
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 10-2017, f. & cert. ef. 9-1-17
DHSD 5-2016, f. 6-10-16, cert. ef. 6-15-16
DHSD 1-2016(Temp), f. & cert. ef. 1-14-16 thru 7-11-16
DHSD 2-2014, f. & cert. ef. 12-1-14
DHSD 4-2012, f. & cert. ef. 8-1-12
DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12
DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11
DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11
DHSD 1-2011(Temp), f. & cert. ef. 4-15-11 thru 10-11-11
DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10
DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10

Or. Admin. R. 407-007-0318 Approval for “Family First” Subject Individuals

(1) Approval in this rule applies to the background check process for certain employees of a child caring agency which is subject to the federal 2018 Family First Prevention Services Act and receives title IV-E funds. Specifically, this rule applies to an SI who:

(a) Is an employee of a child caring agency licensed by ODHS Child Welfare, OAR Chapter 419;

(b) Resided outside of Oregon for 60 or more consecutive days during the previous five years requiring a check of child abuse and neglect registries from states other than Oregon.

(2) An SI is eligible for an Approval if all the following conditions are met:

(a) The QED has submitted the background check to BCU.

(b) The SI has submitted fingerprint capture and the fingerprint criminal records check has been completed and the results have been returned to BCU;

(c) Requested documentation required for the out of state child abuse check has been completed by the SI and BCU, and BCU has submitted the documentation to the state for the abuse check; and

(d) Based on all the information currently available to BCU on the SI’s Oregon and national criminal records check and Oregon adult and child abuse checks, the final fitness determination appears to be “approved” in accordance with OAR 407-007-0320.

(3) Should BCU at any time after an Approval receive a negative finding response from a request to another state made in section (2) of this rule, BCU must either:

(a) Rescind the Approval and continue with the background check process which may include gathering further information and conducting a weighing test pursuant to OAR 407-007-0300.

(b) Notify the QE that a new background check is required.

History

Statutory/Other Authority: ORS 181A.200, 409.027 & 409.050
Statutes/Other Implemented: ORS 181A.200, 181A.195, 409.027 & 409.010
DHS 1-2023, amend filed 01/27/2023, effective 02/01/2023
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHSD 7-2020, adopt filed 08/03/2020, effective 08/03/2020

Or. Admin. R. 407-007-0320 Final Fitness Determinations

(1) A final fitness determination pursuant to OAR 125-007-0260 and these rules will be made after all necessary background checks have been received and a weighing test, if necessary, has been completed. For the purpose of a final fitness determination as defined in OAR 407-007-0010(18), an authorized designee includes:

(a) A BCU staff trained to make a final fitness determination;

(b) A BCU hearing representative if a fitness determination is contested under OAR 407-007-0330 or 943-007-0501; or

(c) An administrative law judge if a contested fitness determination results under a contested case hearing through the Office of Administrative Hearings.

(2) The final fitness determination results in one of the following outcomes:

(a) The authorized designee may approve an SI if:

(A) The SI has no potentially disqualifying convictions or potentially disqualifying conditions; or

(B) The SI has potentially disqualifying convictions or potentially disqualifying conditions and, after a weighing test, the authorized designee determines that more likely than not, the SI poses no risk to the physical, emotional, or financial well-being of vulnerable individuals.

(b) The authorized designee may approve an SI with restrictions if the SI has potentially disqualifying convictions or potentially disqualifying conditions and, after a weighing test, the authorized designee determines that more likely than not the SI poses no risk to the physical, emotional, or financial well-being of vulnerable individuals if certain restrictions are placed on the SI. Restrictions may include but are not limited to restrictions to one or more specific clients, job duties, or environments. A new background check and fitness determination shall be completed on the SI before removing a restriction.

(c) The authorized designee shall deny an SI if the SI has potentially disqualifying convictions or potentially disqualifying conditions and, after a weighing test, the authorized designee determines more likely than not the SI poses a risk to the physical, emotional, or financial well-being of vulnerable individuals.

(d) In the following situations the SI shall have no hearing rights and the authorized designee shall consider a background check to have an outcome of incomplete fitness determination:

(A) The QE or SI discontinues the application or fails to cooperate with the background check or fitness determination process, including but not limited to failure to disclose all requested criminal, abuse or other information, refusal to be fingerprinted or failing to respond in a timely manner to written correspondence from BCU. The background check request is considered closed.

(B) BCU determines that the SI is ineligible due to ORS 443.004 in accordance with OAR 407-007-0275 or 407-007-0277. The background check request is considered completed.

(C) BCU or the QE withdraws or closes the background check request before a final fitness determination for any reason. The background check request is considered closed.

(E) The QE determines that the SI ineligible for the position for reasons other than the background check. The background check request is considered closed.

(F) The SI who is a proctor foster parent and fails to provide a release of information, the background check request is considered closed.

(G) The authorized designee determines that the final fitness determination is Mandatory exclusion due to the SI being subject to OAR 407-007-0279 and having a conviction or condition listed in OAR 407-007-0279. The background check request is considered completed.

(3) Upon completion of a final fitness determination, BCU or the QE shall provide notice to the SI.

(a) If approved, BCU shall provide notice to the QE through ORCHARDS. The QE shall provide the SI a copy of the notice or ORCHARDS documentation.

(b) If denied or approved with restrictions, BCU shall issue a notice of fitness determination to the SI which includes the potentially disqualifying convictions or conditions that the outcome was based upon, information regarding appeal rights, and the notice becoming a final order in the event of a withdrawal or failure to appear at the hearing.

(4) BCU shall provide the QED notification of the final fitness determination when the SI is being denied or approved with restrictions.

(a) The notice to the QED shall not contain any details regarding the potentially disqualifying convictions or conditions.

(b) If the final fitness determination is approved with restrictions, BCU shall inform the QED of the restrictions required on the SI and the SI’s position.

(5) When an SI is denied or the background check results in an incomplete fitness determination, the SI shall not be allowed to work, volunteer, be employed, or otherwise perform in the position listed on the background check request. A denial applies only to the position and application in question. A denial or incomplete fitness determination shall result in immediate termination, dismissal, or removal of the SI.

(6) When an SI is approved with restrictions, the SI shall only be allowed to work, volunteer, be employed, or otherwise perform in the position listed on the background check request and only under the stated restrictions. A restricted approval applies only to the position and application in question. A restricted approval shall result in immediate implementation of the restrictions.

(7) BCU shall maintain any documents obtained or created during the background check process.

(8) BCU shall make new fitness determinations for each background check request. The outcome of previous fitness determinations does not set a precedent for subsequent fitness determinations.

History

Statutory/Other Authority: ORS 181A.200, 409.027 & 409.050
Statutes/Other Implemented: ORS 181A.195, 181A.200, 409.010, 409.027, 443.004 & 418.248
DHS 1-2023, amend filed 01/27/2023, effective 02/01/2023
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 10-2017, f. & cert. ef. 9-1-17
DHSD 6-2017, f. 6-30-17, cert. ef. 7-1-17
DHSD 3-2017(Temp), f. & cert. ef. 3-15-17 thru 9-10-17
DHSD 9-2016, f. & cert. ef. 12-1-16
DHSD 6-2016(Temp), f. & cert. ef. 7-1-16 thru 12-27-16
DHSD 5-2016, f. 6-10-16, cert. ef. 6-15-16
DHSD 1-2016(Temp), f. & cert. ef. 1-14-16 thru 7-11-16
DHSD 3-2013, f. & cert. ef. 8-1-13
DHSD 4-2012, f. & cert. ef. 8-1-12
DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12
DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11
DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11
DHSD 1-2011(Temp), f. & cert. ef. 4-15-11 thru 10-11-11
DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10
DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2009, f. & cert. ef. 10-1-09
DHSD 2-2009, f. & cert. ef. 4-1-09
DHSD 10-2008, f. 12-26-08, cert. ef. 1-1-09
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07, Renumbered from 410-007-0320
OMAP 22-2005, f. & cert. ef. 3-29-05
OMAP 8-2004, f. 2-26-04, cert. ef. 3-1-04

Or. Admin. R. 407-007-0330 Contesting a Fitness Determination

(1) An SI may contest an adverse fitness determination pursuant to OAR 407-007-0320. In this rule, an adverse fitness determination includes:

(a) A final fitness determination of denied or approved with restrictions pursuant to OAR 407-007-0320; or

(b) A mandatory exclusion pursuant to federal law and OAR 407-007-0279 if hearing rights are allowed by federal law.

(2) The appeal process is conducted in accordance with OAR 125-007-0300, ORS 183.411 to 183.497, and the Attorney General’s Uniform and Model Rules of Procedure for the Office of Administrative Hearings (OAH), OAR 137-003-0501 to 137-003-0700.

(3) During the appeal process, the final fitness determination remains in effect.

(a) If an SI is denied or mandatorily excluded, the SI may not hold the position, provide services or be employed, licensed, certified, or registered, or otherwise perform in positions covered by these rules.

(b) If an SI has an approval with restrictions, the SI may only work under the terms of the restriction listed on the notice of final fitness determination.

(4) A positive change does not guarantee employment or placement. A positive change is either:

(a) A denial changing to an approval or an approval with restrictions; or

(b) An approval with restrictions changing to an approval.

(5) An SI may represent himself or herself or have legal representation during the appeal process. For the purpose of this rule, the term “SI” includes the SI’s legal representative if the SI has provided the Department with such information.

(a) An SI who is appealing an adverse outcome regarding the position of homecare worker as defined in ORS 410.600 or personal support worker as defined in ORS 410.600 may be represented by a labor union representative pursuant to ORS 183.459.

(b) If the SI is a member of a bargaining unit, the SI may be represented by the certified or recognized exclusive representative of the bargaining unit.

(6) A hearing representative may represent BCU in contested case hearings. Alternatively, BCU may be represented by the Office of the Attorney General.

(7) Any contested case hearing request must be received by the Department by 11:59 p.m. on the due date, or if mailed, postmarked by 11:59 p.m. on the due date.

(a) To request a contested case hearing, the SI must complete, sign and date the Hearing Request form.

(b) The completed, signed, and dated form must be received by the Departmenton or before the due date. The due date is 30 calendar days after the effective date of action on the notice of fitness determination.

(c) If a contested case hearing request is not timely, BCU must determine, based on a written statement from the SI and available information, if there is good cause to proceed with the appeal process.

(d) BCU may refer an untimely request to OAH for a contested case hearing solely on the issue of the timeliness of the contested case hearing request.

(8) After BCU receives the SI’s request for a contested case hearing, BCU may conduct an administrative review before referring the appeal to OAH.

(a) The administrative review is not open to the public.

(b) The SI must participate in the administrative review.

(c) In addition to any other method of communication, the Department must provide the SI with written correspondence that initiates the administrative review process (“Correspondence”).

(d) The Correspondence must include a due date for the SI. Any response to the Department’s Correspondence must be received by the Department by 11:59 p.m. on the due date, or if mailed, postmarked by 11:59 p.m. on the due date.

(e) Participation by the SI may include but is not limited to providing additional information or additional documents requested on or before the due date specified in the Department’s Correspondence.

(g) The outcome of an administrative review is a new fitness determination.

(A) If the hearing representative makes a positive change to approved, BCU issues a final order and an amended notice to the SI and the QE.

(B) If the hearing representative makes a positive change from denial to approval with restrictions, BCU issues an amended notice to the SI and the QE. If the SI does not continue with to a contested case hearing, BCU issues a final order as an amended notice of fitness determination to the SI and the QE.

(C) If the hearing representative maintains the outcome of the final fitness determination, or changes an approval with restrictions to a denial, BCU refers the contested case hearing request to OAH.

(9) The SI may not challenge a finding of substantiated abuse or criminal conviction that was a basis for the adverse outcome under this rule. The SI has the right to contest the weight the Department has given to:

(a) The evidence;

(b) The factors used in the weighing test; or

(10) BCU may conduct additional research, including abuse checks or criminal records checks (if allowed by law) during the appeal process to update or verify the SI’s potentially disqualifying convictions or conditions and factors to consider in the weighing test. If needed, BCU amends the notice of fitness determination while still maintaining the original hearing rights and deadlines.

(11) An administrative law judge from OAH conducts the contested case hearing.

(a) The contested case hearing is not open to the public.

(b) The Department must provide the administrative law judge and the SI a complete copy of available information used during the criminal records checks and fitness determinations. The SI is entitled to reasonable notice of all hearing documents through proper service.

(c) An SI may not have access to confidential information contained in records collected or developed during the criminal records check process without a protective order limiting further disclosure of the information.

(A) The Department must request a protective order by motion to an administrative law judge as provided for in OAR 137-003-0568(5) or to a court of law.

(B) In conjunction with a protective order issued pursuant to this section, individually identifying information relating to clients, witnesses, and other persons identified in abuse investigation reports or other records collected or developed during the criminal records check process must be redacted prior to disclosure, except for the information identifying the SI.

(d) The administrative law judge must make a new final fitness determination based on evidence and the contested case hearing record.

(e) The only remedy an administrative law judge may grant is a final fitness determination that the SI is approved, approved with restrictions, denied, or mandatorily excluded pursuant to OAR 407-007-0279(1).

(f) Under no circumstances must the Departmentor the QE be required to place an SI in any position, nor must the Departmentor the QE be required to accept services or enter into a contractual agreement with an SI.

(12) The result of an appeal is a final order.

(a) In the following situations, the notice of final fitness determination becomes the final order by default as if the SI never requested a hearing:

(A) The SI failed to request a contested case hearing in the time allotted in this rule. No other document will be issued after the notice of final fitness determination.

(B) The SI withdraws the request for contested case hearing at any time during the appeal process.

(b) The Department must issue an order dismissing the appeal (a “dismissal order”) in the following circumstances:

(B) The SI may withdraw a hearing request verbally or in writing at any time before the issuance of a final order. A dismissal order due to the withdrawal is effective the date the withdrawal is received by the Department or OAH. The SI may cancel the withdrawal in writing within 14 calendar days after the date of withdrawal.

(C) The Department must dismiss a hearing request when the SI fails to participate in the administrative review. Failure to participate as defined in (8)(f) of this rule shall result in termination of hearing rights through a dismissal order.

(i) The dismissal order is effective on the date the Department mails the dismissal order.

(ii) The Department must review a good cause request from the SI to reinstate hearing rights if received in writing by the Department within 14 calendar days from the date of the dismissal order.

(A) If no written exceptions are received by the Department within 14 calendar days after the service of the proposed and final order, the proposed and final order becomes the final order.

(B) If timely written exceptions to the proposed and final order are received by the Department, the Department’s Director or designeemust consider the exceptions and serve a final order, or request a written response or a revised proposed and final order from the administrative law judge.

(13) Final orders, including dismissal and default orders, are subject to reconsideration or rehearing petitions within 60 calendar days after the order is served, pursuant to OAR 137-003-0675.

(14) All contested case hearing decisions are subject to judicial review under ORS 183.482 in the Court of Appeals.

(15) BCU may provide the QED with the results of the appeal.

History

Statutory/Other Authority: ORS 181A.200, 183.459, 409.027, 409.050, 443.008 & 181A.215
Statutes/Other Implemented: ORS 181A.200, 183.459, 409.027, ORS 181A.195, 409.010, 443.004 & 443.008
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 31-2018, amend filed 11/28/2018, effective 12/01/2018
DHSD 13-2018, temporary amend filed 06/29/2018, effective 07/01/2018 through 12/27/2018
DHSD 10-2017, f. & cert. ef. 9-1-17
DHSD 6-2017, f. 6-30-17, cert. ef. 7-1-17
DHSD 3-2017(Temp), f. & cert. ef. 3-15-17 thru 9-10-17
DHSD 9-2016, f. & cert. ef. 12-1-16
DHSD 5-2016, f. 6-10-16, cert. ef. 6-15-16
DHSD 1-2016(Temp), f. & cert. ef. 1-14-16 thru 7-11-16
DHSD 2-2014, f. & cert. ef. 12-1-14
DHSD 4-2012, f. & cert. ef. 8-1-12
DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12
DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11
DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11
DHSD 1-2011(Temp), f. & cert. ef. 4-15-11 thru 10-11-11
DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10
DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2009, f. & cert. ef. 10-1-09
DHSD 2-2009, f. & cert. ef. 4-1-09
DHSD 10-2008, f. 12-26-08, cert. ef. 1-1-09
DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08
DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07, Renumbered from 410-007-0330
OMAP 22-2005, f. & cert. ef. 3-29-05
OMAP 8-2004, f. 2-26-04, cert. ef. 3-1-04

Or. Admin. R. 407-007-0340 Record Keeping, Confidentiality

(1) All LEDS reports are confidential and the Department and Authority shall maintain the reports in accordance with applicable OSP requirements in ORS chapter 181 and the rules adopted pursuant thereto (see OAR chapter 257, division 15).

(a) LEDS reports are confidential and may only be shared within BCU if there is a need to know consistent with these rules.

(b) The LEDS report and any photocopies may not be shown or given to the SI.

(2) The results of a national criminal records check provided by the FBI or the OSP are confidential and may not be disseminated by BCU unless:

(a) If an SI requests the results of a fingerprint-based criminal records check received by BCU, the SI shall be provided a copy of the results.

(b) The state and national criminal offender information shall be provided as exhibits during the contested case hearing.

(3) The results of an abuse check are confidential and may not be disseminated by the Department or the Authority except in compliance with confidentiality statutes and guidelines of the Department or the Authority. An SI may not have access to confidential information contained in abuse investigation reports or other records collected or developed during the abuse check process without an order of discovery limiting further disclosure of the information during the contested case hearing process.

(4) All completed background check requests, other criminal history information, and other records collected or developed during the background check or contested case process shall be kept confidential and disseminated only on a need-to-know basis.

(5) The Department and Authority shall retain and destroy all criminal records check documents pursuant to federal law and records retention schedules published by Oregon State Archives.

(6) Documents retained by a QE may only be viewed by an approved QED or licensing staff authorized by the Department or Authority as part of monitoring compliance with licensing and program administrative rules.

(7) Documents retained by a QE may be requested and reviewed by the Department and the OSP for the purposes of determining and ensuring compliance with these rules.

(8) If an error is discovered on a notice of fitness determination, BCU may correct it by issuing an amended notice of fitness determination.

History

Statutory/Other Authority: ORS 181A.170, ORS 181A.200, ORS 409.027 & ORS 409.050
Statutes/Other Implemented: ORS 181A.170, ORS 181A.200, ORS 409.027, ORS 181A.195, ORS 409.010 & ORS 443.004
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 2-2014, f. & cert. ef. 12-1-14
DHSD 4-2012, f. & cert. ef. 8-1-12
DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12
DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11
DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11
DHSD 1-2011(Temp), f. & cert. ef. 4-15-11 thru 10-11-11
DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10
DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2009, f. & cert. ef. 10-1-09
DHSD 2-2009, f. & cert. ef. 4-1-09
DHSD 10-2008, f. 12-26-08, cert. ef. 1-1-09
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07, Renumbered from 410-007-0340
OMAP 22-2005, f. & cert. ef. 3-29-05
OMAP 8-2004, f. 2-26-04, cert. ef. 3-1-04

Or. Admin. R. 407-007-0350 Immunity from Liability

(1) The Department, the Authority, and the QE, acting within the course and scope of employment, have immunity from any civil liability that might otherwise be incurred or imposed for determining, in accordance with ORS 181A.200, that an SI is fit or not fit to hold a position, provide services, or be employed, licensed, certified, or registered.

(2) The Department, and Authority, and the QE, acting within the course and scope of employment, and an employer or employer’s agent are not liable for the failure to hire a prospective employee or the decision to discharge an employee on the basis of a fitness determination or closed case if they in good faith comply with:

(a) ORS 181A.200 and ORS 409.027; and

(b) The decision of the QE or employee of the QE acting within the course and scope of employment.

(3) No employee of the state, a business, or an organization, acting within the course or scope of employment, is liable for defamation, invasion of privacy, negligence, or any other civil claim in connection with the lawful dissemination of information lawfully obtained under ORS 181A.200.

History

Statutory/Other Authority: ORS 181A.200, 409.027 & 409.050
Statutes/Other Implemented: ORS 181A.195, 181A.200, 409.010, 409.027 & 443.004
DHSD 5-2016, f. 6-10-16, cert. ef. 6-15-16
DHSD 1-2016(Temp), f. & cert. ef. 1-14-16 thru 7-11-16
DHSD 2-2014, f. & cert. ef. 12-1-14
DHSD 4-2012, f. & cert. ef. 8-1-12
DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12
DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11
DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11
DHSD 1-2011(Temp), f. & cert. ef. 4-15-11 thru 10-11-11
DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2009, f. & cert. ef. 10-1-09
DHSD 2-2009, f. & cert. ef. 4-1-09
DHSD 10-2008, f. 12-26-08, cert. ef. 1-1-09
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07, Renumbered from 410-007-0350
OMAP 22-2005, f. & cert. ef. 3-29-05
OMAP 8-2004, f. 2-26-04, cert. ef. 3-1-04

Or. Admin. R. 407-007-0370 Variances

(1) The Department and Authority may consider variance requests regarding these rules.

(a) The outcomes of a fitness determination made pursuant to these rules is not subject to variance. Challenges to fitness determinations may only be made by SIs through contested case hearing rights set forth in these rules.

(b) Neither the Department nor the Authority may grant variances to ORS 181A.195 and 181A.200.

(2) The Department or Authority may grant a variance to any section of these rules based upon a demonstration by the QE that the variance would not pose a significant risk to physical, emotional, or financial well-being of vulnerable individuals.

(3) The QE requesting a variance must submit, in writing, an application to the BCU that contains:

(a) The section of the rule from which the variance is sought;

(b) The reason for the proposed variance;

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought; and

(e) An explanation on how the welfare, health, or safety of individuals receiving care will be ensured during the time the variance is in effect.

(4) The Assistant Director or designee for the Department and Authority’s Shared Services, Office of Human Resources shall approve or deny the request for a variance.

(5) BCU shall notify the QE of the decision within 60 calendar days of the receipt of the request and shall provide a copy to other relevant Department or Authority program offices.

(6) Appeal of the denial of a variance request must be made in writing to the Department or Authority’s Director, whose decision is final.

(7) The Department or Authority shall determine the duration of the variance.

(8) The QE may implement a variance only after receipt of written approval from BCU.

(9) Granting a variance does not set a precedent that must be followed by the Department or Authority when evaluating subsequent variance requests.

History

Statutory/Other Authority: ORS 181A.200 & 409.050
Statutes/Other Implemented: ORS 181A.195, 181A.200 & 409.010
DHSD 5-2016, f. 6-10-16, cert. ef. 6-15-16
DHSD 1-2016(Temp), f. & cert. ef. 1-14-16 thru 7-11-16
DHSD 4-2012, f. & cert. ef. 8-1-12
DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12
DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11
DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 7-2009, f. & cert. ef. 10-1-09
DHSD 10-2008, f. 12-26-08, cert. ef. 1-1-09
Renumbered from 410-007-0370, DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07
OMAP 22-2005, f. & cert. ef. 3-29-05
OMAP 8-2004, f. 2-26-04, cert. ef. 3-1-04

Or. Admin. R. 407-007-0400 Purpose

(1) The purpose of these rules, OAR 407-007-0400 to 407-007-0460, is to provide for the abuse check of Department of Human Services (Department) employees, volunteers, certain contractors, or individuals offered employment or placement by the Department to determine if they are fit to provide care.

(2) The abuse check process is separate from the criminal records checks that may be performed under OAR 407-007-0000 to 407-007-0100 however criminal records checks may occur concurrently with abuse checks performed under these rules and may share similar processes.

History

Statutory/Other Authority: ORS 409.027 & 409.050
Statutes/Other Implemented: ORS 409.027 & 409.050
DHSD 15-2017, amend filed 11/29/2017, effective 12/01/2017
Reverted to DHSD 2-2010, f. & cert. ef. 3-29-10
Suspended by DHSD 2-2016(Temp), f. & cert. ef.1-14-16 thru 7-11-16
DHSD 2-2010, f. & cert. ef. 3-29-10
DHSD 8-2009(Temp), f. & cert. ef. 10-1-09 thru 3-29-10

Or. Admin. R. 407-007-0410 Definitions

In addition to the definitions in OAR 125-007-0210 and 407-007-0010, the following definitions apply to OAR 407-007-400 to 407-007-0460:

(1) “Closed case” means an abuse check that has been closed without a fitness determination.

(2) “Director” means the Department’s Director or designee.

(3) "Founded or substantiated” has the meanings given in the Department’s administrative rules corresponding to the setting in which the abuse was alleged or investigated.

(4) “Potentially disqualifying abuse” means abuse in which the finding of an abuse investigation report is founded or substantiated and the subject individual is determined to have been responsible for the abuse. If formal review or appeal rights are offered to the alleged perpetrator (the subject individual), BCU may consider the abuse as potentially disqualifying after these rights are completed or timed out.

(5) “Subject individual (SI)” means an individual on whom the Department may conduct an abuse check. An SI includes any of the following:

(a) A Department employee.

(b) An individual who has been offered employment by the Department.

(d) A Department client who is placed in the Work Experience or JOBS Plus program at a Department site.

(A) May have contact with clients;

(D) Has access to property held in trust or to private property in the temporary custody of the state;

(E) Has payroll or fiscal functions or responsibility for:

(i) Receiving, receipting or depositing money or negotiable instruments;

(ii) Billing, collections, setting up financial accounts, or other financial transactions; or

(iii) Purchasing or selling property;

(F) Provides security, design or construction services for government buildings, grounds, or facilities;

(G) Has access to critical infrastructure or secure facilities information; or

(H) Is providing information technology services and has control over or access to information technology systems.

(f) Any individual applying for employment or a volunteer placement or any employee, volunteer, contractor, or employee of any contractor in any of the following:

(A) A State-operated or Authority-contracted secure residential treatment facility;

(B) A State-operated residential training home within the Department’s Stabilization and Crisis Unit (SACU);

History

Statutory/Other Authority: ORS 409.027, 409.050 & 413.036
Statutes/Other Implemented: ORS 409.027, 409.050, 413.036 & 409.025
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 10-2018, amend filed 06/29/2018, effective 06/29/2018
DHSD 16-2017, temporary amend filed 12/27/2017, effective 01/01/2018 through 06/29/2018
DHSD 15-2017, amend filed 11/29/2017, effective 12/01/2017
DHSD 2-2010, f. & cert. ef. 3-29-10
DHSD 8-2009(Temp), f. & cert. ef. 10-1-09 thru 3-29-10

Or. Admin. R. 407-007-0420 Reporting Abuse Allegations Required

(1) This rule applies to any SI who is:

(a) A current Department employee;

(b) A current Department volunteer; or

(c) An individual seeking Department employment or volunteer placement, who has been offered Department employment or volunteer placement, pending the completion of the abuse check process.

(d) An employee of any contractor in any of the following:

(A) A State-operated or Authority-contracted secure residential treatment facility;

(B) A State-operated residential training home within SACU;

(2) An SI shall notify the Office of Human Resources within five calendar days of being notified that he or she has been identified as an alleged perpetrator, reported perpetrator, or accused person in an abuse investigation.

History

Statutory/Other Authority: ORS 409.027 & 409.050
Statutes/Other Implemented: ORS 409.027 & 409.050
DHSD 10-2018, amend filed 06/29/2018, effective 06/29/2018
DHSD 16-2017, temporary amend filed 12/27/2017, effective 01/01/2018 through 06/29/2018
DHSD 15-2017, amend filed 11/29/2017, effective 12/01/2017
DHSD 2-2010, f. & cert. ef. 3-29-10
DHSD 8-2009(Temp), f. & cert. ef. 10-1-09 thru 3-29-10

Or. Admin. R. 407-007-0430 Applicants to the Department

(1) Subject to any applicable collective bargaining agreements, this rule applies to any SI who is:

(a) Offered employment or volunteer placement with the Department;

(b) Offered a change in employment or volunteer placement within the Department.

(A) A State-operated or Authority-contracted secure residential treatment facility;

(B) A State-operated residential training home within SACU;

(2) The Department requires an SI to have an abuse check, along with a criminal records check under OAR 407-007-0000 to 407-007-0100 resulting in one final fitness determination, in the following circumstances:

(a) An SI is offered employment, volunteer placement, or work under a contract with the Department.

(b) An SI is currently employed by or volunteering with the Department and is offered a new position within the Department. A change in a position requiring an abuse check may be due to but not limited to promotion, transfer, demotion, re-employment, job rotation, developmental assignment, restoration, bumping, or recall. For the abuse check to be required, there must be, as determined by the Office of Human Resources:

(A) A significant change in position duties or responsibilities; or

(B) A change in position classification.

(3) Using identifying information submitted to the Department, the Department shall conduct an abuse check to determine if the SI has potentially disqualifying abuse.

(a) In order to complete an abuse check and fitness determination, the Department may require additional information from the SI including but not limited to additional background information or documentation regarding circumstances since the abuse occurred.

(b) If an SI is a represented Department employee, the process for obtaining additional information through investigatory interviews shall adhere to collective bargaining agreements on investigatory interviews.

(4) The Department shall determine whether a start date for an SI may be set based on the SI’s disclosures, a preliminary review of Oregon criminal history and an abuse check.

(5) If an SI has potentially disqualifying abuse, the Department shall conduct a weighing test in order to make a fitness determination. Factors to consider in a weighing test include but are not limited to:

(a) The details regarding the abuse including but not limited to:

(A) Circumstances leading to the incident of abuse;

(B) The nature or type of abuse; and

(b) The date of abuse incident and abuse investigation, and the age of the SI at the time of the abuse.

(c) If there are more than one incident of potentially disqualifying abuse (or there is potentially disqualifying abuse and also potentially disqualifying criminal history as described in OAR 407-007-0041 and 407-007-0050), the timeline, frequency and relation between potentially disqualifying history.

(d) The quality of the abuse investigation including, if applicable, any exhibits and related documents with consideration to completeness, objectivity, and sufficiency.

(e) Due process provided to the SI after the abuse investigation.

(f) Required conditions and action resulting from the founded or substantiated abuse that would allow for reinstatement of the SI in the position including but not limited to training, counseling, corrective or disciplinary action, and the SI’s compliance.

(g) The impact of cultural or societal forces such as structural racism or poverty and other impacts to marginalized communities, upon the subject individual and whether those forces contributed to the circumstances leading to potentially disqualifying abuse.

(h) Circumstances related to the SI including but not limited to work history, education history, and other personal information provided by the SI.

(i) Changes in circumstances subsequent to the potentially disqualifying abuse.

(j) The relevancy of the abuse to the position the SI is seeking.

(6) Following an abuse check, the Department shall complete the fitness determination.

(a) The Department may approve an SI if:

(A) The SI has no potentially disqualifying abuse; or

(B) The SI has potentially disqualifying abuse but, after a weighing test, the Department determines that more likely than not the SI poses no risk to the Department, its clients, or vulnerable persons; or

(C) The SI is applying for employment, volunteer placement, or contract placement when applicable, with the Department’s Child Welfare division and has potentially disqualifying abuse where the victim is a child, when:

(i) After a weighing test, the Department determines that more likely than not the SI poses no risk to the Department, its clients, or vulnerable persons; and

(ii) BCU has consulted with Child Welfare executive staff regarding the child abuse considered in the weighing test and the final fitness determination outcome.

(b) The Department shall deny an SI who has potentially disqualifying abuse and, after a weighing test, the Department determines that more likely than not the SI poses a risk to the Department, its clients, or vulnerable individuals.

(7) When the application is closed without a final fitness determination, the SI does not have a right to contest the closed case. The Department shall close the case if an SI:

(a) Discontinues the abuse check application;

(b) Fails to cooperate with the abuse check process; or

(8) Upon completion of a fitness determination, the Department shall provide written notice to the SI. The notice shall:

(a) Be in a Department approved format; and

(b) Include an effective date of action.

(A) Include the reasons for the denial;

(B) Include information regarding appeal rights; and

(C) Include a statement that the notice becomes a final order in the event of a withdrawal during the contested case hearing process or a failure to appear at the contested case hearing.

(9) When an SI is denied or a case is closed, the individual may not work, volunteer, be employed, or otherwise perform in the position that the SI is seeking. If a current Department employee or volunteer is denied, the Office of Human Resources shall determine if the SI may continue in the current position that the SI is seeking to change.

(a) For Department employees, if disciplinary action up to and including dismissal is appropriate, the action shall be taken in accordance with:

(A) Relevant collective bargaining contractual provisions;

(B) Statutory provisions for unrepresented or management services employees; or

(b) For an SI who is a current volunteer or Work Experience client, a denial or closed case shall result in immediate dismissal.

(10) The Department shall document fitness determinations in writing and include all necessary details including but not limited to the potentially disqualifying abuse, the weighing test, or the reasons for a closed case.

(11) The Department shall make new fitness determinations for each application. The outcome of previous fitness determinations does not ensure the same outcome of a new fitness determination.

(12) Only an SI subject to this rule may contest the fitness determination with the following exceptions. The following SIs do not have the right to contest the fitness determination:

(a) SIs offered volunteer placement with the Department; or

(b) SIs offered a change in volunteer placement within the Department.

(13) The appeal process, pursuant to ORS chapter 183 and OAR 407-007-0080, shall proceed if the SI requests a contested case hearing.

(a) SIs must request a hearing within 30 calendar days after the effective date of action listed on the notice of fitness determination.

(b) The SI may not challenge a finding of substantiated abuse that was a basis for the adverse outcome under this rule. The SI has the right to contest the weight the Department has given to:

(A) The evidence;

(B) The factors used in the weighing test; or

(c) The only remedy that may be awarded is a fitness determination that the SI is approved or denied. Under no circumstances shall the Department be required to place an SI in any position, nor shall the Department be required to accept services or enter into a contractual agreement with an SI.

(d) An SI may not have access to confidential information contained in abuse investigation reports or other records collected or developed during the abuse check process without a protective order limiting further disclosure of the information.

(A) A protective order issued pursuant to this section must be issued by an administrative law judge as provided in OAR 137-003-0570(8) or by a court of law.

(B) In conjunction with a protective order issued pursuant to this section, individually identifying information relating to clients, witnesses, and other persons identified in abuse investigation reports or other records collected, or developed during the abuse check process shall be redacted prior to disclosure, except for the information identifying the SI.

(14) An SI in volunteer or Work Experience placements must have a new abuse check every three years from the date of placement.

History

Statutory/Other Authority: 409.027, 413.036 & 409.050
Statutes/Other Implemented: 409.027, 413.036 & 409.010
DHS 8-2024, amend filed 03/26/2024, effective 03/27/2024
DHS 5-2023, temporary amend filed 10/04/2023, effective 10/04/2023 through 03/30/2024
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 10-2018, amend filed 06/29/2018, effective 06/29/2018
DHSD 16-2017, temporary amend filed 12/27/2017, effective 01/01/2018 through 06/29/2018
DHSD 15-2017, amend filed 11/29/2017, effective 12/01/2017
DHSD 2-2010, f. & cert. ef. 3-29-10
DHSD 8-2009(Temp), f. & cert. ef. 10-1-09 thru 3-29-10

Or. Admin. R. 407-007-0440 Current Employees of the Department

(1) This rule applies to any SI who is a current Department employee.

(2) If an SI is identified as an alleged perpetrator, reported perpetrator, or accused person in an abuse investigation, all relevant abuse investigation and licensing rules shall apply.

(3) The Department shall apply relevant program administrative due process policies if the SI is identified as responsible in a founded or substantiated abuse investigation.

(4) If a current SI is identified as an alleged perpetrator, reported perpetrator, or accused person in an abuse investigation, the Office of Human Resources may initiate an investigation during or following the investigation of the alleged abuse to determine whether to take any action, up to and including dismissal from employment.

(a) If the abuse investigation results in potentially disqualifying abuse, the Office of Human Resources shall initiate an investigation which may include initiating a new abuse check and conducting a weighing test as described in OAR 407-007-0430. The purpose of the investigation is to determine whether any action, up to and including dismissal, is justified.

(b) If the Office of Human Resources learns of potentially disqualifying abuse from previous investigations, the Office of Human Resources may initiate an investigation, to determine fitness for the position, which may include initiating a new abuse check and conducting a weighing test as described in OAR 407-007-0430. The purpose of the investigation is to determine whether any action, up to and including dismissal is justified.

(c) For Department employees, if disciplinary action up to and including dismissal, is appropriate, the action shall be taken in accordance with:

(A) Relevant collective bargaining agreements;

(B) Statutory provisions for unrepresented or management services employees; or

(5) A pending related action, such as a civil, criminal, juvenile, or administrative proceeding in which the allegations of abuse are at issue shall not automatically be grounds for the SI to seek to detain or stay either the review of the founded or substantiated disposition or any resulting disciplinary action. The Department may detain or stay either the review of the founded or substantiated abuse disposition or any resulting disciplinary action based on the pending related action such as a civil, criminal, juvenile, or administrative proceeding in which the allegations of abuse are at issue.

History

Statutory/Other Authority: ORS 409.027 & 409.050
Statutes/Other Implemented: ORS 409.027 & 409.050
DHSD 15-2017, amend filed 11/29/2017, effective 12/01/2017
DHSD 2-2010, f. & cert. ef. 3-29-10
DHSD 1-2010(Temp), f. & cert. ef. 1-8-10 thru 3-29-10
DHSD 8-2009(Temp), f. & cert. ef. 10-1-09 thru 3-29-10

Or. Admin. R. 407-007-0445 Employees Who Apply or Are Hired at SACU after 1/1/2018

(1) This rule applies to an SI who is:

(a) Hired after 1/1/2018 at SACU; or

(b) Seeking Department employment to work at SACU after 1/1/2018.

(2) If the Department determines that an SI has abuse that meets all the following criteria, the Department may not hire or retain the SI to work in SACU:

(a) The abuse investigation resulted in an outcome of substantiated on or after 1/1/2018.

(b) The abuse meets definitions in ORS 430.735 and is one of the following types:

(A) Any physical injury caused by other than natural or accidental means, or that appears to be at variance with the explanation given of the injury.

(B) Willful infliction of physical pain or injury.

(D) Neglect, specifically the withholding of services necessary to maintain the health and well-being of an adult which leads to physical harm of an adult.

(E) Financial exploitation, specifically:

(i) Wrongfully taking the assets, funds or property belonging to or intended for the use of a person with a developmental disability; or

(ii) Misappropriating, misusing or transferring without authorization any money from any account held jointly or singly by a person with a developmental disability;

(F) Any death caused by other than natural or accidental means.

(c) During the investigation, the investigator provided notice of the allegation to the SI (as the alleged perpetrator, reported perpetrator, respondent, or accused person) and offered the SI the opportunity to participate in the investigation.

(d) The investigation results in an outcome of substantiated, finding the SI to be responsible for the abuse.

(e) The Department provided written notice of the outcome of the investigation to the SI, including an explanation of any due process rights.

(f) The period of time for the Department’s due process has been completed resulting in a final order of substantiated abuse.

(3) The SI is not eligible for a fitness determination with a weighing test under ORS 181A.195 or OAR 407-007-0430 regardless of any other potentially disqualifying abuse the SI has. The Department must find the SI ineligible due to OAR 407-007-0445. The SI has no hearing rights regarding employment if found ineligible due to OAR 407-007-0445. The Department shall provide written notice to the SI at the address provided by the SI.

(4) If the abuse does not meet all the requirements in section (2), then OAR 407-007-0430 or OAR 407-007-0440 apply.

History

Statutory/Other Authority: ORS 409.027 & 409.050; Or Law 2017 ch 378
Statutes/Other Implemented: ORS 409.027 & 409.050 & Or Law 2017- ch 378
DHSD 10-2018, adopt filed 06/29/2018, effective 06/29/2018
DHSD 16-2017, temporary adopt filed 12/27/2017, effective 01/01/2018 through 06/29/2018

Or. Admin. R. 407-007-0450 Current Volunteers of the Department

(1) This rule applies to any SI who is a current Department volunteer.

(2) If an SI is identified as an alleged perpetrator, reported perpetrator, or accused person in an abuse investigation, the Office of Human Resources may remove the SI from placement and duties at any time during the investigation or any subsequent review.

(3) If removed from the placement, the SI may reapply for a placement and be subject to a new background check in accordance with OAR 407-007-0000 to 407-007-0100 and OAR 407-007-0430.

History

Statutory/Other Authority: ORS 409.027, 409.050
Statutes/Other Implemented: ORS 409.027 & 409.050
DHSD 15-2017, amend filed 11/29/2017, effective 12/01/2017
DHSD 2-2010, f. & cert. ef. 3-29-10
DHSD 8-2009(Temp), f. & cert. ef. 10-1-09 thru 3-29-10

Or. Admin. R. 407-007-0455 Current Contract SIs of the Department

(1) This rule applies to any SI who is an employee of any contractor in any of the following:

(a) A State-operated or Authority-contracted secure residential treatment facility;

(b) A State-operated residential training home within the Department’s Stabilization and Crisis Unit;

(2) If an SI is identified as an alleged perpetrator, reported perpetrator, respondent, or accused person in an abuse investigation, all relevant abuse investigation and licensing rules shall apply.

(3) The Department shall apply relevant program administrative rule due process if the SI is identified as responsible in a founded or substantiated abuse investigation.

(4) If an SI is identified as an alleged perpetrator, reported perpetrator, respondent, or accused person in an abuse investigation, the Office of Human Resources may remove the SI from contracted work at any time during the investigation.

(5) The Office of Human Resources shall require a new background check in accordance with OAR 407-007-0000 to 407-007-0100 and OAR 407-007-0430 under the following circumstances:

(a) The abuse investigation results in potentially disqualifying abuse; and

(b) The SI remains an employee of the contractor; and

History

Statutory/Other Authority: ORS 409.027, 409.050
Statutes/Other Implemented: ORS 409.027 & 409.050
DHSD 15-2017, adopt filed 11/29/2017, effective 12/01/2017

Or. Admin. R. 407-007-0460 Confidentiality

(1) The Department shall maintain abuse investigation reports as confidential pursuant to ORS 409.027, 413.036 and other applicable state and federal laws and rules.

(2) All abuse information and other records collected or developed during the abuse check process shall be kept confidential and disseminated only on a need-to-know basis as permitted by applicable Oregon statutes and administrative rules.

(3) Abuse investigation reports may be used among the organizational units of the Department for the purpose of screening SIs necessary to protect the Department’s vulnerable clients from abuse.

(4) The Department may use abuse and neglect reports for decisions directly affecting vulnerable individuals if the vulnerable individual is also an SI.

History

Statutory/Other Authority: ORS 409.027, 409.050 & 413.036
Statutes/Other Implemented: ORS 409.027, 409.050 & 413.036
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 15-2017, amend filed 11/29/2017, effective 12/01/2017
DHSD 2-2010, f. & cert. ef. 3-29-10
DHSD 8-2009(Temp), f. & cert. ef. 10-1-09 thru 3-29-10

Or. Admin. R. 407-007-0600 Purpose

(1) The purpose of these rules, OAR 407-007-0600 to 407-007-0640, is to provide for procedures and standards for the background check registry pursuant to ORS 443.006.

(2) These rules apply to subject individuals (SIs), as defined in OAR 407-007-0210, who work or seek to work in facilities and positions subject to these rules who provide care.

History

Statutory/Other Authority: ORS 181A.195, 181A.200, 183.459, 409.025, 409.027, ORS 409.050, 410.020, 411.060, 413.036, 443.006, 443.725 & 443.735
Statutes/Other Implemented: ORS 181A.195, 181A.200, 183.459, 409.025, 409.027, 411.060, 443.006, 409.010 & 443.004
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 5-2018, amend filed 03/13/2018, effective 03/13/2018
DHSD 11-2017(Temp), f. & cert. ef. 9-15-17 thru 3-13-18
DHSD 3-2014, f. & cert. ef. 12-1-14

Or. Admin. R. 407-007-0610 Temporary rule language in effect until 12/01/2026. Definitions

In addition to the definitions in OAR 125-007-0210, 407-007-0010, and 407-007-0210, the following definitions apply to OAR 407-007-0600 to 407-007-0640:

(1) “Background check” means a criminal records check and an abuse check pursuant to OAR 407-007-0210 to 407-007-0370 and any additional checks as required per federal code or Oregon statute.

(2) “Background Check Registry (Registry)” means a comprehensive listing of subject individuals who meet the requirements of these rules.

(3) “Facility” means:

(a) A long term care facility in Oregon as defined in ORS 442.015 including skilled nursing facilities and intermediate care facilities.

(b) A residential facility as defined in ORS 443.400 including assisted living facilities, residential care facilities, residential training facilities, residential treatment facilities, residential training homes, residential treatment homes. Under these rules, “residential facility” does not include a secure residential treatment facility or residential training facility located on an Oregon State Hospital campus or otherwise operated by the state.

(d) Any programs licensed, certified, endorsed, or otherwise regulated by the Department of Human Services that deliver services to individuals with intellectual or developmental disabilities.

(4) “Good Standing,” defined in OAR 407-007-0210, means the SI is in an approved status on the registry and may continue to work without active supervision (see OAR 407-007-0315(7)) in an approved status in any current position listed for the SI.

(5) “Homecare worker” has the same meaning given in ORS 410.600, including but not limited to personal support workers and personal care attendants.

(6) “Permanent hire date” means:

(a) The date that the background check has been approved or has a restricted approval, for the purposes of tracking the background check and any future required rechecks.

(b) For SIs with portability, the permanent hire date also means the date entered into ORCHARDS for starting in a new position.

(7) “Portability,” defined in OAR 407-007-0210, means the ability of an SI to use one approved background check for a defined period of time for immediate hirability for a position offered by a QE within a group as determined by the Department.

(8) “Position” means the position listed in the background check request which determines whether the individual is an SI under OAR 407-007-0210.

(9) “Qualified entity (QE)” means:

(a) A facility;

(b) An Area Agency on Aging (AAA) office or a Department or Oregon county Aging and People with Disabilities program branch which enrolls homecare workers;

(d) An agency, program or county office in Oregon serving individuals with mental illness which assists an individual to complete personal support worker enrollment; or

(e) The Department’s Children’s Intensive In-home Services program in accordance with OAR 411-0300-0100 to 411-300-0205.

(f) A long term care referral entity pursuant to OAR 411-058-0000 to 411-058-0100.

(g) A staffing agency which provides staffing services to long term care skilled nursing facilities, residential care facilities, or assisted living facilities; and completed background checks through BCU in accordance with OAR 407-007-0200 to 407-007-0370.

(h) An in-home care agency as defined by ORS 443.305 which has enrolled to deliver Medicaid funded services as described in OAR 411-033-0000 to 411-033-0030 for Department clients.

History

Statutory/Other Authority: ORS 181A.195, 181A.200, 409.025, 409.027, ORS 409.050, 410.020, 411.060, 413.036, 443.006, 443.725, 443.735 & Or. Law 2026 ch. 59 (2026 HB 4115)
Statutes/Other Implemented: ORS 181A.195, 181A.200, 409.025, 409.027, 411.060, 443.006, 409.010, 443.004 & Or. Law 2026 ch. 59 (2026 HB 4115)
DHS 1-2026, temporary amend filed 05/29/2026, effective 06/05/2026 through 12/01/2026
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 31-2018, amend filed 11/28/2018, effective 12/01/2018
DHSD 13-2018, temporary amend filed 06/29/2018, effective 07/01/2018 through 12/27/2018
DHSD 5-2018, amend filed 03/13/2018, effective 03/13/2018
DHSD 11-2017(Temp), f. & cert. ef. 9-15-17 thru 3-13-18
DHSD 3-2014, f. & cert. ef. 12-1-14

Or. Admin. R. 407-007-0620 Temporary rule language in effect until 12/01/2026. Background Check Registry

(1) The background check registry includes SIs who work or seek to work as:

(a) An employee, contractor, temporary worker, or volunteer in a facility or qualified entity; or

(b) A homecare worker, including the position of personal support worker.

(c) An employee providing care to clients of the Department’s Aging and People with Disabilities (APD) programs who works for an in-home care agency as defined by ORS 443.305 and OAR chapter 333, division 536, which has enrolled to deliver Medicaid funded services as described in OAR 411-033-0000 to 411-033 to 0030 for Department clients;

(d) An employee, contractor, temporary worker, or volunteer in an agency certified, licensed, or otherwise regulated by the Department or the Authority where the Department or Authority has indication in the Oregon Administrative Rules that govern the certification, licensure, or regulation of the agency by the Department or the Authority that placement on the registry or portability is allowed for the SIs; or

(e) An employee, contractor, temporary worker, or volunteer in an agency certified, licensed, or otherwise regulated by the Department or the Authority where the Department or Authority has a written agreement with BCU to allow portability. The written agreement must include:

(A) A citation of the Oregon Administrative Rules that govern the certification, licensure, or regulation of the agency by the Department or the Authority; and

(B) The number of years of the SI’s background check may be used for portability before a recheck is required.

(2) The background check registry does not include SIs who work or seek to work as an employee or volunteer for:

(a) A community developmental disabilities program (OAR 411-320-0010 to 411-320-0200);

(b) A developmental disabilities brokerage (OAR 411-340-0010 to 411-340-0180)

(3) An SI on the registry has a background check completed pursuant to OAR 407-007-0200 to 407-007-0370. If an SI has an approved background check, the Department may also determine that the SI has portability.

(4) The registry includes information regarding the SI including but not limited to:

(a) Name and other identifying information.

(b) Date of background check outcome.

(d) The position and description of duties being considered for the background check..

(e) If the background check outcome is approved and BCU determines that SI has portability:

(A) The name of any QE that hires the SI

(B) The position and descriptions of duties for which a QE has hired the SI.

(D) The last day of work for any position into which a QE has hired the SI once the SI leave the position.

(f) If the background check outcome is approved or approved with restrictions and BCU determines that SI does not have portability:

(A) The permanent hire date for the position into which the QE has hired the SI.

(B) The last day of work for the position into which the QE has hired the SI once the SI leaves the position..

(g) If the background check outcome is denied, ineligible, or there is no fitness determination for any reason, and the SI was hired on a preliminary basis for any length of time:

(A) The preliminary hire date for the position into which the QE has hired the SI; and

(B) The last day of work for the position into which the QE has hired the SI once the SI leaves the position.

(5) The approval of a background check application for an SI subject to this section lasts for three years, effective for any completion of an SI’s first or renewing background check approval on or after June 5, 2026 with the implementation of ORS 443.004(2)(b) (Or Law 2026 ch. 59, section 1 (2026 HB 4115)). A criminal records check, as part of a new background check, may be completed more often only if the Department:

(a) Receives credible evidence of a new criminal conviction;

(b) Receives credible evidence potentially disqualifying abuse;

(d) Is notified that a SI has changed positions or duties for which there are different criminal records check requirements.

(e) Determines that it would be burdensome for an SI to wait for a new criminal records check, including but not limited to:

(A) The Department receives credible evidence of a change in circumstances that could positively impact a previous fitness determination; or

(B) The SI is seeking certification, licensure, or some other qualification associated with a position that requires a background check.

(C) The SI needs a recheck for recredentialing which must be submitted and completed before or by the three-year expiration date of the background check approval.

(6) BCU must either immediately remove an SI's portability, revoke an SI's good standing, or both if:

(a) BCU received credible evidence indicating that SI has any new potentially disqualifying convictions or conditions; or

(b) A subsequent background check results in any outcome other than approved.

(7) To remain in good standing on the registry or to have portability:

(a) The SI must have an approved background check completed pursuant to OAR 407-007-0200 to 407-007-0370 within a defined timeframe, based on federal or state requirements, populations served, types of QEs where the position is held, or types of position; or

(b) If within 120 days of expiration from the registry:

(A) The SI’s qualified entity must submit a new background check request pursuant to OAR 407-007-0200 to 407-007-0370 no later than the SI’s expiration date or as required by the collective bargaining agreement or program rules; and

(B) In the new background check request, the Department finds no information that would lead to a revocation of the SI working pursuant to OAR 407-007-0315.

(8) If the SI is required to have a Provider Enrollment Agreement filed with the Department, the SI must have a completed background check pursuant to OAR 407-007-0200 to 407-007-0370 with an outcome of approved or approved with restrictions within the expiration requirements of the Provider Enrollment Agreement.

History

Statutory/Other Authority: ORS 181A.195, 181A.200, 409.025, 409.027, ORS 409.050, 410.020, 411.060, 413.036, 443.006, 443.725, 443.735 & Or. Law 2026 ch. 59 (2026 HB 4115)
Statutes/Other Implemented: ORS 181A.195, 181A.200, 409.025, 409.027, 411.060, 443.006, 409.010, 443.004 & Or. Law 2026 ch. 59 (2026 HB 4115)
DHS 1-2026, temporary amend filed 05/29/2026, effective 06/05/2026 through 12/01/2026
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 5-2018, amend filed 03/13/2018, effective 03/13/2018
DHSD 11-2017(Temp), f. & cert. ef. 9-15-17 thru 3-13-18
DHSD 3-2014, f. & cert. ef. 12-1-14

Or. Admin. R. 407-007-0630 Reporting Requirements for Qualified Entities

(1) ORCHARDS users for qualified entities, facilities and homecare workers may access the registry online through ORCHARDS.

(2) If an SI is not found in a search of the online registry, ORCHARDS users may enter a background check request in ORCHARDS to determine if the SI may be placed on the registry to work.

(3) QEs must provide BCU with the following information regarding an SI on the registry including but not limited to:

(a) Permanent hire date of SI for each position, to be added in ORCHARDS.

(b) Report of any potentially disqualifying convictions or conditions (see OAR 407-007-0281 and 407-007-0290) while the SI is still working for the QE, to be reported directly to BCU. Based on this information BCU may require a new background check on the SI, pursuant to OAR 407-007-0220.

(d) Change of position with the QE, to be added in ORCHARDS.

History

Statutory/Other Authority: ORS 181A.195, 181A.200, 183.459, 409.025, 409.027, ORS 409.050, 410.020, 411.060, 413.036, 443.004, 443.725, 443.735 & 443.006
Statutes/Other Implemented: ORS 181A.195, 181A.200, 183.459, 409.025, 409.027, 411.060, 443.004, 443.725, 443.735, 409.010 & 443.006
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 5-2018, amend filed 03/13/2018, effective 03/13/2018
DHSD 11-2017(Temp), f. & cert. ef. 9-15-17 thru 3-13-18
DHSD 3-2014, f. & cert. ef. 12-1-14

Or. Admin. R. 407-007-0640 Temporary rule language in effect until 12/01/2026. Access and Release of Information

(1) BCU shall maintain the registry through ORCHARDS. ORCHARDSusers for facilities and homecare workers may access the registry online through ORCHARDS.

(2) An SI may request in writing that BCU provide documentation of information included in the registry about the SI.

History

Statutory/Other Authority: ORS 181A.195, 181A.200, 183.459, 409.025, 409.027, ORS 409.050, 410.020, 411.060, 413.036, 443.006, 443.725 & 443.735
Statutes/Other Implemented: ORS 181A.195, 181A.200, 183.459, 409.010, 409.025, 409.027, 411.060, 443.004 & 443.006
DHS 1-2026, temporary amend filed 05/29/2026, effective 06/05/2026 through 12/01/2026
DHSD 5-2018, amend filed 03/13/2018, effective 03/13/2018
DHSD 11-2017(Temp), f. & cert. ef. 9-15-17 thru 3-13-18
DHSD 3-2014, f. & cert. ef. 12-1-14

Division 10 PRE-EMPLOYMENT/EMPLOYMENT SCREENING

Or. Admin. R. 407-010-0001 Policies and Procedures to Guide Use of Information on OYA and DHS Employees Who are Subjects of a CPS Assessment

The DHS Office of Human Resources will develop policies and procedures to guide use of information provided by CPS supervisors in relation to the requirements of OAR 413-015-0405(9).

History

Statutory/Other Authority: ORS 418.005
Statutes/Other Implemented: ORS 418.005
DHSD 2-2006, f. & cert. ef. 3-1-06

Division 12 RESTRICTING ACCESS TO DEPARTMENT OF HUMAN SERVICES PREMISES AND EMPLOYEES

Or. Admin. R. 407-012-0005 Definitions

The following definitions apply to OAR 407-012-0005 through 407-012-0025:

(1) “Department” means the Department of Human Services.

(2) “Division” means every individual organizational unit within the Department of Human Services.

(3) “Employee” means individuals acting in the course and scope of their duties who are on the State of Oregon payroll, contract employees, employees of temporary service agencies, and volunteers. It also includes employees of other government or social service agencies who, at the time they are accompanying a Department employee on Department business, are the target of conduct described in OAR 407-012-0010.

(4) “Premises” means any land, building, facility, and other property owned, leased, or in the possession of, and used or controlled by the Department. When the Department occupies space in a building occupied by multiple tenants, the definition includes the common areas of the building used by all tenants such as, but not limited to, restrooms, hallways, and food service areas.

(5) “Restriction of Access” means the Department has limited an individual’s access to specific Department premises, employees, or methods of communication.

(6) “Weapon” includes, but is not limited to:

(a) A dangerous or deadly weapon as defined in ORS 161.015;

(b) Any other object or substance used in a manner that compromises the safety of Department employees or visitors on Department premises;

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.050 & 654.010
DHSD 11-2007, f. 11-30-07, cert. ef. 12-1-07

Or. Admin. R. 407-012-0010 Prohibited Conduct

(1) Conduct that may result in restriction of access includes, but is not limited to the following:

(a) Causing or threatening to cause physical injury to Department employees or visitors;

(b) Engaging in actions which compromise the safety or health of Department employees or visitors;

(c) Causing or threatening to cause harm to the family or property of an employee or visitors through written, electronic, or verbal communication;

(d) Causing or threatening to cause damage to Department premises;

(e) Bringing a deadly or dangerous weapon onto the Department’s premises, unless authorized by ORS chapter 166 to carry a handgun;

(f) Displaying, attempting, or threatening to use any weapon, on or off Department premises, that compromises the safety of Department employees or visitors;

(g) Engaging in harassing conduct as defined in ORS 166.065.

(h) Engaging in telephonic harassment as defined in ORS 166.090.

(2) The conduct listed in section (1) is also prohibited if it occurs during employees’ off-work hours and off Department premises and the prohibited conduct is related to the employee’s work with the Department.

(3) Prior to issuing a restriction of access notice, the Department will make an individualized assessment as to whether the conduct listed in section (1) of this rule is a result of a disability of which the Department has knowledge and whether the conduct is a “direct threat” to others as described in OAR 407-005-0000 through 407-005-0030. If the Department determines the disabled individual’s conduct is not a direct threat, the Department will explore the possibility of a reasonable accommodation to mitigate the safety risk.

(4) The prohibitions on conduct in this rule do not apply to individuals who are residents of a Department-operated residential facility.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.050 & 654.010
DHSD 11-2007, f. 11-30-07, cert. ef. 12-1-07

Or. Admin. R. 407-012-0015 Continuation of Eligible Services

(1) An individual whose access has been restricted by the Department will continue to be provided services for which the individual meets program eligibility requirements by an alternate and effective method of communication as determined by the Department.

(2) Alternate methods may include telephone, electronic mail, written communication, meeting at a designated secure site, or through the individual’s representative.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.050 & 654.010
DHSD 11-2007, f. 11-30-07, cert. ef. 12-1-07

Or. Admin. R. 407-012-0020 Notification

(1) If the Department determines that it is necessary to restrict access or the methods of communication because of prohibited conduct, the individual will be provided written notification, signed by the assistant director or deputy assistant director of the affected division, and sent by certified mail or other traceable means. The notice will describe the following:

(a) Conduct giving rise to the restrictions;

(b) The specific premises or parts of premises from which the individual is excluded; or the forms of communication which are restricted;

(d) Contact information for services or appointment scheduling;

(e) The availability of the review process, including notification that individuals with disabilities are entitled to request modification;

(f) The potential criminal consequences for violating the notice of restriction of access; and

(g) The law enforcement agency being notified.

(2) The notice will be effective upon issuance.

(3) Restrictions on access to Department premises or methods of communication will remain in place until the Department determines the individual no longer poses a threat and issues an official notification of removal.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.050 & 654.010
DHSD 11-2007, f. 11-30-07, cert. ef. 12-1-07

Or. Admin. R. 407-012-0025 Department Review

(1) The Department will establish an internal review process to ensure that a notice of restriction of access is warranted prior to issuing a written notice of restriction of access.

(2) Following the Department’s issuance of a notice of restriction of access, the recipient of the notice may request review of the Department’s determination. The request must be submitted to the office of the Director of the Department. The request must be in writing and submitted, by mail or personal delivery, within 15 business days of the date of issuance of the notice of restriction of access. If the request is submitted by mail, it must be postmarked within 15 business days. No particular format is required for the request for review; however, the individual should include specific grounds for requesting the review.

(3) Upon receipt of a request for review, the Director or an assistant director will review the request and issue a written decision. The review may include an informal conference. The decision will be issued within ten days of receipt of the request for review.

(4) The Department’s decision is final.

(5) If the Department’s decision rules in favor of the individual, the restricted individual’s access restriction will be immediately lifted. If the decision is unfavorable to the restricted individual, the restricted individual may seek further review after six months have lapsed since the date of issuance by following the process described in this rule.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.050 & 654.010
DHSD 11-2007, f. 11-30-07, cert. ef. 12-1-07

Division 14 PRIVACY AND CONFIDENTIALITY

Or. Admin. R. 407-014-0000 Definitions

The following definitions apply to OAR 407-014-0000 to 407-014-0070:

(1) “Administrative hearing” means an oral proceeding before an administrative law judge in a contested case hearing.

(2) “Authority” means the Oregon Health Authority.

(3) “Authorization” means permission from an individual or his or her personal representative giving the Department of Human Services (Department) authorization to obtain, release or use information about the individual from third parties for specified purposes or to disclose information to a third party specified by the individual.

(4) “Business associate” means an individual or entity performing any function or activity on behalf of the Authority, including the Department, involving the use or disclosure of protected health information (PHI) and is not a member of the Authority’s workforce.

(a) For purposes of the definition of “business associate,” “function or activity” includes but is not limited to program administration, claims processing or administration, data analysis, utilization review, quality assurance, billing, legal, actuarial, accounting, consulting, data processing, management, administrative, accreditation, financial services, and similar services for which the Authority may contract or obtain by interagency agreement, if access to PHI is involved.

(b) Business associates do not include licensees or providers unless the licensee or provider also performs some function or activity on behalf of the Authority.

(5) “Client” means an individual who requests or receives services from the Department. This includes but is not limited to applicants for or recipients of public assistance, minors and adults receiving protective services, individuals who are committed to the custody of the Department, children in the custody of the Department receiving services on a voluntary basis, and children committed to the custody of the Department.

(6) “Client information” means personal information relating to a client that the Department may maintain in one or more locations and in various forms, reports, or documents, or stored or transmitted by electronic media.

(7) “Collect” or “Collection” means the assembling of personal information through interviews, forms, reports, or other information sources.

(8) “Contract” means a written agreement between the Department and a person or entity setting forth the rights and obligations of the parties including but not limited to contracts, licenses, agreements, interagency agreements, and intergovernmental agreements.

(9) “Correctional institution” means any penal or correctional facility, jail, reformatory, detention center, work farm, halfway house, or residential community program center operated by contract with the federal government, a state, or an Indian tribe for the confinement or rehabilitation of persons charged with or convicted of a criminal offense or other persons held in lawful custody. “Other persons held in lawful custody” include juvenile offenders, adjudicated delinquents, aliens detained awaiting deportation, witnesses, or others awaiting charges or trial.

(10) “Corrective action” means an action that a business associate must take to remedy a breach or violation of the business associate’s obligations under the business associate’s contractual requirement, including but not limited to reasonable steps that must be taken to cure the breach or end the violation.

(11) “Covered entity” means health plans, health care clearinghouses, and health care providers who transmit any health information in electronic form in connection with a transaction that is subject to federal Health Insurance Portability and Accountability Act (HIPAA) requirements, as those terms are defined and used in the HIPAA regulations, 45 CFR parts 160 and 164.

(12) “De-identified data” means client information from which the Department or other entity has deleted, redacted, or blocked identifiers so the remaining information cannot reasonably be used to identify an individual.

(13) “Department” means the Department of Human Services.

(14) “Department workforce” means employees, volunteers, trainees, and other persons whose conduct, in the performance of work for the Department, is under the direction and control of the Department, whether or not they are paid by the Department.

(15) “Disclose” means the release, transfer, relay, provision of access to, or conveying of client information to any individual or entity outside the Department.

(16) “Health care” means care, services, or supplies related to the health of an individual. Health care includes but is not limited to preventive, diagnostic, therapeutic, rehabilitative, maintenance, palliative care, counseling services, assessment, or procedures with respect to the physical or mental condition, or functional status of an individual, or that affects the structure or function of the body and the sale or dispensing of a drug, device, equipment, or other prescribed item.

(17) “Health care operations” means any activities of a covered entity to the extent that the activities are related to health care, Medicaid, or any other health care related programs, services, or activities administered by the covered entity and includes:

(a) Conducting quality assessment and improvement activities, including income evaluation and development of clinical guidelines;

(b) Population-based activities related to improving health or reducing health care costs, protocol development, case management and care coordination, contacting health care providers and patients with information about treatment alternatives, and related functions that do not include treatment;

(c) Reviewing the competence of qualifications of health care professionals, evaluating practitioner, provider, and health plan performance; and conducting training programs in which students and trainees in areas of health care learn under supervision to practice or improve their skills, accreditation, certification, licensing, or credentialing activities;

(d) Underwriting, premium rating, and other activities relating to the creation, renewal, or replacement of a contract for Medicaid or health care related services;

(e) Conducting or arranging for medical review, legal services, and auditing functions, including fraud and abuse detection and compliance programs, and disclosure to the Medicaid Fraud Unit pursuant to 43 CFR part 455.21;

(f) Business planning and development, such as conducting cost-management and planning-related analyses related to managing and operating the covered entity, including administration, development, or improvement of methods of payments or health care coverage; and

(g) Business management and general administrative activities of the covered entity, including but not limited to:

(A) Management activities relating to implementation of and compliance with the requirements of HIPAA;

(B) Customer service, including providing data analysis;

(C) Resolution of internal grievances, including administrative hearings and the resolution of disputes from patients or enrollees regarding the quality of care and eligibility for services; and

(D) Creating de-identified data or a limited data set.

(18) “Health oversight agency” means an agency or authority of the federal government, a state, territory, political subdivision of a state or territory, Indian tribe, or a person or entity acting under a grant of authority from or by contract with the public agency, including employees or agents of the public agency or its contractors or grantees that is authorized by law to oversee the health care system or government programs in which health information is necessary to determine eligibility or compliance, or to enforce civil rights laws for which health information is relevant. When performing these functions, the Department acts as a health oversight agency for the purposes of these rules.

(19) “HIPAA” means the Title II, Subtitle F of the Health Insurance Portability and Accountability Act of 1996, 42 USC 1320d et seq, and the federal regulations adopted to implement the Act.

(20) “Individual” means the person who is the subject of information collected, used, or disclosed by the Department.

(21) “Individually identifying information” means any single item or compilation of information or data that indicates or reveals the identity of an individual, either specifically (such as the individual’s name or social security number), or from which the individual’s identity can be reasonably ascertained.

(22) “Information” means personal information relating to an individual, a participant, or a Department client.

(23) “Inmate” means a person incarcerated in or otherwise confined in a correctional institution. An individual is no longer an inmate when released on parole, probation, supervised release, or is otherwise no longer in custody.

(24) “Institutional Review Board (IRB)” means a specially constituted review body established or designated by an entity in accordance with 45 CFR part 46 to protect the welfare of human subjects recruited to participate in biomedical or behavioral research. The IRB must be registered with the Office for Human Research Protection.

(25) “Law enforcement official” means an officer or employee of any agency or authority of the federal government, a state, territory, political subdivision of a state or territory, or Indian tribe who is empowered by law to:

(a) Investigate and conduct an official inquiry into a potential violation of law; or

(b) Prosecute or otherwise conduct a criminal, civil, or administrative proceeding arising from an alleged violation of law.

(26) “Licensee” means a person or entity that applies for or receives a license, certificate, registration, or similar authority from the Department to perform or conduct a service, activity, or function.

(27) “Minimum necessary” means the least amount of information, when using or disclosing confidential client information that is needed to accomplish the intended purpose of the use, disclosure, or request.

(28) “Participant” means individuals participating in Department population-based services, programs, and activities that serve the general population, but who do not receive program benefits or direct services received by a client. Examples of participants include individuals who contact Department hotlines or the ombudsman for general public information services.

(29) “Payment” means any activities undertaken by a covered entity related to a client to whom health care is provided in order to:

(a) Obtain premiums or to determine or fulfill its responsibility for coverage and provision of benefits under the Medicaid program or other publicly funded health care services; and

(b) Obtain or provide reimbursement for the provision of health care.

(30) “Payment activities” means:

(a) Determinations of eligibility or coverage, including coordination of benefits or the determination of cost sharing amounts, and adjudication of health benefit or health care claims;

(b) Risk adjusting amounts due which are based on enrollee health status and demographic characteristics;

(c) Billing, claims management, collection activities, obtaining payment under a contract for reinsurance, and related health care data processing;

(d) Review of health care services with respect to medical necessity, coverage under a health plan, appropriateness of care, or justification of charges;

(e) Utilization review activities, including pre-certification and pre-authorization of services, concurrent and retrospective review of services; and

(f) Disclosure to consumer reporting agencies related to collection of premiums or reimbursement including name and address, date of birth, payment history, account number, and name and address of the health care provider or health plan.

(31) “Personal representative” means a person who has authority to act on behalf of an individual in making decisions related to health care.

(32) “Protected Health Information (PHI)” means any individually identifiable health information, whether oral or recorded in any form or medium, that is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse and relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual. Any data transmitted or maintained in any other form or medium by covered entities, including paper records, fax documents, all oral communications, or any other form, such as screen prints of eligibility information, printed e-mails containing identified individual’s health information, claim or billing information, or hard copy birth or death certificates. PHI does not include school records that are subject to the Family Educational Rights and Privacy Act and employment records held in the Department’s role as an employer.

(33) “Protected information” means any participant or client information that the Department may have in its records or files that must be safeguarded pursuant to federal or state law. This includes but is not limited to individually identifying information.

(34) “Provider” means a person or entity that may seek reimbursement from the Department as a provider of services to Department clients pursuant to a contract. For purposes of these rules, reimbursement may be requested on the basis of claims or encounters or other means of requesting payment.

(35) “Psychotherapy notes” means notes recorded in any medium by a health care provider who is a mental health professional documenting or analyzing the contents of conversations during a private counseling session, or group, joint, or family counseling session, when the notes are separated from the rest of the individual’s record. Psychotherapy notes do not include medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of diagnosis, functional status, treatment plan, symptoms, prognosis, or progress to date.

(36) “Public health Agency” means a public agency or a person or entity acting under a grant of authority from or by contract with the public agency that performs or conducts one or more of the following essential functions that characterize public health programs, services, or activities:

(a) Monitor health status to identify community health problems;

(b) Diagnose and investigate health problems and health hazards in the community;

(A) Inform, educate, and empower people about health issues;

(B) Mobilize community partnerships to identify and solve health problems;

(D) Enforce laws and regulations that protect health and ensure safety;

(E) Direct individuals to needed personal health services and assure the provision of health care when otherwise unavailable;

(F) Ensure a competent public health and personal health care workforce;

(G) Evaluate the effectiveness, accessibility, and quality of personal and population-based health services; and

(H) Perform research for new insights and innovative solutions to health problems.

(37) “Public health authority” means an agency or authority of the federal government, a state, territory, political subdivision of a state or territory, Indian tribe, or a person or entity acting under a grant of authority from or by contract with the public agency, including the employees or agents of the public agency, or its contractors, persons, or entities to whom it has granted authority, that is responsible for public health matters as part of its official mandate.

(38) “Re-disclosure” means the disclosure of information to a person, a Department program, a Department subcontracted entity, or other entity or person other than what was originally authorized.

(39) “Research” means systematic investigation, including research development, testing, and evaluation, designed to develop or contribute to generalized knowledge.

(40) “Required by law” means a duty or responsibility that federal or state law specifies that a person or entity must perform or exercise. Required by law includes but is not limited to court orders and court-ordered warrants; subpoenas or summons issued by a court, grand jury, a governmental or tribal inspector general, or an administrative body authorized to require the production of information; a civil or an authorized investigative demand; Medicare conditions of participation with respect to health care providers participating in the program; and statutes or rules that require the production of information, including statutes or rules that require such information if payment is sought under a government program providing public benefits.

(41) “Treatment” means the provision, coordination, or management of heath care and related services by one or more health care providers, including the coordination or management of health care by a health care provider with a third party, consultation between health care providers relating to a patient, or the referral of a patient for health care from one health care provider to another.

(42) “Use” means the sharing of individual information within a Department program or the sharing of individual information between program staff and administrative staff that support or oversee the program.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.010
DHSD 11-2011, f. & cert. ef. 12-16-11
DHSD 2-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11
Renumbered from 410-014-0000 by DHSD 5-2009, f. & cert. ef. 7-1-09
OMAP 26-2003, f. 3-31-03 cert. ef. 4-1-03

Or. Admin. R. 407-014-0010 Purpose

(1) The purpose of these rules (OAR 407-014-000 to 407-014-0070) is to govern the collection, use, and disclosure of protected information by the Department about individuals and to explain the rights and specific actions that individuals may take or request to be taken regarding the uses and disclosures of their protected information. These rules also set forth Department requirements governing the use and disclosure of PHI for purposes of HIPAA, 42 USC 1320-d through 1320d-8, Pub L 104-191, sec. 262 and 264, and the implementing HIPAA privacy rules, 45 CFR parts 160 and 164.

(2) Except as provided in section (1) of this rule, state and federal statutes, rules, and policies that govern the administration of Department programs, services, and activities continue to govern the use and disclosure of protected information in those Department programs, services, and activities.

(3) In the event that it is not possible to comply with the requirements of both sections (1) and (2) of this rule, the Department shall act in accordance with whichever federal or state law imposes a stricter requirement regarding the privacy or safeguarding of information and which provides the greater protection or access to the individual who is the subject of the information, unless one of the following applies:

(a) Public health. Nothing in these rules shall be construed to invalidate or limit the authority, power, or procedures established under any law providing for the reporting of disease or injury, birth, or death; public health surveillance; or public health investigation or intervention.

(b) Child abuse. Nothing in these rules shall be construed to invalidate or limit the authority, power, or procedures established under any law providing for the reporting of child abuse.

(c) State regulatory reporting. Nothing in these rules shall be construed to limit the ability of the State of Oregon or the Department to require a health plan to report, or to provide access to information for management audits, financial audits, program monitoring, facility licensure or certification, or individual licensure or certification.

(4) The Department may collect, maintain, use, transmit, share, and disclose information about any individual to the extent authorized by law to administer Department programs, services, and activities.

(5) The Department may use and disclose information about licensees or providers consistent with federal and state laws and regulations. Information regarding the qualifications of licensees and providers are public records.

(a) When the Department obtains information about individuals that relates to determining payment responsibility when a provider submits a request for payment to the Department, the Department shall safeguard the information consistent with federal and state laws and regulations and Department policies.

(b) The Department may review the performance of licensees and providers in the conduct of their health oversight activities and shall safeguard information obtained about individuals obtained during those activities in accordance with federal and state laws and regulations and Department policies.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.010
Renumbered from 410-014-0010 by DHSD 5-2009, f. & cert. ef. 7-1-09
OMAP 26-2003, f. 3-31-03 cert. ef. 4-1-03

Or. Admin. R. 407-014-0015 Information Governed by the HIPAA Privacy Rules

(1) These rules address information that, among other things, may be PHI that is protected by the HIPAA Privacy Rules. For purposes of HIPAA Privacy Rules, the Authority is a covered entity, primarily because of its role as the state Medicaid and Children’s Health Insurance Program.

(2) The Authority administers many aspects of the medical assistance program with the assistance of the Department, including but not limited to eligibility determinations for the medical assistance program and supervising the long-term and community-based services for seniors and people with disabilities. The Department also provides certain health care operations services for the Authority. In doing so, the Department is a business associate of the Authority. As a business associate of the Authority, the Department is authorized to use and disclose protected health information to perform or assist the Authority in the performance of its covered functions, in a manner consistent with these rules.

(3) These rules only apply to information maintained by the Department as a business associate of the Authority.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.010
DHSD 11-2011, f. & cert. ef. 12-16-11
DHSD 2-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

Or. Admin. R. 407-014-0020 Uses and Disclosures of Client or Participant Protected Information

(1) Uses and disclosures with individual authorization. The Department must obtain a completed and signed authorization for release of information from the individual, or the individual’s personal representative, before obtaining or using protected information about an individual from a third party or disclosing protected information about the individual to a third party.

(a) Uses and disclosures must be consistent with what the individual has approved on the signed authorization form approved by the Department.

(b) An individual may revoke an authorization at any time. The revocation must be in writing and signed by the individual, except that substance abuse treatment patients may orally revoke an authorization to disclose information obtained from substance abuse treatment programs. No revocation shall apply to information already released while the authorization was valid and in effect.

(2) Uses and disclosures without authorization. The Department may use and disclose information without written authorization in the following circumstances:

(a) The Department may disclose information to individuals who have requested disclosure to themselves of their information, if the individual has the right to access the information under OAR 407-014-0030(6).

(b) If the law requires or permits the disclosure, and the use and disclosure complies with, and is limited to, the relevant requirements of the relevant law.

(A) Activities involving the current treatment of an individual, for the Department or health care provider;

(B) Payment activities, for the Department, covered entity, or health care provider;

(D) Substance abuse treatment information, if the recipient has a Qualified Service Organization Agreement with the Department.

(d) Psychotherapy notes. The Department may only use and disclose psychotherapy notes in the following circumstances:

(A) In the Department’s supervised counseling training programs;

(B) In connection with oversight of the originator of the psychotherapy notes; or

(e) Public health activities.

(A) The Department may disclose an individual’s protected information to appropriate entities or persons for governmental public health activities and for other purposes including but not limited to:

(i) A governmental public health authority that is authorized by law to collect or receive protected information for the purpose of preventing or controlling disease, injury, or disability, including but not limited to reporting disease, injury, and vital events such as birth or death, and conducting public health surveillance, investigations, and interventions;

(ii) An official of a foreign government agency that is acting in collaboration with a governmental public health authority;

(iii) A governmental public health authority, or other government authority that is authorized by law to receive reports of child abuse or neglect;

(iv) A person subject to the jurisdiction of the federal Food and Drug Administration (FDA), regarding an FDA-regulated product or activity for which that person is responsible for activities related to the quality, safety, or effectiveness of an FDA-regulated product or activity; or

(v) A person who may have been exposed to a communicable disease, or may be at risk of contracting or spreading a disease or condition.

(B) Where state or federal law prohibits or restricts use and disclosure of information obtained or maintained for public health purposes, the Department shall deny the use and disclosure.

(f) Child abuse reporting and investigation. If the Department has reasonable cause to believe that a child is a victim of abuse or neglect, the Department may disclose protected information to appropriate governmental authorities authorized by law to receive reports of child abuse or neglect (including reporting to the Department protective services staff if appropriate). If the Department receives information as the child protective services agency, the Department may use and disclose the information consistent with its legal authority and in compliance with any applicable state and federal regulations.

(g) Adult abuse reporting and investigation. If the Department has reasonable cause to believe that a vulnerable adult is a victim of abuse or neglect, the Department may disclose information, as required by law, to a government authority or regulatory agency authorized by law to receive reports of abuse or neglect including but not limited to a social service or protective services agency (which may include the Department) authorized by law to receive such reports. Vulnerable adults are adults age 65 or older and persons with disabilities. If the Department receives information as the social services or protective services agency, the Department may use and disclose the information.

(h) Health oversight activities. The Department may disclose information without authorization for health oversight activities including audits; civil, criminal, or administrative investigations, prosecutions, licensing or disciplinary actions; Medicaid fraud; or other necessary oversight activities.

(i) Administrative and court hearings, grievances, investigations, and appeals.

(A) The Department may use or disclose information for an investigation, administrative or court hearing, grievance, or appeal about an individual’s eligibility or right to receive Department benefits or services.

(B) If the Department has obtained information in performing its duties as a health oversight agency, protective service entity, or public benefit program, the Department may use or disclose that information in an administrative or court hearing consistent with the other privacy requirements applicable to that program, service, or activity.

(j) Court orders. The Department may disclose information for judicial or administrative proceedings in response to a court order, subpoena, discovery request, or other legal process. If a court orders the Department to conduct a mental examination pursuant to ORS 161.315, 161.365, 161.370, or 419B.352, or orders the Department to provide any other report or evaluation to the court, the examination, report, or evaluation shall be deemed to be required by law for purposes of HIPAA.

(k) Law enforcement purposes. For limited law enforcement purposes, the Department may report certain injuries or wounds; provide information to identify or locate a suspect, victim, or witness; alert law enforcement of a death as a result of criminal conduct; and provide information which constitutes evidence of criminal conduct on Department premises.

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

(i) The law enforcement officer is involved in carrying out any investigation, criminal, or civil proceedings connected with administering the program from which the information is sought;

(ii) A Department employee may disclose information from personal knowledge that does not come from the client’s interaction with the Department;

(iii) The disclosure is authorized by statute or administrative rule;

(iv) The information informs law enforcement of a death as a result of criminal conduct;

(v) The information constitutes evidence of criminal conduct on Department premises; or

(vi) The disclosure is necessary to protect the client or others, and the client poses a threat to his or her safety or to the safety of others.

(B) Except as provided in section (2)(k)(C) of this rule, 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:

(i) Is a fugitive felon or is violating parole, probation, or post-prison supervision;

(ii) For all public assistance programs, has information that is necessary for the officer to conduct official duties, and the location or apprehension of the client is within the officer’s official duties; or

(iii) For clients only in the SNAP program, has information that is necessary to conduct an official investigation of a fugitive felon or person violating parole, probation, or post-prison supervision.

(C) If domestic violence has been identified in the household, the Department may not release information about a victim of domestic violence unless a member of the household is either wanted as a fugitive felon or is violating parole, probation, or post-prison supervision.

(D) For purposes of this subsection, a fugitive felon is a person fleeing to avoid prosecution or custody for a crime, or an attempt to commit a crime, that would be classified as a felony.

(E) For purposes of this section, a law enforcement officer is an employee of the Oregon State Police, a county sheriff’s department, or a municipal police department, whose official duties include arrest authority.

(l) Use and disclosure of information about deceased individuals.

(A) The Department may disclose individual information to a coroner or medical examiner for the purpose of identifying a deceased individual, determining cause of death, or other duties authorized by law.

(B) The Department may disclose individual information to funeral directors as needed to carry out their duties regarding the decedent. The Department may also disclose individual information prior to, and in anticipation of, the death.

(m) Organ or tissue donation. The Department may disclose individual information to organ procurement organizations or other entities engaged in procuring, banking, or transplanting cadaver organs, eyes, or tissue for the purpose of facilitating transplantation.

(n) Research. The Department may disclose individual information without authorization for research purposes, as specified in OAR 407-014-0060.

(o) Threat to health or safety. To avert a serious threat to health or safety the Department may disclose individual information if:

(A) The Department believes in good faith that the information is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and

(B) The report is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.

(p) National security and intelligence. The Department may disclose information to authorized federal officials for lawful intelligence, counterintelligence, and other national security activities.

(q) Correctional institutions and law enforcement custody situations. The Department may disclose information to a correctional institution or a law enforcement official having lawful custody of an inmate or other person, for the limited purpose of providing health care or ensuring the health or safety of the person or other inmates.

(r) Emergency treatment. In case of an emergency, the Department may disclose individual information to the extent needed to provide emergency treatment.

(s) Government entities providing public benefits. The Department may disclose eligibility and other information to governmental entities administering a government program providing public benefits.

(3) Authorization not required if opportunity to object given. The Department may use and disclose an individual’s information without authorization if the Department informs the individual in advance and gives the individual an opportunity to either agree or refuse or restrict the use and disclosure.

(a) These disclosures are limited to disclosure of information to a family member, other relative, close personal friend of the individual, or any other person named by the individual, subject to the following limitations:

(A) The Department may disclose only the protected information that directly relates to the person’s involvement with the individual’s care or payment for care.

(B) The Department may use and disclose protected information for notifying, identifying, or locating a family member, personal representative, or other person responsible for care of the individual, regarding the individual’s location, general condition, or death. For individuals who had resided at one time at the state training center, OAR 411-320-0090(6) addresses family reconnection.

(C) If the individual is present for, or available prior to, a use and disclosure, the Department may disclose the protected information if the Department:

(i) Obtains the individual’s agreement;

(ii) Provides the individual an opportunity to object to the disclosure, and the individual does not object; or

(iii) Reasonably infers from the circumstances that the individual does not object to the disclosure.

(D) If the individual is not present, or the opportunity to object to the use and disclosure cannot practicably be provided due to the individual’s incapacity or an emergency situation, the Department may disclose the information if, using professional judgment, the Department determines that the use and disclosure is in the individual’s best interests.

(b) Exception. For individuals referred to or receiving substance abuse treatment, mental health, or vocational rehabilitation services, the Department shall not use or disclose information without written authorization, unless disclosure is otherwise permitted under 42 CFR part 2, 34 CFR 361.38, or ORS 179.505.

(c) Personal representative. The Department must treat a personal representative as the individual for purposes of these rules, except that:

(A) A personal representative must be authorized under state law to act on behalf of the individual with respect to use and disclosure of information. The Department may require a personal representative to provide a copy of the documentation authorizing the person to act on behalf of the individual.

(B) The Department may elect not to treat a person as a personal representative of an individual if:

(i) The Department has a reasonable belief that the individual has been or may be subjected to domestic violence, abuse, or neglect by the person;

(ii) The Department, in the exercise of professional judgment, decides that it is not in the best interest of the individual to treat the person as the individual’s personal representative.

(4) Redisclosure. The Department must inform the individual that information held by the Department and authorized by the individual for disclosure may be subject to redisclosure and no longer protected by these rules.

(5) Specific written authorization. If the use or disclosure of information requires an authorization, the authorization must specify that the Department may use or disclose vocational rehabilitation records, alcohol and drug records, HIV/AIDS records, genetics information, and mental health or developmental disability records held by publicly funded providers.

(a) Pursuant to federal regulations at 42 CFR part 2 and 34 CFR 361.38, the Department may not make further disclosure of vocational rehabilitation and alcohol and drug rehabilitation information without the specific written authorization of the individual to whom it pertains.

(b) Pursuant to ORS 433.045 and OAR 333-012-0270, the Department may not make further disclosure of individual information pertaining to HIV/AIDS.

(c) Pursuant to ORS 192.531 to 192.549, the Department may not make further disclosure pertaining to genetic information.

(6) Verification of person or entity requesting information. The Department may not disclose information about an individual without first verifying the identity of the person or entity requesting the information, unless the Department workforce member fulfilling the request already knows the person or has already verified identity.

(7) Whistleblowers. The Department may disclose an individual’s protected health information under the HIPAA privacy rules under the following circumstances:

(a) The Department workforce member believes in good faith that the Department has engaged in conduct that is unlawful or that otherwise violates professional standards or Department policy, or that the care, services, or conditions provided by the Department could endanger Department staff, individuals in Department care, or the public; and

(b) The disclosure is to a government oversight agency or public health authority, or an attorney of a Department workforce member retained for the purpose of determining the legal options of the workforce member with regard to the conduct alleged under section (7)(a) above; and

(c) Nothing in this rule is intended to interfere with ORS 659A.200 to 659A.224 describing the circumstances applicable to disclosures by the Department's workforce.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.010 & 433.045
DHSD 11-2011, f. & cert. ef. 12-16-11
DHSD 2-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11
Renumbered from 410-014-0020 by DHSD 5-2009, f. & cert. ef. 7-1-09
OMAP 26-2003, f. 3-31-03 cert. ef. 4-1-03

Or. Admin. R. 407-014-0030 Client Privacy Rights

(1) Rights of clients to access their information. Clients may access, inspect, and obtain a copy of information on their own cases in Department files or records, consistent with federal and state law.

(a) A client may request access by completing the Access to Records Request form, or by providing sufficient information to accomplish this request.

(b) Clients may request access to their own information that is kept by the Department by using a personal identifier such as the client’s name or Department case number.

(c) If the Department maintains information in a record that includes information about other people, the client may see information only about himself or herself.

(d) If a person identified in the file is a minor child of the client, and the client is authorized under Oregon law to have access to the minor’s information or to act on behalf of the minor for making decisions about the minor’s care, the client may obtain information about the minor.

(e) If the requestor of information is recognized under Oregon law as a the client’s guardian or custodian and is authorized under Oregon law to have access to the client’s information or to act on behalf of the client for making decisions about the client’s services or care, the Department shall release information to the requestor.

(f) For individuals with disabilities or mental illnesses, the named system in ORS 192.517, to protect and advocate the rights of individuals with developmental disabilities under Part C of the Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. 6041 et seq.) and the rights of individuals with mental illness under the Protection and Advocacy for Individuals with Mental Illness Act (42 U.S.C. 10801 et seq.), shall have access to all records defined in ORS 192.515.

(g) The Department may deny a client’s access to their own PHI if federal law prohibits the disclosure. Clients may access, inspect, and obtain a copy of health information on their own case in Department files or records except for the following:

(A) Psychotherapy notes;

(B) Information compiled in reasonable anticipation of, or for use in civil, criminal, or administrative proceedings;

(C) Information that is subject to the federal Clinical Labs Improvement Amendments of 1988, or exempt pursuant to 42 CFR 493.3(a)(2);

(D) Information that the Department believes, in good faith, can cause harm to the client, participant, or to any other person; and

(E) Documents protected by attorney work-product privilege.

(h) The Department may deny a client access to information that was obtained under a promise of confidentiality from a person other than a health care provider to the extent that access would reveal the source of the information.

(i) The Department may deny a client access to information, if the Department gives the client a right to have the denial reviewed when:

(A) A licensed health care professional (for health information) or other designated staff (for other information) has determined, in the exercise of professional judgment, that the information requested may endanger the life or physical safety of the client or another person;

(B) The information makes reference to another person, and a licensed health care professional (for health information) or other designated staff (for other information) has determined, in the exercise of professional judgment, that the information requested may cause substantial harm to the client or to another person; or

(C) The request for access is made by the client’s personal representative, and a licensed health care professional (for health information) or other designated staff (for other information) has determined, in the exercise of professional judgment, that allowing the personal representative access to the information may cause substantial harm to the client or to another person.

(j) If the Department denies access under section (1)(i) of this rule, the client may have the decision reviewed by a licensed health care professional (for health information) or other designated staff (for other information) not directly involved in making the original denial decision.

(A) The Department must promptly refer a client’s request for review to the designated reviewer.

(B) The reviewer must determine, within the 30 or 60-day time limits stated in section (1)(k)(A) and (B) of this rule, whether to approve or deny the client’s request for access.

(i) Promptly notify the client in writing of the reviewer’s determination; and

(ii) If approved, take action to carry out the reviewer’s determination.

(k) The Department must act on a client’s request for access no later than 30 days after receiving the request, except as provided in this section and in the case of written accounts under ORS 179.505, which must be disclosed within five days.

(A) In cases where the information is not maintained or accessible to the Department on-site, and does not fall under ORS 179.505, the Department must act on the client’s request no later than 60 days after receiving the request.

(B) If the Department is unable to act within the 30 or 60-day limits, the Department may extend this time period a maximum of 30 additional days, subject to the following:

(i) The Department must notify the client in writing of the reasons for the delay and the date by which the Department shall act on the request.

(ii) The Department shall use only one 30-day extension.

(l) If the Department grants the client’s request, in whole or in part, the Department must inform the client of the access decision and provide the requested access.

(A) If the Department maintains the same information in more than one format or at more than one location, the Department may provide the requested information once.

(B) The Department must provide the requested information in a form or format requested by the client, if readily producible in that form or format. If not readily producible, the Department shall provide the information in a readable hard-copy format or other format as agreed to by the Department and the client.

(C) The Department may provide the client with a summary of the requested information, in lieu of providing access, or may provide an explanation of the information if access has been provided, if:

(i) The client agrees in advance; and

(ii) The client agrees in advance to pay any fees the Department may impose, under section (1)(L)(E) of this rule.

(D) The Department shall arrange with the client for providing the requested access in a time, place, and manner convenient for the client and the Department.

(E) If a client, or legal guardian or custodian, requests a copy, written summary, or explanation of the requested information, the Department may impose a reasonable cost-based fee, limited to the following:

(i) Copying the requested information, including the costs of supplies and the labor of copying;

(ii) Postage; and

(iii) Staff time for preparing an explanation or summary of the requested information.

(m) If the Department denies access, in whole or in part, to the requested information, the Department must:

(A) Give the client access to any other requested client information, after excluding the information to which access is denied; and

(B) Provide the client with a timely written denial. The denial must:

(i) Be provided within the time limits specified in section (1)(k)(A) and (B) of this rule;

(ii) State the basis of the denial in plain language;

(iii) If the Department denies access under section (1)(i) of this rule, explain the client’s review rights as specified in section (1)(j) of this rule, including an explanation of how the client may exercise these rights; and

(iv) Provide a description of how the client may file a complaint with the Department, and if the information is PHI, with the United States Department of Health and Human Services (DHHS), Office for Civil Rights, pursuant to section (7) of this rule.

(n) If the Department does not maintain the requested information, in whole or in part, and knows where the information is maintained (such as by a medical provider, insurer, other public agency, private business, or other non-Department entity), the Department must inform the client where to direct the request for access.

(2) Department Notice of Privacy Practices. The Department shall send clients notice about the Department’s privacy practices as follows:

(a) The Department shall make available to each client a notice of Department privacy practices that describes the duty of the Department to maintain the privacy of PHI and include a description that clearly informs the client of the types of uses and disclosures the Department is permitted or required to make;

(b) The Department shall provide all clients in direct care settings a notice of Department privacy practices and shall request the client’s signature on an acknowledgement of receipt form;

(c) If the Department revises its privacy practices, the Department shall make the revised notice available to all clients;

(d) The Department shall post a copy of the Department’s Notice of Privacy Practices for public viewing at each Department worksite and on the Department website; and

(e) The Department shall give a paper copy of the Department’s Notice of Privacy Practices to any individual upon request.

(3) Right to request restrictions on uses or disclosures. Clients may request restrictions on the use or disclosure of their information.

(a) The Department must comply with the restriction if:

(A) Except as otherwise required by law, the disclosure is to a health plan for purposes of carrying out payment or health care operations (and is not for purposes of carrying out treatment); and

(B) The protected health information pertains solely to a health care item or service for which the health care provider involved has been paid out of pocket in full.

(b) The Department is not required to agree to a restriction if the disclosure is:

(A) Required by law; or

(B) Not to a health plan for purposes of carrying out payment or health care operations.

(c) The Department may not deny a client’s request to restrict the sharing of records of alcohol and drug treatment or records relating to vocational rehabilitation services with another Department program.

(d) The Department shall document the client’s request, and the reasons for granting or denying the request, in the client’s Department case file.

(e) If the client needs emergency treatment and the restricted protected information is needed to provide the treatment, the Department may use or disclose the restricted protected information to a provider, for the limited purpose of providing treatment. However, once the emergency situation subsides, the Department shall ask the provider not to redisclose the information.

(f) The Department may terminate its agreement to a restriction if:

(A) The client agrees to or requests the termination in writing;

(B) The client orally requests or agrees to the termination, and the Department documents the oral request or agreement in the client’s Department case file; or

(C) With or without the client’s agreement, the Department informs the client that the Department is terminating its agreement to the restriction. Information created or received while the restriction was in place shall remain subject to the restriction.

(4) Rights of clients to request to receive information from the Department by alternative means or at alternative locations. The Department must accommodate reasonable requests by clients to receive communications from the Department by alternative means, such as by mail, e-mail, fax, or telephone, and at an alternative location.

(a) The client must specify the preferred alternative means or location.

(b) The client may submit the request for alternative means or locations either orally or in writing.

(A) If the client makes a request in-person, the Department shall document the request and ask for the client’s signature.

(B) If the client makes a request by telephone or electronically, the Department shall document the request and verify the identity of the client.

(A) The client agrees to or requests termination of the alternative location or method of communication in writing or orally. The Department shall document the oral agreement or request in the client’s Department case file; or

(B) The Department informs the client that the Department is terminating its agreement to the alternative location or method of communication because the alternative location or method of communication is not effective. The Department may terminate its agreement to communicate at the alternative location or by the alternate method if:

(i) The Department is unable to contact the client at the location or by the method requested; or

(ii) The client fails to respond to payment requests, if applicable.

(5) Right of clients to request amendment of their information. Clients may request that the Department amend information about themselves in Department files.

(a) For all amendment requests, the Department shall have the client complete the approved Department form.

(b) The Department may deny the request or limit its agreement to amend.

(c) The Department must act on the client’s request no later than 60 days after receiving the request. If the Department is unable to act within 60 days, the Department may extend this time limit by a maximum of 30 additional days, subject to the following:

(A) The Department must notify the client in writing, within 60 days of receiving the request, of the reasons for the delay and the date by which the Department shall act on the request; and

(B) The Department shall use only one 30-day extension.

(d) The program’s medical director, a licensed health care professional designated by the program administrator, or a Department staff person involved in the client’s case must review the request and any related documentation prior to making a decision to amend a health or medical record.

(e) A staff person designated by the Department shall review the request and any related documentation prior to making a decision to amend any information that is not a health or medical record.

(f) If the Department grants the request, in whole or in part, the Department shall:

(A) Make the appropriate amendment to the information or records, and document the amendment in the client’s Department file or record;

(B) Provide notice to the client that the amendment has been granted, pursuant to the time limits under section (5)(c) of this rule;

(C) Obtain the client’s agreement to notify other relevant persons or entities with whom the Department has shared or needs to share the amended information; and

(D) Inform and provide the amendment within a reasonable time to:

(i) Persons named by the client who have received the information and who need the amendment; and

(ii) Persons, that the Department knows have the information that is the subject of the amendment and who may have relied, or could foreseeably rely, on the information to the client’s detriment.

(g) The Department may deny the client’s request for amendment if:

(A) The Department finds the information to be accurate and complete;

(B) The information was not created by the Department;

(D) The information would not be available for inspection or access by the client, pursuant to section (1)(g) and (h) of this rule.

(h) If the Department denies the amendment request, in whole or in part, the Department must provide the client with a written denial. The denial must:

(A) Be sent within the time limits specified in section (5)(c) of this rule;

(B) State the basis for the denial, in plain language; and

(C) Explain the client’s right to submit a written statement disagreeing with the denial and how to file the statement. If the client files a statement:

(i) The Department shall enter the written statement into the client’s Department case file;

(ii) The Department may also enter a Department-written rebuttal of the client’s written statement into the client’s Department case file. The Department shall send a copy of any written rebuttal to the client;

(iii) The Department shall include a copy of the statement and any Department-written rebuttal with any future disclosures of the relevant information;

(iv) If a client does not submit a written statement of disagreement, the client may ask that if the Department makes any further disclosures of the relevant information, that the Department shall also include a copy of the client’s original request for amendment and a copy of the Department written denial; and

(v) The Department shall provide information on how the client may file a complaint with the Department and, if the information is PHI, with DHHS, Office for Civil Rights.

(6) Rights of clients to request an accounting of disclosures of PHI. Clients may receive an accounting of disclosures of PHI that the Department has made for any period of time, not to exceed six years, preceding the request date for the accounting.

(a) For all requests for an accounting of disclosures, the client may complete the authorized Department form “Request for Accounting of Disclosures of Health Records,” or provide sufficient information to accomplish this request.

(b) The right to an accounting of disclosures does not apply when the request is:

(A) Authorized by the client;

(B) Made prior to April 14, 2003;

(C) Made to carry out treatment, payment, or health care operations, unless these disclosures are made from an electronic health record;

(D) Made to the client;

(E) Made to persons involved in the client’s care;

(F) Made as part of a limited data set in accordance with OAR 407-014-0070;

(G) Made for national security or intelligence purposes; or

(H) Made to correctional institutions or law enforcement officials having lawful custody of an inmate.

(A) The date of the disclosure;

(B) The name and address, if known, of the person or entity who received the disclosed information;

(D) A brief statement of the purpose of the disclosure that reasonably informs the client of the basis for the disclosure, or, in lieu of a statement, a copy of the client’s written request for a disclosure, if any.

(d) If, during the time period covered by the accounting, the Department has made multiple disclosures to the same person or entity for the same purpose, the Department may provide the required information for only the first disclosure. The Department need not list the same identical information for each subsequent disclosure to the same person or entity if the Department adds the following information:

(A) The frequency or number of disclosures made to the same person or entity; and

(B) The date of the most recent disclosure during the time period for which the accounting is requested.

(e) The Department must act on the client’s request for an accounting no later than 60 days after receiving the request. If the Department is unable to act within 60 days, the Department may extend this time limit by a maximum of 30 additional days, subject to the following:

(A) The Department must notify the client in writing, within 60 days of receiving the request, of the reasons for the delay and the date by which the Department shall act on the request; and

(B) The Department shall use only one 30-day extension.

(f) The Department shall provide the first requested accounting in any 12-month period without charge. The Department may charge the client a reasonable cost-based fee for each additional accounting requested by the client within the 12-month period following the first request, if the Department:

(A) Informs the client of the fee before proceeding with any additional request; and

(B) Allows the client an opportunity to withdraw or modify the request in order to avoid or reduce the fee.

(g) The Department shall document the information required to be included in an accounting of disclosures, as specified in section (6)(c) of this rule, and retain a copy of the written accounting provided to the client.

(h) The Department shall temporarily suspend a client’s right to receive an accounting of disclosures that the Department has made to a health oversight agency or to a law enforcement official, for a length of time specified by the agency or official, if the agency or official provides a written or oral statement to the Department that the accounting would be reasonably likely to impede their activities. If the agency or official makes an oral request, the Department shall:

(A) Document the oral request, including the identity of the agency or official making the request.

(B) Temporarily suspend the client’s request to an accounting of disclosures; and

(C) Limit the temporary suspension to no longer than 30 days from the date of the oral request, unless the agency or official submits a written request specifying a longer time period.

(7) Filing a complaint. Clients may file a complaint with the Department or, if the complaint concerns a violation of the HIPAA Privacy or Security Rule, with DHHS, Office for Civil Rights.

(a) Upon request, the Department shall give clients the name and address of the specific person or office of where to submit complaints to DHHS.

(b) The Department may not intimidate, threaten, coerce, discriminate against, or take any other form of retaliatory action against any individual filing a complaint or inquiring about how to file a complaint.

(c) The Department may not require clients to waive their rights to file a complaint as a condition of providing treatment, payment, enrollment in a health plan, or eligibility for benefits.

(d) The Department shall designate staff to review and determine action on complaints filed with the Department.

(e) The Department shall document, in the client’s Department case file, all complaints, the findings from reviewing each complaint, and the Department’s actions resulting from the complaint. For each complaint, the documentation shall include a description of corrective action that the Department has taken, if any are necessary, or why corrective action is not needed.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.010
DHSD 11-2011, f. & cert. ef. 12-16-11
DHSD 2-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11
Renumbered from 410-014-0030 by DHSD 5-2009, f. & cert. ef. 7-1-09
OMAP 26-2003, f. 3-31-03 cert. ef. 4-1-03

Or. Admin. R. 407-014-0040 Minimum Necessary Standards

(1) The Department shall limit the use and disclosure of protected information to that which is reasonably necessary to accomplish the intended purpose of the use or disclosure which is referred to in these rules as the minimum necessary standard.

(2) This minimum necessary standard is not intended to impede essential Department activities.

(3) The minimum necessary standard applies:

(a) When using protected information within the Department;

(b) When disclosing protected information to a third party in response to a request; or

(4) The minimum necessary standard does not apply to:

(a) Disclosures to or requests by a health care provider for treatment;

(b) Disclosures made to the individual, including disclosures made in response to a request for access or an accounting;

(d) Disclosures made to DHHS for the purposes of compliance and enforcement of federal regulations under 45 CFR part 160 and required for compliance with 45 CFR part 164; or

(e) Uses and disclosures required by law;

(5) When requesting protected information about an individual from another entity, the Department shall limit requests to those that are reasonably necessary to accomplish the purposes for which the request is made. The Department shall not request a person’s entire medical record unless the Department can specifically justify the need for the entire medical record.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: 409.010
DHSD 11-2011, f. & cert. ef. 12-16-11
DHSD 2-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11
Renumbered from 410-014-0040 by DHSD 5-2009, f. & cert. ef. 7-1-09
OMAP 26-2003, f. 3-31-03 cert. ef. 4-1-03

Or. Admin. R. 407-014-0050 Business Associate

(1) The Department is a business associate of the Authority. The Authority is the single state Medicaid agency, but the Department performs or assists in the performance of key components of the medical assistance program under the supervision of the Authority including but not limited to eligibility determinations for the medical assistance program and supervising the long-term and community-based services for seniors and people with disabilities. The Department also provides certain health care operations services for the Authority. In doing so, the Department is a business associate of the Authority. As a business associate of the Authority, the Department is authorized to use and disclose protected health information to perform or assist the Authority in the performance of its covered functions. However, as a business associate, the Department is subject to the privacy requirements described in these rules.

(2) As a business associate of the Authority implementing the requirements of the medical assistance program, the Department may disclose an individual’s PHI to its contractors or providers, and may allow its contractors or providers to create or receive an individual’s PHI on behalf of the Department if the contract or agreement that complies with applicable federal and state law. In some limited circumstances, the Department may determine that the Department is a business associate of a covered entity. A business associate relationship with the Department requires additional contractual disclosure and privacy provisions that must be incorporated into the contract pursuant to 45 CFR part 164-504(e)(1).

(3) A contract with a business associate must comply with OAR 125-055-0100 to 125-055-0130 and the qualified service organization requirements in 42 CFR part 2.11.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: 409.010
DHSD 11-2011, f. & cert. ef. 12-16-11
DHSD 2-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11
Renumbered from 410-014-0050 by DHSD 5-2009, f. & cert. ef. 7-1-09
OMAP 26-2003, f. 3-31-03 cert. ef. 4-1-03

Or. Admin. R. 407-014-0060 Uses and Disclosures of Protected Information for Research Purposes

The Department may use and disclose an individual’s information for research purposes as specified in this rule.

(1) All research disclosures are subject to applicable requirements of federal and state laws and rules including but not limited to 45 CFR part 46 and 21 CFR part 50.0 to 50.56, relating to the protection of human research subjects.

(2) The Department may use and disclose de-identified information or a limited data set for research purposes, pursuant to OAR 407-014-0070.

(3) The Department may use and disclose information regarding an individual for research purposes with the specific written authorization of the individual. The authorization must meet all requirements in OAR 407-014-0030, and may indicate an expiration date with terms such as “end of research study” or similar language. An authorization for use and disclosure for a research study may be combined with other types of written authorization for the same research study. If research includes treatment, the researcher may require an authorization for use and disclosure for the research as a provision of providing research related treatment.

(4) Notwithstanding section (3) of this rule, the Department may use and disclose an individual’s information for research purposes without the individual’s written authorization, regardless of the source of funding for the research, provided that:

(a) The Department obtains documentation that a waiver of an individual’s authorization for release of information requirements has been approved by an IRB registered with the Office for Human Research Protection. Documentation required of an IRB when granting approval of a waiver of an individual’s authorization for release of information must include all criteria specified in 45 CFR part 164.512(i)(2).

(b) A researcher may request access to individual information maintained by the Department in preparation for research or to facilitate the development of a research protocol in anticipation of research. The Department may determine whether to permit such use or disclosure, without individual authorization or use of an IRB, pursuant to 45 CFR part 164.512(i)(1)(ii).

(c) A researcher may request access to individual information maintained by the Department about deceased individuals. The Department may determine whether to permit such use or disclosure of information about decedents, without individual authorization or use of an IRB, pursuant to 45 CFR part 164.512(i)(1)(iii).

(5) The Department may collect, use, or disclose information, without individual authorization, to the extent that the collection, use, or disclosure is required by law. When the Department uses information to conduct studies as required by law, no additional individual authorization is required nor does this rule require an IRB or privacy board waiver of authorization based on the HIPAA privacy rules.

(6) The Department may use and disclose information without individual authorization for studies and data analysis conducted for the Department’s own quality assurance purposes or to comply with reporting requirements applicable to federal or state funding requirements in accordance with the definition of “health care operations” in 45 CFR part 164.501.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.010
DHSD 11-2011, f. & cert. ef. 12-16-11
DHSD 2-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11
Renumbered from 410-014-0060 by DHSD 5-2009, f. & cert. ef. 7-1-09
OMAP 26-2003, f. 3-31-03 cert. ef. 4-1-03

Or. Admin. R. 407-014-0070 De-identification of Client Information and Use of Limited Data Sets under Data Use Agreements

(1) The Department may use and disclose information as appropriate for the work of the Department, without further restriction, if the Department or another entity has taken steps to de-identify the information pursuant to 45 CFR part 164.514(a) and (b).

(2) The Department may assign a code or other means of record identification to allow the Department to re-identify the de-identified information provided that:

(a) The code or other means of record identification is not derived from or related to information about the individual and cannot otherwise be translated to identify the individual; and,

(b) The Department does not use or disclose the code or other means of record identification for any other purpose, and does not disclose the mechanism for re-identification.

(3) The Department may use and disclose a limited data set if the Department enters into a data use agreement with an entity requesting or providing the Department with a limited data set subject to the requirements of 45 CFR part 164.514(e).

(a) The Department may use and disclose a limited data set for the purposes of research. The Department may use limited data set for its own activities or operations if the Department has obtained a limited data set that is subject to a data use agreement.

(b) If the Department knows of a pattern of activity or practice of a limited data set recipient that constitutes a material breach or violation of a data use agreement, the Department shall take reasonable steps to cure the breach or end the violation. If such steps are unsuccessful, the Department shall discontinue disclosure of information to the recipient and report the problem to the appropriate authority.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.010
DHSD 11-2011, f. & cert. ef. 12-16-11
DHSD 2-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11
Renumbered from 410-014-0070 by DHSD 5-2009, f. & cert. ef. 7-1-09
OMAP 26-2003, f. 3-31-03 cert. ef. 4-1-03

Or. Admin. R. 407-014-0200 Confidentiality and Inadmissibility of Mediation Communications

Pursuant to ORS 36.224, the Department of Human Services adopts by reference OAR 137-005-0052 as promulgated by the Attorney General effective as of 11-13-2018.

History

Statutory/Other Authority: ORS 36.224, 184.340 & 409.050
Statutes/Other Implemented: ORS 36.224, ORS 36.228, 36.230 & 36.232
DHS 6-2023, amend filed 10/09/2023, effective 10/09/2023
DHSD 5-2017, f. & cert. ef. 5-16-17
DHSD 4-2017(Temp), f. 5-11-17, cert. ef. 5-15-17 thru 11-10-17
Renumbered from 410-006-0011, DHSD 6-2007, f. 6-29-07, cert. ef. 7-1-07
OMAP 8-1999, f. & cert. ef. 3-1-99

Or. Admin. R. 407-014-0205 Confidentiality and Inadmissibility of Workplace Interpersonal Dispute Mediation Communications

Pursuant to ORS 36.224, the Department of Human Services adopts by reference OAR 137-005-0054 as promulgated by the Attorney General effective as of November 13, 2018.

History

Statutory/Other Authority: ORS 36.224, 409.050 & OL 2015, Ch. 114 (SB 189)
Statutes/Other Implemented: ORS 36.230 & OL 2015, Ch. 114 (SB 189)
DHS 8-2021, amend filed 06/28/2021, effective 07/01/2021
DHSD 5-2017, f. & cert. ef. 5-16-17
DHSD 4-2017(Temp), f. 5-11-17, cert. ef. 5-15-17 thru 11-10-17
Renumbered from 410-006-0021, DHSD 6-2007, f. 6-29-07, cert. ef. 7-1-07
OMAP 8-1999, f. & cert. ef. 3-1-99

Or. Admin. R. 407-014-0300 Scope

These rules (OAR 407-014-0300 to 407-014-0320) apply to an organization or individual seeking or receiving access to Department information assets or network and information systems for the purpose of carrying out a business transaction between the Department and the user.

(1) These rules are intended to complement, and not supersede, access control or security requirements in the Department’s Electronic Data Transmission rules, OAR 407-120-0100 to 407-120-0200, and whichever rule is more specific shall control.

(2) The confidentiality of specific information and the conditions for use and disclosure of specific information are governed by other laws and rules, including but not limited to the Department’s rules for the privacy of protected information, OAR 407-014-0000 to 407-014-0070.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 182.122
DHSD 1-2012, f. & cert. ef. 2-1-12
DHSD 6-2011(Temp), f. & cert. ef. 8-9-11 thru 2-2-12
DHSD 14-2007, f. 12-31-07, cert. ef. 1-1-08

Or. Admin. R. 407-014-0305 Definitions

For purpose of these rules, the following terms have definitions set forth below. All other terms not defined in this section shall have the meaning used in the Health Insurance Portability and Accountability Act (HIPAA) security rules found at 45 CFR § 164.304:

(1) “Access” means the ability or the means necessary to read, communicate, or otherwise use any Department information asset.

(2) “Access control process” means Department forms and processes used to authorize a user, identify their job assignment, and determine the required access.

(3) “Client records” means any client, applicant, or participant information regardless of the media or source, provided by the Department to the user, or exchanged between the Department and the user.

(4) “Department” means the Department of Human Services.

(5) “Incident” means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of any network and information system or Department information asset including but not limited to unauthorized disclosure of information, failure to protect user’s identification (ID) provided by the Department, or theft of computer equipment that uses or stores any Department information asset.

(6) “Information asset” means any information, also known as data, provided through the Department, regardless of the source or media, which requires measures for security and privacy of the information.

(7) “Network and information system” means the State of Oregon’s computer infrastructure which provides personal communications, client records and other sensitive information assets, regional, wide area and local area networks, and the internetworking of various types of networks on behalf of the Department.

(8) “Organization” means any entity authorized by the Department to access a network and information system or information asset.

(9) “User” means any individual authorized by the Department to access a network and information system or information asset.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 182.122
DHSD 1-2012, f. & cert. ef. 2-1-12
DHSD 6-2011(Temp), f. & cert. ef. 8-9-11 thru 2-2-12
DHSD 14-2007, f. 12-31-07, cert. ef. 1-1-08

Or. Admin. R. 407-014-0310 Information Access

The organization or user shall utilize the Department access control process for all requested and approved access. The Department shall notify the user of each approval or denial. When approved, the Department shall provide the user with a unique login identifier to access the network and information system or information asset. The Department may authorize the use of a generic login identifier..

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 182.122
DHSD 1-2012, f. & cert. ef. 2-1-12
DHSD 6-2011(Temp), f. & cert. ef. 8-9-11 thru 2-2-12
DHSD 14-2007, f. 12-31-07, cert. ef. 1-1-08

Or. Admin. R. 407-014-0315 Security Information Assets

(1) No organization or user shall access an information asset for any purpose other than that specifically authorized by the Department access control process.

(2) Except as specified or approved by the Department, no organization or user shall alter, delete, or destroy any information asset.

(3) The organization shall prohibit unauthorized access by their staff, contractors, agents, or others to the network and information systems or Department information assets, and shall implement safeguards to prevent unauthorized access in accordance with section (4) of this rule.

(4) The organization shall develop a security risk management plan. The organization shall ensure that the plan includes but is not limited to the following:

(a) Administrative, technical, and physical safeguards commonly found in the International Standards Organization 27002: 2005 security standard or National Institute of Standards and Technology (NIST) 800 Series.

(b) Standards established in accordance with HIPAA security rules, 45 CFR Parts 160 and 164, applicable to an organization or user regarding the security and privacy of a client record, any information asset, or network and information system.

(d) Controls and safeguards that address the security of equipment and storage of any information asset accessed to prevent inadvertent destruction, disclosure, or loss.

(e) Controls and safeguards that ensure the security of an information asset, regardless of the media, as identified below:

(A) The user keeps Department-assigned access control requirements such as identification of authorized users and access control information (passwords and personal identification numbers (PINs)), in a secure location until access is terminated;

(B) Upon request of the Department, the organization makes available all information about the user’s use or application of the access controlled network and information system or information asset; and

(C) The organization or user ensures the proper handling, storage, and disposal of any information asset obtained or reproduced and, when the authorized use of that information ends, is consistent with any applicable record retention requirements.

(f) Existing security plans developed to address other regulatory requirements, such as Sarbanes-Oxley Act of 2002 (PL 107-204), Title V of Gramm Leach Bliley Act of 1999, and Statement on Auditing Standards (SAS) number 70, will be deemed acceptable as long as they address the above requirements.

(5) The Department may request additional information related to the organization’s security measures.

(6) The organization or user must immediately notify the Department when access is no longer required and immediately cease access to or use of all information assets or network and information systems.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 182.122
DHSD 1-2012, f. & cert. ef. 2-1-12
DHSD 6-2011(Temp), f. & cert. ef. 8-9-11 thru 2-2-12
DHSD 14-2007, f. 12-31-07, cert. ef. 1-1-08

Or. Admin. R. 407-014-0320 User Responsibility

The organization or user shall not make any root level changes to any Department or State of Oregon network and information system. The Department recognizes that some application users have root level access to certain functions to allow the user to diagnose problems (such as startup or shutdown operations, disk layouts, user additions, deletions or modifications, or other operation) that require root privileges. This access does not give the user the right to make any changes normally restricted to root without explicit, written permission from the Department.

(1) Use and disclosure of any Department information asset is strictly limited to the minimum information necessary to perform the requested and authorized service.

(2) The organization shall have established privacy and security measures that meet or exceed the standards set forth in the Department’s privacy and information security policies, available from the Department, regarding the disclosure of an information asset.

(3) The organization or user shall comply with all security and privacy federal and state laws, rules, and regulations applicable to the access granted.

(4) The organization shall make the security risk plan available to the Department for review upon request.

(5) The organization or user shall report to the Department all privacy or security incidents by the user that compromise, damage, or cause a loss of protection to Department information assets or network and information systems. The incident report shall be made no later than five business days from the date on which the user becomes aware of such incident. The user shall provide the Department a written report which must include the results of the incident assessment findings and resolution strategies.

(6) Wrongful use of a network and information system or wrongful use or disclosure of a Department information asset by the organization or user may cause the immediate suspension or revocation of any access granted at the sole discretion of the Department without advance notice.

(7) The organization or user shall comply with the Department’s request for corrective action concerning a privacy or security incident and with laws requiring mitigation of harm caused by the unauthorized use or disclosure of confidential information, if any.

History

Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 182.122
DHSD 1-2012, f. & cert. ef. 2-1-12
DHSD 6-2011(Temp), f. & cert. ef. 8-9-11 thru 2-2-12
DHSD 14-2007, f. 12-31-07, cert. ef. 1-1-08

Division 25 EMPLOYMENT FIRST AND SERVICES ADVANCING COMPETITIVE INTEGRATED EMPLOYMENT FOR INDIVIDUALS WITH INTELLECTUAL OR DEVELOPMENTAL DISABILITES

Or. Admin. R. 407-025-0000 Purpose and Scope of Employment First

(1) The purpose of the rules in OAR chapter 407, division 025 are to implement Oregon’s Employment First Policy. This policy supports individuals with intellectual or developmental disabilities to obtain, maintain, and advance in competitive integrated employment in the general workforce in accordance with ORS 427.007(1).

(2) Under Oregon’s Employment First Policy, Oregonians with intellectual or developmental disabilities earn competitive wages and benefits alongside coworkers without disabilities. All services must support this outcome of competitive integrated employment.

(3) Oregon does not fund services in sheltered workshops or segregated work settings.

(4) Employment services provided under these rules must be in settings that meet requirements under federal, state, and local wage and hour laws.

(a) Employed individuals with disabilities must be paid for work at a rate that is equal to, or better than, the hourly minimum wage rate required in ORS 653.025, unless an exception applies for all employees without regard to disability.

(b) In Oregon, an employer may not rely on a special certificate issued under 29 U.S.C. section 214(c) to employ individuals with disabilities at a rate lower than the hourly minimum wage rate.

(5) The Department shall ensure employment services available under various funding streams align with federal rules and regulations to promote competitive integrated employment outcomes and career advancement for individuals with intellectual or developmental disabilities.

(6) The Department shall employ good-faith efforts to request and seek funding, appropriations, limitations, allotments, or other expenditure authority sufficient to allow the Department to advance Oregon’s Employment First policies.

History

Statutory/Other Authority: ORS 409.050 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
Statutes/Other Implemented: ORS 409.050, 427.007 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
DHS 3-2025, amend filed 12/23/2025, effective 01/01/2026
DHSD 5-2015, f. 8-7-15, cert. ef. 8-9-15
DHSD 2-2015(Temp), f. & cert. ef. 2-11-15 thru 8-9-15
DHSD 4-2013, f. & cert. ef. 10-1-13

Or. Admin. R. 407-025-0010 Definitions for Employment First

In addition to the following definitions, OAR 411-317-0000 and OAR 411-345-0020 include general definitions for words and terms frequently used in OAR chapter 407, division 025. If a word or term is defined differently in OAR 411-317-0000 and OAR 411-345-0020, the definition in this rule applies.

(1) “Career Development Plan” means the part of an individual’s service plan documenting the individual’s choices about employment and career advancement as directed in OAR 407-025-0050.

(a) A Career Development Plan identifies:

(A) An individual’s employment goals and objectives.

(B) The services and supports needed to achieve those goals.

(D) The obstacles to the individual working in an individualized job in a competitive integrated employment setting, and the services and supports necessary to overcome those obstacles.

(b) A Career Development Plan is based on person-centered planning principles.

(2) “Competitive integrated employment” means, consistent with the Workforce Innovation and Opportunity Act (29 U.S.C. 705), 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

(ii) 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

(B) In the case of an individual who is self-employed, yields an income that is comparable to the income received by other people 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; and

(b) That is at a location:

(A) Typically found in the community; and

(B) Where the employee interacts with other people:

(i) For the purpose of performing the duties of the position with other employees within the particular work unit and the entire work site; and

(ii) As appropriate to the work performed, other people, such as customers and vendors, who are not individuals with disabilities (not including supervisory personnel or the people who are providing services to such employee) to the same extent that people who are not individuals with disabilities and who are in comparable positions interact with other people; and

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

(4) “Developmental disabilities services” mean the services and service settings described in OARs chapter 411, division 004 and divisions 300 through 455.

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

(6) “Employment provider” means a qualified provider of employment services that meets the requirements to deliver employment services.

(7) “Employment services” mean the services provided or funded by the Office of Developmental Disabilities Services or Vocational Rehabilitation that are intended to assist an individual with an intellectual or developmental disability to obtain, maintain, or advance in, competitive integrated employment as described in OAR chapter 411, division 345 and defined in OAR 411-345-0020.

(8) “Individual” means a young adult or an adult who currently receives, or will receive, developmental disabilities services.

(9) “Integrated employment setting” means:

(a) An employment setting that satisfies the requirements for competitive integrated employment; or

(b) An employment setting that provides opportunities for individuals to interact with other people, who are not individuals with disabilities, in a manner typical to the employment setting.

(10) “Statewide Employment First Coordinator” means the person or people designated by the Department to oversee and coordinate all activities required by these rules, including coordination of the Statewide Employment First Advisory Committee described in OAR 407-025-0115.

(11) “These rules” mean the rules in OAR chapter 407, division 025 about Employment First and advancing competitive integrated employment for people with intellectual or developmental disabilities.

History

Statutory/Other Authority: ORS 409.050 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
Statutes/Other Implemented: ORS 409.050, 427.007 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
DHS 3-2025, amend filed 12/23/2025, effective 01/01/2026
DHSD 5-2015, f. 8-7-15, cert. ef. 8-9-15
DHSD 2-2015(Temp), f. & cert. ef. 2-11-15 thru 8-9-15
DHSD 1-2014, f. & cert. ef. 2-14-14
DHSD 4-2013, f. & cert. ef. 10-1-13

Or. Admin. R. 407-025-0020 No Funding in Sheltered Workshops

(1) The Department shall not purchase or fund employment services or comprehensive vocational assessments for individuals with intellectual or developmental disabilities that occur in segregated or sheltered workshop settings. Employment services must be designed to support obtaining, maintaining, or advancing in competitive integrated employment.

(2) For the purpose of this rule, “sheltered workshop” means a facility in which individuals with disabilities are congregated for the purpose of receiving employment services and performing work tasks for pay at the facility.

(a) A sheltered workshop primarily employs individuals with disabilities, including intellectual or developmental disabilities, with the exception of service support staff.

(b) A sheltered workshop is a fixed site that is owned, operated, or controlled by a provider agency and where an individual has few or no opportunities to interact with people who are not individuals with disabilities, not including paid support staff.

(c) A sheltered workshop is not small group employment in an integrated employment setting and is not otherwise an integrated employment setting.

History

Statutory/Other Authority: ORS 409.050 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
Statutes/Other Implemented: ORS 409.050, 427.007 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
DHS 3-2025, amend filed 12/23/2025, effective 01/01/2026
DHSD 5-2015, f. 8-7-15, cert. ef. 8-9-15
DHSD 2-2015(Temp), f. & cert. ef. 2-11-15 thru 8-9-15
DHSD 4-2013, f. & cert. ef. 10-1-13

Or. Admin. R. 407-025-0050 Career Development Planning

(1) Under Oregon’s Employment First Policy, career development planning presumes that all individuals with intellectual or developmental disabilities can work and advance in competitive integrated employment.

(2) The Office of Developmental Disabilities Services shall maintain policies and procedures for developing Career Development Plans, including a process for individuals to make an informed choice about employment and career advancement. Steps taken to help ensure informed choice, as described in section (5) of this rule, are documented annually in an individual’s service plan according to OAR 411-415-0070.

(3) Career Development Plans shall be based on person-centered planning principles.

(4) The Career Development Plan shall prioritize competitive integrated employment. The optimal and expected outcome for all employment services is competitive integrated employment. The career development process shall focus on the strengths of an individual and shall be conducted with the goal of maximizing the number of hours spent working, consistent with an individual’s preferences.

(5) To help ensure informed choice regarding employment, the annual person-centered service planning process, described in OAR 411-415-0070, shall include:

(a) At least an annual conversation regarding employment and career advancement. The conversation shall be based on the presumption that individuals will work and advance in competitive integrated employment.

(b) The conversation shall be accessible to an individual, clearly explain competitive integrated employment and its benefits, and address any concerns the individual expresses about competitive integrated employment.

(d) If an individual chooses not to pursue employment, this decision shall be documented in their Individual Support Plan, including:

(A) Details of the conversation affirming the individual’s talents and addressing questions or potential barriers.

(B) A discussion on the individual’s employment history and how any negative experiences could be improved.

(D) Identification of any new or different strategies used to help ensure informed choice.

(E) Confirmation that the individual can change their decision about working at any time during the year.

History

Statutory/Other Authority: ORS 409.050 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
Statutes/Other Implemented: ORS 409.050, 427.007 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
DHS 3-2025, amend filed 12/23/2025, effective 01/01/2026
DHSD 5-2015, f. 8-7-15, cert. ef. 8-9-15
DHSD 2-2015(Temp), f. & cert. ef. 2-11-15 thru 8-9-15
DHSD 1-2014, f. & cert. ef. 2-14-14
DHSD 4-2013, f. & cert. ef. 10-1-13

Or. Admin. R. 407-025-0060 Training for Employment Providers

(1) The Department shall maintain training and curriculum for employment providers delivering employment services.

(2) The Department shall adopt and implement competency-based training standards for Career Development Plans, job development, job coaching, and coordination of those services.

(3) The Department shall purchase employment services for individuals with intellectual or developmental disabilities only from agencies or individual providers licensed, certified, endorsed, credentialed, or otherwise qualified as required by these rules and OAR chapter 411, division 323. The requirements for providing employment services shall include such national credentialing programs as the Association of People Supporting Employment First’s Certified Employment Support Professional Exam or a substantial equivalent.

History

Statutory/Other Authority: ORS 409.050 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
Statutes/Other Implemented: ORS 409.050, 427.007 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
DHS 3-2025, amend filed 12/23/2025, effective 01/01/2026
DHSD 5-2015, f. 8-7-15, cert. ef. 8-9-15
DHSD 2-2015(Temp), f. & cert. ef. 2-11-15 thru 8-9-15
DHSD 4-2013, f. & cert. ef. 10-1-13

Or. Admin. R. 407-025-0070 Employment First Outreach

The Department shall maintain an outreach and communication plan aimed at individuals with intellectual or developmental disabilities.

History

Statutory/Other Authority: ORS 409.050 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
Statutes/Other Implemented: ORS 409.050, 427.007 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
DHS 3-2025, amend filed 12/23/2025, effective 01/01/2026
DHSD 5-2015, f. 8-7-15, cert. ef. 8-9-15
DHSD 2-2015(Temp), f. & cert. ef. 2-11-15 thru 8-9-15
DHSD 4-2013, f. & cert. ef. 10-1-13

Or. Admin. R. 407-025-0080 Employment Provider Capacity

(1) The Department shall make good faith efforts to ensure there are a sufficient number of qualified employment providers to deliver the services and supports necessary for individuals with intellectual or developmental disabilities to receive employment services consistent with the terms of these rules.

(2) Subject to available funding, the Department shall make training and technical assistance available to ensure there are a sufficient number of qualified employment providers to deliver employment services to eligible individuals with intellectual or developmental disabilities.

History

Statutory/Other Authority: ORS 409.050 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
Statutes/Other Implemented: ORS 409.050, 427.007 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
DHS 3-2025, amend filed 12/23/2025, effective 01/01/2026
DHSD 5-2015, f. 8-7-15, cert. ef. 8-9-15
DHSD 2-2015(Temp), f. & cert. ef. 2-11-15 thru 8-9-15
DHSD 4-2013, f. & cert. ef. 10-1-13

Or. Admin. R. 407-025-0090 Regional and Statewide Employment First Coordination

(1) The Department shall designate at least one Statewide Employment First Coordinator to oversee and coordinate the Employment First initiative and all activities required by the Department in these rules.

(2) The Department, in collaboration with the Oregon Department of Education, shall provide support for regional employment first committees to develop and implement local strategies for increasing capacity for, and removing barriers to, supporting individuals with intellectual or developmental disabilities in obtaining, maintaining, and advancing in competitive integrated employment.

(3) The Department and the Oregon Department of Education shall maintain designated staff specialists for regional interagency coordination work.

(4) The Department and the Oregon Department of Education shall appoint regional and statewide representatives to participate in a transition technical assistance network. The network shall meet at least quarterly to coordinate employment services, strategize on interagency coordination, and discuss best practices for supporting youth with intellectual or developmental disabilities to obtain, maintain, and advance in competitive integrated employment.

(5) The Department and the Statewide Employment First Advisory Committee, as described in OAR 407-025-0115, shall review employment data metrics and make recommendations to update the Employment First Strategic Plan at least annually.

(6) The Statewide Employment First Advisory Committee shall make recommendations annually to Oregon’s Governor’s Office, Department of Education, and Department of Human Services, including the State Rehabilitation Council.

(7) The Office of Developmental Disabilities Services shall include specific provisions in its contracts with each brokerage and each community developmental disability program to accomplish the full implementation of these rules.

History

Statutory/Other Authority: ORS 409.050 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
Statutes/Other Implemented: ORS 409.050, 427.007 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
DHS 3-2025, amend filed 12/23/2025, effective 01/01/2026
DHSD 5-2015, f. 8-7-15, cert. ef. 8-9-15
DHSD 2-2015(Temp), f. & cert. ef. 2-11-15 thru 8-9-15
DHSD 4-2013, f. & cert. ef. 10-1-13

Or. Admin. R. 407-025-0100 Quality Assurance and Improvement of Employment Services

The Department shall develop, implement, and update, as appropriate, a quality improvement plan that:

(1) Promotes informed choice in regard to employment;

(2) Ensures employment services are developed in accordance with these rules; and

(3) Evaluates the quality of employment services provided to individuals with intellectual or developmental disabilities as documented in OAR 411-323-0060.

History

Statutory/Other Authority: ORS 409.050 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
Statutes/Other Implemented: ORS 409.050, 427.007 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
DHS 3-2025, amend filed 12/23/2025, effective 01/01/2026
DHSD 5-2015, f. 8-7-15, cert. ef. 8-9-15
DHSD 2-2015(Temp), f. & cert. ef. 2-11-15 thru 8-9-15
DHSD 4-2013, f. & cert. ef. 10-1-13

Or. Admin. R. 407-025-0110 Data Collection of Employment Services and Reporting

(1) Annually, the Statewide Employment First Coordinator shall monitor the progress of implementation of the Department’s Employment First Strategic Plan through data collection, data analysis, and quality improvement activities.

(2) At least annually, the Department shall collect data and report to the Statewide Employment First Advisory Committee the following data in a published report:

(a) The number of individuals eligible for developmental disabilities services who are receiving employment services;

(b) The number of individuals eligible for developmental disabilities services working in competitive integrated employment;

(c) The number of hours individuals eligible for developmental disabilities services are working per week and hourly wages paid to those individuals;

(d) The number of youth eligible for developmental disabilities services who had a community work experience.

(e) The number of individuals who want to work but do not have a goal in their plan related to pursuing employment.

(f) The number of providers who deliver employment services for the Office of Developmental Disabilities Services;

(g) The number of providers who are dually enrolled to deliver employment services for both the Office of Developmental Disabilities Services and Vocational Rehabilitation.

(h) Other data recommended by the Statewide Employment First Advisory Committee.

(3) Annually, the Department shall report to the Statewide Employment First Advisory Committee on the progress made on the terms of the Department’s Employment First Strategic Plan and the results of the data collected under this rule.

(4) The Department shall regularly collect and analyze data described in this rule, and shall identify problems or barriers to placement in, or retaining jobs in, an integrated employment setting, as well as service gaps, and shall recommend actions to improve services to the Director. The Department and Statewide Employment First Advisory Committee shall review this information on an annual basis. The Department shall develop and implement measures to improve services with respect to the problems and barriers identified.

History

Statutory/Other Authority: ORS 409.050 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
Statutes/Other Implemented: ORS 409.050, 427.007 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
DHS 3-2025, amend filed 12/23/2025, effective 01/01/2026
DHSD 5-2015, f. 8-7-15, cert. ef. 8-9-15
DHSD 2-2015(Temp), f. & cert. ef. 2-11-15 thru 8-9-15
DHSD 4-2013, f. & cert. ef. 10-1-13

Or. Admin. R. 407-025-0115 Statewide Employment First Advisory Committee

(1) A Statewide Employment First Advisory Committee shall be formed to advise state agencies and the Governor on strategies for increasing opportunities for individuals with intellectual and developmental disabilities to obtain, maintain, and advance in competitive integrated employment.

(2) The Statewide Employment First Advisory Committee shall:

(a) Recommend outcome metrics aimed at assessing the delivery of employment services described in these rules.

(b) Meet at least quarterly, and at least annually to review the Employment First Outcome Report.

(d) Make policy and budget recommendations to the Office of the Governor and state agencies regarding employment outcomes for individuals with intellectual or developmental disabilities and state and local workforce plans.

(3) The Statewide Employment First Advisory Committee may appoint subcommittees as needed.

(4) The members of the Statewide Employment First Advisory Committee shall include:

(a) Individuals with intellectual or developmental disabilities.

(b) Disability policy advisors who have lived experience with accessing the disability service delivery system.

(d) Representatives of the division of the Department that provides vocational rehabilitation services.

(e) Representatives of the Department of Education.

(f) Representatives of employment services providers and provider associations.

(g) Representatives of organizations that provide case management services to individuals with intellectual or developmental disabilities.

(5) The members of the Statewide Employment First Advisory Committee may also include representatives of:

(a) School districts and education service districts.

(b) Regional family support networks.

(d) The Oregon Council on Developmental Disabilities.

(e) Oregon’s federally mandated disability protection and advocacy agency.

(f) Oregon’s federally authorized university centers for excellence in developmental disabilities.

(g) The Oregon Disabilities Commission.

(h) The State Independent Living Council.

(i) The Commission for the Blind.

(j) State and county behavioral health departments.

(k) The division of the Department that provides aging and people with disabilities services.

(l) The State Workforce and Talent Development Board and local workforce development boards.

(m) The Oregon Health Authority.

(n) The State Rehabilitation Council.

(o) Other statewide entities providing employment services to individuals with intellectual or developmental disabilities.

History

Statutory/Other Authority: ORS 409.050 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
Statutes/Other Implemented: ORS 409.050, 427.007 & Oregon Laws 2025, Chapter 228 (Senate Bill 810)
DHS 3-2025, amend filed 12/23/2025, effective 01/01/2026
DHSD 5-2015, f. 8-7-15, cert. ef. 8-9-15

Division 30 CLIENT CIVIL RIGHTS

Or. Admin. R. 407-030-0010 Purpose

This rule requires Divisions of the Department of Human Services to insure federal civil rights regulations prohibiting discrimination on the basis of race, color, national origin and handicap. It provides authority enabling Divisions of the Department of Human Services to conduct compliance reviews of certain of its grantees, contractors, or providers of services, as required by the United States Department of Health and Human Services (DHHS). Only those Divisions which receive DHHS funds will conduct reviews annually on ten of their grantees, contractors, or providers of services. The compliance reviews will insure that the following federal regulations are being followed:

(1) Title VI, Civil Rights Act of 1964. This act prohibits discrimination on the basis of race, color, and national origin by federal recipients.

(2) Section 504, Rehabilitation Act of 1973. This act prohibits discrimination on the basis of handicap by federal recipients.

History

Statutory/Other Authority: ORS 409.050 & 411.060
Statutes/Other Implemented: ORS 409.050 & 411.060
Renumbered from 410-030-0010, DHSD 3-2007, f. & cert. ef. 3-1-07
HR 7-1982, f. & ef. 8-26-82
HR 16-1979, f. & ef. 11-19-79
HR 5-1979(Temp), f. & ef. 8-1-79

Or. Admin. R. 407-030-0020 Review Requirements

(1) The Assistant Director for each Division shall insure that all reviews for which their Division is responsible are conducted by or with state agency Title VI/504 coordinators or their designees.

(2) Each actual review shall be preceded by written notification to each provider, contractor, or grantee containing:

(a) A statement as to the purpose of the review;

(b) The approximate time of the review; and

(3) Each review shall be conducted and documented by the use of a review form approved by the Department of Health and Human Services and provided by the Department of Human Services.

History

Statutory/Other Authority: ORS 409.050 & 411.060
Statutes/Other Implemented: ORS 409.050 & 411.060
Renumbered from 410-030-0020, DHSD 3-2007, f. & cert. ef. 3-1-07
HR 7-1982, f. & ef. 8-26-82
HR 16-1979, f. & ef. 11-19-79
HR 5-1979(Temp), f. & ef. 8-1-79

Or. Admin. R. 407-030-0030 Implementation

(1) The provider compliance reviews for which each Division is responsible shall be determined by the Department of Human Services and will be issued as Department policy.

(2) The methods of internal administration and coordination shall be determined by Department of Human Services and published as Department policy. The "methods of Administration" will specify the procedures for avoiding duplication of reviews among the divisions of the Department and will define a method for informing the Department of Human Services if similar reviews are being conducted at the same facility by other agencies.

History

Statutory/Other Authority: ORS 409.050 & 411.060
Statutes/Other Implemented: ORS 409.050 & 411.060
Renumbered from 410-030-0030, DHSD 3-2007, f. & cert. ef. 3-1-07
HR 7-1982, f. & ef. 8-26-82
HR 16-1979, f. & ef. 11-19-79
HR 5-1979(Temp), f. & ef. 8-1-79

Or. Admin. R. 407-030-0040 Penalties for Non-Compliance

Following a review, if a provider of services, contractor, or grantee is found not be to be in compliance with Title VI or Section 504 regulations, an agreement will be developed between the reviewing Division and the provider, contractor, or grantee to assure that compliance occurs. If an agreement with time frames has been reached, compliance has not occurred, and appeal processes have been exhausted, the following will occur:

(1) Providers of Services: The reviewing Division will purchase no further services from the provider and will notify other affected agencies of the action. Service providers may be reinstated after assurance of compliance has been reached.

(2) Contractors and Grantees: The reviewing Division will notify the contractor or grantee that a breach of contract exists or the conditions of the grant have been violated. The grant or contract will be terminated and other affected agencies will be notified. Contractors and grantees may be reinstated after assurance of compliance has been reached.

History

Statutory/Other Authority: ORS 409.050 & 411.060
Statutes/Other Implemented: ORS 409.050 & 411.060
Renumbered from 410-030-0040, DHSD 3-2007, f. & cert. ef. 3-1-07
HR 7-1982, f. & ef. 8-26-82

Division 43 OREGON HEALTH AUTHORITY

Or. Admin. R. 407-043-0010 Oregon Health Authority Transition Period Roles and Responsibilities

(1) Effective June 26, 2009, 2009 Or. Laws Chapter 595 (House Bill 2009) created the Oregon Health Authority and transferred certain duties, functions, and powers of the Department of Human Services (Department) with respect to health and health care to the Oregon Health Authority. House Bill 2009 also authorized an operational transition period beginning June 26, 2009 and ending no later than June 30, 2011. The transferred subject areas are generally described in Section 19(1)(a), 2009 Or. Laws Chapter 595 as including but not limited to:

(a) Developing the policies for and the provision of publicly funded medical care and medical assistance in Oregon;

(b) Ensuring the promotion and protection of public health and the licensing of health care facilities;

(d) Administering the Oregon Prescription Drug Program; and

(e) Establishing responsibility for the Office for Oregon Health Policy and Research and all functions of the office.

(2) The transferred functions described in section (1)(a)–(e) above are generally carried out as currently described in Department rules by the Public Health Division, the Addictions and Mental Health Division, and the Division of Medical Assistance Programs.

(3) Operational transfer of any Department program, business transaction, judicial or administrative proceeding, or any other duty, function, or power transferred to the Oregon Health Authority may occur, in whole or in part, on the date specified by the Oregon Health Authority, but no later than June 30, 2011.

(4) In accordance with OAR 943-001-0010 to 943-001-0015, the Department shall continue to exercise all of the duties, functions, and powers relating to the transfer to the Oregon Health Authority, subject to the supervision and oversight of the Oregon Health Authority, until superseded by operational transfer, either in whole or in part, to the Oregon Health Authority as follows:

(a) All rules shall remain in effect and ongoing rule filing processes may continue.

(b) All program administration, policies, and procedures shall remain in effect and may continue to be developed and implemented.

(c) Any judicial or administrative action, proceeding, contested case hearing, administrative review matter, or new action, proceeding, or matter involving or relating to the Department’s duties, functions, or powers transferred to the Oregon Health Authority shall continue under the Department.

(d) All procurements, contracts, grants, or other business transactions shall remain the Department’s responsibility.

(e) Rights and obligations legally incurred under contracts, leases, and business transactions shall remain legally valid.

(f) Any taxes, assessments, fees, charges, or any payments due and payable to or reimbursable by the Department relating to the duties, functions, or powers transferred to the Oregon Health Authority shall continue to be paid to or reimbursed by the Department on behalf of the Oregon Health Authority.

(g) Any former statutorily required findings, determinations, or recommendations to be made by the Department shall remain the Department’s responsibility.

(h) All filings, notices, or service documents that were formerly mailed, provided to, or served upon the Department relating to the duties, functions, or powers transferred to the Oregon Health Authority shall continue to be made, provided to, or served upon the Department on behalf of the Oregon Health Authority.

(A) Mailing or service of notices or documents on the Department shall be considered notice to the Oregon Health Authority. For example, any notice sent to the Department of Human Services Estate Administration Unit for purposes of ORS 113.145, 114.525, and 130.370 shall be considered notice to the Oregon Health Authority.

(B) If mailed, provided to, or served on the Oregon Health Authority, the filing, notice, or document shall be transmitted to the Department to respond or take such other actions as necessary to protect the state’s interests.

(5) Any and all remaining duties, functions, or powers relating to the duties, functions, and powers transferred to the Oregon Health Authority that are not described in section (4) shall continue in effect or be exercised by the Department until superseded by operational transfer, either in whole or in part, to the Oregon Health Authority.

History

Statutory/Other Authority: ORS 409.050 & 413.042
Statutes/Other Implemented: ORS 413.042
DHSD 11-2009, f. 12-31-09, cert. ef. 1-1-10
DHSD 6-2009(Temp), f. & cert. ef. 9-14-09 thru 3-12-10

Or. Admin. R. 407-043-0020 Cooperative Relationship with Oregon Health Authority

(1) The Department of Human Services (Department) will cooperate and collaborate with Oregon Health Authority (Authority) in order to effectively coordinate services to individuals, families and communities and realize operational efficiencies in the administration of services that can be shared between them (“shared services”).

(2) In any Department rules, policies, or procedures that refer to the programs, functions, and duties that were formerly part of the Department that were transferred to the Authority, such reference shall be considered a reference to the Authority.

(3) The Department acknowledges that the Authority is the state Medicaid agency and the state Children’s Health Insurance Program agency, authorized by state statute to administer the medical assistance program. The Authority is also responsible for facilitating outreach and enrollment efforts to connect eligible individuals with all available publicly funded health programs.

(a) The Department and the Authority recognize that there are many points of interconnection between their programs and the individuals who receive services through these programs. In addition, there are areas of natural connection between the Department and the Authority based upon the former structure of the Department.

(b) The Department shall continue to work cooperatively with the Authority in the administration of the medical assistance program, including determinations of eligibility and service need for medical assistance. The Authority has designated the Department as the operating agency for the home and community-based waivers and as an Organized Health Care Delivery System.

(c) The Department and the Authority are authorized by state law to delegate to each other any duties, functions, and powers that they deem necessary for the efficient and effective operation of their respective functions. The Department and the Authority will work together to adopt rules to assure that medical assistance eligibility requirements, procedures, and determinations are consistent across both agencies. The Authority has authorized the Department to determine medical eligibility for medical assistance. Where that responsibility is given to the Department under ORS Chapter 411, the Department has delegated to the Authority the duties, functions and powers to make medical eligibility determinations in accordance with OAR 410-120-0006.

(d) Where statute establishes duties and functions of the Department or the Authority in relation to medical assistance as a public assistance program, the Department and the Authority will cooperate in the effective administration of the program.

History

Statutory/Other Authority: ORS 409.050 & 413.042
Statutes/Other Implemented: ORS 413.032
DHSD 12-2011, f. & cert. ef. 12-27-11
DHSD 3-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11

Division 50 MEDICARE PART D AUTHORIZED DECISION MAKERS

Or. Admin. R. 407-050-0000 Purpose

These rules set forth parameters concerning who can make decisions and take action on behalf of individuals who are incapable of making their own Medicare Part D Decisions. The decisions and actions include choosing a Medicare Part D prescription drug plan or a Part C Medicare Advantage Plan and filing drug coverage exceptions and appeals, and pursuing grievances with Medicare Part C or D plan sponsors and the federal Centers for Medicare and Medicaid Services (CMS). These rules only pertain to those individuals who receive benefits or services, which are provided by, operated by, authorized or funded by Oregon Department of Human Services (Department). Those acting under the authority of this rule must do so with the express purpose of meeting the pharmaceutical and medical needs of the individual receiving the assistance.

History

Statutory/Other Authority: ORS 409.050, 410.070, 410.090, 411.116, 426.500 & 430.640
Statutes/Other Implemented: ORS 409.010, 410.250, 410.280, 410.020, 411.060, 426.490 & 430.630
DHSD 4-2006, f. & cert. ef. 5-26-06
DHSD 1-2005(Temp), f. & cert. ef. 11-28-05 thru 5-26-06

Or. Admin. R. 407-050-0005 Definitions

(1) "Authorized Representative" for purposes of these rules means one of the following, as determined in accordance with these rules:

(a) Closest Available Relative;

(b) Friend or Advocate;

(c) Department Case Manager/Eligibility Specialist or Department Social Worker or designee named by the Department office responsible for enrollment;

(d) Owner, operator, or employee of a Department licensed or certified residential service, nursing home, foster home, or a Brokerage funded by the Department to provide Developmental Disability Support Services.

(2) “Capable” means that a person has the ability to receive and evaluate information effectively or communicate decisions to such an extent that the person currently has the ability to make Medicare Part D Decisions.

(3) "Closest Available Relative" means a Capable person who is related by blood, marriage, or adoption or a Domestic Partner and is aware of the Part D-eligible Individual's medical and pharmaceutical needs. This person has a history of acting to the benefit of the Part D-eligible Individual’s health and safety and is available to make the needed decisions. It does not refer to physical proximity.

(4) “Domestic Partner” means a person who attests to meet all the following criteria:

(a) Is responsible for the Part-D eligible Individual’s welfare;

(b) Is the Part-D eligible Individual’s sole domestic partner;

(c) Has jointly shared the same regular and permanent residence with the Part-D eligible Individual for at least six months; and,

(d) Is jointly financially responsible for basic living expenses defined as the cost of food, shelter, and any other expenses of maintaining a household.

(5) "Department" means Oregon Department of Human Services.

(6) "Department Case Manager/Eligibility Specialist" means an employee of the Department, the Department's designee, Community Developmental Disability Program, Community Mental Health Program or the local Area Agency on Aging that provides case management services or determines eligibility for Department services for the Part D-eligible Individual.

(7) "Enroll and Enrollment" means the act of enrolling a Part D-eligible Individual into a Medicare Part D Prescription Drug Plan (PDP) or Medicare Advantage Plan (MA or MA-PD) or changing plans.

(8) "Friend or Advocate" means a Capable person known to the Part D-eligible Individual, who has had an ongoing, consistent personal relationship with the Part D-eligible Individual, is aware of the medical and pharmaceutical needs and who is interested in the welfare of the individual and will advocate appropriately on behalf of the individual.

(9) "Incapable" means that the Part D-eligible Individual's ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that the person currently lacks the ability to make Medicare Part D Decisions.

(10) "Individual Designee" means a Capable person appointed verbally, in writing or by any means of communication by the Part D-eligible Individual for the purpose of making enrollment or post-enrollment decisions on behalf of the Part D-eligible Individual.

(11) "Medicare Part D Decision" means a decision to enroll or disenroll in a Medicare Part C or D plan, or any post-enrollment decision, as those terms are used in these rules.

(12) "Medicare Part D Plan, Medicare Prescription Drug Plan, Medicare Part C Plan, Medicare Advantage Plan" all mean a program under contract with the federal Centers for Medicare and Medicaid Services (CMS) to provide prescription drug insurance to people enrolled in the Medicare program.

(13) "Part D-eligible Individual" means an individual who is eligible to receive Medicare Part C or D drug benefits and who also receives benefits or services, which are provided by, operated by, authorized or funded by the Department.

(14) "Personal Representative" means:

(a) A person appointed as a guardian under ORS 125.305, 419B.370, 419C.481, or 419C.555 with authority to make medical, health care or fiscal decisions.

(b) A person appointed as a Health Care Representative under ORS 127.505 to 127.660 or a representative under 127.700 to 127.737 to make health care decisions or mental health treatment decisions.

(d) Any other entity authorized in state or federal law or by order of a court of competent jurisdiction.

(15) "Post-enrollment Actions/Decision" means determining whether and how to do any of the following within the Part C or D program:

(a) File a grievance;

(b) Submit a complaint to the quality improvement organization;

(d) File and request an appeal and direct any part of the appeals process; and,

(e) Disenroll from a Medicare Part C or D Plan.

History

Statutory/Other Authority: ORS 409.050, 410.070, 410.090, 411.116, 426.500 & 430.640
Statutes/Other Implemented: ORS 409.010, 410.250, 410.280, 410.020, 411.060, 426.490 & 430.630
DHSD 4-2006, f. & cert. ef. 5-26-06
DHSD 1-2005(Temp), f. & cert. ef. 11-28-05 thru 5-26-06

Or. Admin. R. 407-050-0010 Authorized Decision Makers

(1) These rules only pertain to those Part D-eligible Individuals who receive benefits or services, which are provided by, operated by, authorized or funded by the Department. Those acting under the authority of this rule must do so with the express purpose of assisting the Part D-eligible Individual to obtain the Part C or D drug benefit that will appropriately meet their pharmaceutical needs and protect their health and safety.

(2) These rules only apply to those persons who can make decisions and take action on behalf of Part D-eligible Individuals for Medicare Part D Decisions.

(3) A Capable Part D-eligible Individual or their Individual Designee must be allowed to make all Medicare Part D Decisions.

(4) If the Part D-eligible Individual is incapable and has a Personal Representative, the Personal Representative must be allowed to make all Medicare Part D Decisions.

(5) If the Part D-eligible Individual is incapable and has an Individual Designee, the Individual Designee must be allowed to make Part D Decisions within the scope of their authority as a designee of the Part D-eligible Individual.

(6) If the Part D-eligible Individual is incapable and does not have an Individual Designee or Personal Representative, these rules authorize the first available person from the following list to be an Authorized Representative for the Part D-eligible Individual solely for the purpose of making Medicare Part D Decision, in order of priority:

(a) Closest Available Relative;

(b) Friend or Advocate;

(c) Department Case Manager/ Eligibility Specialist or Department Social Worker or designee named by the Department office responsible for enrollment;

(7) The person acting under authority of OAR 407-050-0010(6)(c) or (d) must provide the Part D-eligible Individual a written copy of the enrollment or disenrollment decision that includes the name of the person making the decision and his or her relationship to the Part D-eligible Individual and a statement that if he or she does not agree with the decision, he or she may change the decision or request the assistance of a different person. The written notice must be retained in the individual’s file and made available to the Part D-eligible Individual upon request. In addition to providing the written information, this information may also be provided to the Part D-eligible Individual orally or in a manner that will effectively communicate with the individual.

(8) Medicare Part D Decisions by a person acting under authority of subsection (6) of these rules must be clearly guided by the Part D-eligible Individual's expressed wishes or in the Part D-eligible Individual's best interest in the drug benefit that will appropriately meet their pharmaceutical needs.

(9) An individual may not act as a Authorized Representative under subsection (6) of these rules or Individual Designee under subsection (5) of these rules if the individual or any entity from which that individual receives remuneration:

(a) Receives monetary remuneration or any other compensation from a pharmacy or a Part C or D plan based on Part C or D plan enrollment or post-enrollment activities;

(b) Makes Part C or D decisions for the benefit of a facility, pharmacy, or a plan; or

(10) Any individual may be disqualified as acting as an Authorized Representative under subsection (6) or as an Individual Designee under subsection (5) of these rules by the Part D-eligible Individual, a court or hearing process or determination by the Department that an individual is disqualified based upon a substantiated finding of abuse or neglect.

(11) Nothing in this rule implies or authorizes an individual to act on behalf of another individual as a Health Care Representative as defined in OAR 309-041-1500.

(12) These rules do not impair or supersede the existing laws relating to:

(a) The right of a person has to make his or her own decisions;

(b) Health Care Representatives;

(d) Powers of Attorney.

(13) The intent of these rules is to encourage ongoing review of these Part D Decisions during regularly scheduled service planning. Nothing in these rules should be construed to limit regular review procedures that may include prescription drug needs of the Part D-eligible Individual and their coverage under a Medicare Part C or D plan.

(14) If a dispute exists over the decision of incapability, over whom should be the Authorized Representative or over a decision made by an Authorized Representative, the Part D-eligible Individual's Department Case Manager/Eligibility Specialist and service planning team, which must include the Authorized Representative, must review the Part D Decision and make modifications as  necessary.

(15) If the dispute is not resolved by the Department Case Manager and service planning team, the dispute may be referred by any party to the Assistant Director of the Department’s Seniors and People with Disabilities cluster or designee.

History

Statutory/Other Authority: ORS 409.050, 410.070, 410.090, 411.116, 426.500 & 430.640
Statutes/Other Implemented: ORS 409.010, 410.250, 410.280, 410.020, 411.060, 426.490 & 430.630
DHSD 4-2006, f. & cert. ef. 5-26-06
DHSD 1-2005(Temp), f. & cert. ef. 11-28-05 thru 5-26-06

Division 70 DEMOGRAPHICS

Or. Admin. R. 407-070-0000 Race, Ethnicity, Language, and Disability Demographic Data Collection Standards

(1) Pursuant to ORS 413.161, the Oregon Health Authority, in collaboration with the Oregon Department of Human Services, established uniform standards, based on local, statewide and national best practices, for the collection of data on race, ethnicity, preferred spoken and written languages and disability status. These standards are set forth in OAR 950-030-0000 to 950-030-0200 and 950-038-0010.

(2) The Oregon Department of Human Services adopts and incorporates by reference the rules established in OAR 950-030-0000 to 950-030-0200 and 950-038-0010 for those matters related to data collection standards.

History

Statutory/Other Authority: ORS 409.050 & 413.161
Statutes/Other Implemented: ORS 413.161
DHS 3-2023, minor correction filed 05/15/2023, effective 05/15/2023
DHSD 6-2015, f. 8-28-15, cert. ef. 9-1-15

Division 100 RESILIENCE HUBS AND NETWORKS GRANT

Or. Admin. R. 407-100-0010 Purpose and Scope

(1) OAR 407-100 establishes the Resilience Hubs and Networks Grant Program within the Oregon Department of Human Services (ODHS) Office of Resilience and Emergency Management (OREM). The Program offers grants to organizations or individuals who wish to develop, expand, or strengthen a Resilience Hub or Network in their community.

(2) The purpose of the Resilience Hubs and Networks Grant Program is to empower communities to become more resilient.

History

Statutory/Other Authority: ORS 409.760 & ORS 409.050
Statutes/Other Implemented: ORS 409.760
DHS 9-2024, adopt filed 07/10/2024, effective 07/10/2024
DHS 6-2024, temporary adopt filed 01/16/2024, effective 01/16/2024 through 07/13/2024

Or. Admin. R. 407-100-0020 Definitions

The following definitions apply to OAR 407-100:

(1) “Awardee” means a Resilience Hubs and Networks Grant Program applicant that is selected for a grant award.

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

(3) “Grant Agreement” means the document agreed to and signed by Awardee and Oregon Department of Human Services (ODHS) that describes the terms and conditions required by the ODHS Office of Resilience and Emergency Management to issue the grant award.

(4) “Grant Applicant” means an organization or individual who submits an application to the Resilience Hubs and Networks Grant Program.

(5) “Oregon Buys” means a web-based eProcurement system that automates the State of Oregon's procurement process.

(6) “Resilience Hub” means a physical facility that is operated, managed, or supported by one or more local residents, local governments, tribal governments, public schools, community-based organizations, faith-based organizations, nonprofit organizations, or nongovernmental organizations and that:

(a) Supports the needs of community members or tribal communities, facilitates gathering and communication, distributes resources and otherwise enhances quality of life within a community;

(b) Serves as a central point for gathering, information sharing, and coordination in response to a disruption in the community;

(d) Is positioned, operated and resourced on a day-to-day basis to provide community resources, including but not limited to food, water, information exchange, electronic charging stations, basic medical supplies and equipment proportionate to the size of the community’s population and needs;

(e) Supports community cache sites and other support for community members who shelter in place;

(f) Can provide child care, training, food distribution and other services that can help a community respond to unmet social needs to prepare for, respond to and recover from disasters;

(g) Can provide, or can be retrofitted to provide, heating, cooling, air filtration and weather protection, and;

(h) Accommodates individuals with accessibility needs.

(7) "Resilience Network” means an association of facilities, organizations, resource providers, or service providers outside of a physical Resilience Hub facility that collectively serve the purposes of a Resilience Hub.

History

Statutory/Other Authority: ORS 409.760 & ORS 409.050
Statutes/Other Implemented: ORS 409.760
DHS 9-2024, adopt filed 07/10/2024, effective 07/10/2024
DHS 6-2024, temporary adopt filed 01/16/2024, effective 01/16/2024 through 07/13/2024

Or. Admin. R. 407-100-0030 Eligibility

Individuals or organizations in Oregon are eligible to apply for the Resilience Hubs and Networks Grant Program. In accordance with ORS 409.760, the Oregon Department of Human Services (ODHS), Office of Resilience and Emergency Management (OREM) encourages grant applications that describes activities that:

(1) Supports the needs of community members or tribal communities, facilitates gathering and communication, distributes resources and otherwise enhances quality of life within a community;

(2) Serves as a central point for gathering, information sharing, and coordination in response to a disruption in the community;

(3) Enhances the ability of a community to respond to and recover from a disruption in a community;

(4) Support a Resilience Hub that is positioned, operated and resourced on a day-to-day basis to provide community resources, including but not limited to food, water, information exchange, electronic charging stations, basic medical supplies and equipment proportionate to the size of the community’s population and needs;

(5) Supports community cache sites and other support for community members who shelter in place;

(6) Can provide child care, training, food distribution and other services that can help a community respond to unmet social needs to prepare for, respond to, and recover from disasters;

(7) Can provide, or can be retrofitted to provide, heating, cooling, air filtration and weather protection, and;

(8) Accommodates individuals with accessibility needs.

History

Statutory/Other Authority: ORS 409.760 & ORS 409.050
Statutes/Other Implemented: ORS 409.760
DHS 9-2024, adopt filed 07/10/2024, effective 07/10/2024
DHS 6-2024, temporary adopt filed 01/16/2024, effective 01/16/2024 through 07/13/2024

Or. Admin. R. 407-100-0040 Evaluation Criteria

Individuals or organizations may apply for grants by submitting an application that must include:

(1) A description of the purposes for which grant moneys will be expended;

(2) A plan for implementing specific strategies to build resilience in a community;

(3) A description of additional resources available for purposes of the Resilience Hub or Network;

(4) A description of the project’s ability to serve vulnerable populations and communities traditionally underrepresented in the public process, including communities of color, communities experiencing lower incomes, tribal communities, rural communities, coastal communities, communities with limited infrastructure, seniors, youth, and persons with disabilities; and any other information required by the Oregon Department of Human Services (ODHS).

History

Statutory/Other Authority: ORS 409.760 & ORS 409.050
Statutes/Other Implemented: ORS 409.760
DHS 9-2024, adopt filed 07/10/2024, effective 07/10/2024
DHS 6-2024, temporary adopt filed 01/16/2024, effective 01/16/2024 through 07/13/2024

Or. Admin. R. 407-100-0050 Technical Review Process

(1) Applications will be scored on objective criterion and subjective essay questions, which will be combined to calculate a combined total score. The applications combined total score will be used to inform funding decisions.

(2) Objective score rubric: The objective score will be based upon the physical address submitted in the application. That score will be derived from that physical address’ location within the Center for Disease Control (CDC) Social Vulnerability Index Map (SVI), and the Environmental Protection Agencies’ (EPA) Environmental Justice (EJ) Screen map. Based on the CDC’s SVI map, an application will receive a score commensurate with that location’s SVI rating; if a location has the highest SVI rating, then that application will receive the highest score in that category.

(3) Subjective essay scoring rubric: Applicants will be required to answer the short-answer essay questions. A review panel will read the applicants’ essays and apply scores to each answer based on the subjective essay scoring rubric. The total of the essays’ scores will be added to the total objective score to produce an application’s final total score.

History

Statutory/Other Authority: ORS 409.760 & ORS 409.050
Statutes/Other Implemented: ORS 409.760
DHS 9-2024, adopt filed 07/10/2024, effective 07/10/2024
DHS 6-2024, temporary adopt filed 01/16/2024, effective 01/16/2024 through 07/13/2024

Or. Admin. R. 407-100-0060 Funding Decision

Awards may be funded in-whole or in-part.

History

Statutory/Other Authority: ORS 409.760 & ORS 409.050
Statutes/Other Implemented: ORS 409.760
DHS 9-2024, adopt filed 07/10/2024, effective 07/10/2024
DHS 6-2024, temporary adopt filed 01/16/2024, effective 01/16/2024 through 07/13/2024

Or. Admin. R. 407-100-0070 Grant Agreement Conditions

(1) Awards may not be used as pass-through funds to be distributed as a grant to other organizations; grant awards will be issued directly to the individual or organization that will be using the awarded resources.

(a) However, if an organization is designated to apply for the grant on behalf of other organizations, then the organization can apply for funding or equipment and then pass it to another organization only if application includes:

(A) The name(s) of the other organization(s) to whom you intend to pass the funding or equipment; and

(B) A letter of support from those partner organization(s), which includes information regarding what the funding or equipment will be used for.

(b) In addition to the items listed below in section (3) of this rule, an awardee's final report must also include:

(A) Documentation that proves the funding or equipment was delivered to the organization(s) named in the application; and

(B) Documentation that proves the funding or equipment was used for the purposes as stated in that application and grant agreement.

(2) Awardees will be required to register in Oregon Buys to establish and store the grant agreement and to receive their funding award.

(3) Awardees will be required to submit a report within 365 days after grant agreement is signed by all parties and entered into Oregon Buys, which describes:

(a) How funds were allocated;

(b) How the resource impacted the community;

(d) Submission of photographs of the new resource(s).

History

Statutory/Other Authority: ORS 409.760 & ORS 409.050
Statutes/Other Implemented: ORS 409.760
DHS 9-2024, adopt filed 07/10/2024, effective 07/10/2024
DHS 6-2024, temporary adopt filed 01/16/2024, effective 01/16/2024 through 07/13/2024

Or. Admin. R. 407-100-0080 Waiver and Periodic Review of Rules

The Oregon Department of Human Services (ODHS) Office of Resilience and Emergency Management (OREM) may waive the requirements of these rules for individual grant applications unless required by statute, when doing so will result in more efficient or effective implementation of the Resilience Hubs and Networks Grant Program. Any waiver must be in writing and included in the grant file to which the waiver applies. The administrative rules for monitoring grants may be periodically reviewed by the ODHS Office of Resilience and Emergency Management staff and revised as necessary and appropriate.

History

Statutory/Other Authority: ORS 409.760 & ORS 409.050
Statutes/Other Implemented: ORS 409.760
DHS 9-2024, adopt filed 07/10/2024, effective 07/10/2024
DHS 6-2024, temporary adopt filed 01/16/2024, effective 01/16/2024 through 07/13/2024

Division 120 PROVIDER RULES

Or. Admin. R. 407-120-0100 Definitions

The following definitions apply to OAR 407-120-0100 through 407-120-0200:

(1) "Access" means the ability or means necessary to read, write, modify, or communicate data or information or otherwise use any information system resource.

(2) "Agent" means a third party or organization that contracts with a provider, allied agency, or prepaid health plan (PHP) to perform designated services in order to facilitate a transaction or conduct other business functions on its behalf. Agents include billing agents, claims clearinghouses, vendors, billing services, service bureaus, and accounts receivable management firms. Agents may also be clinics, group practices, and facilities that submit billings on behalf of providers but the payment is made to a provider, including the following: an employer of a provider, if a provider is required as a condition of employment to turn over his fees to the employer; the facility in which the service is provided, if a provider has a contract under which the facility submits the claim; or a foundation, plan, or similar organization operating an organized health care delivery system, if a provider has a contract under which the organization submits the claim. Agents may also include electronic data transmission submitters.

(3) "Allied Agency" means local and regional allied agencies and includes local mental health authority, community mental health programs, Oregon Youth Authority, Department of Corrections, local health departments, schools, education service districts, developmental disability service programs, area agencies on aging, federally recognized American Indian tribes, and other governmental agencies or regional authorities that have a contract (including an interagency, intergovernmental, or grant agreement, or an agreement with an American Indian tribe pursuant to ORS 190.110) with the Department to provide for the delivery of services to covered individuals and that request to conduct electronic data transactions in relation to the contract.

(4) "Clinic" means a group practice, facility, or organization that is an employer of a provider, if a provider is required as a condition of employment to turn over his fees to the employer; the facility in which the service is provided, if a provider has a contract under which the facility submits the claim; or a foundation, plan, or similar organization operating an organized health care delivery system, if a provider has a contract under which the organization submits the claim; and the group practice, facility, or organization is enrolled with the Department, and payments are made to the group practice, facility, or organization. If the entity solely submits billings on behalf of providers and payments are made to each provider, then the entity is an agent.

(5) "Confidential Information" means information relating to covered individuals which is exchanged by and between the Department, a provider, PHP, clinic, allied agency, or agents for various business purposes, but which is protected from disclosure to unauthorized individuals or entities by applicable state and federal statutes such as ORS 344.600, 410.150, 411.320, 418.130, or the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 and its implementing regulations. These statutes and regulations are collectively referred to as "Privacy Statutes and Regulations."

(6) "Contract" means a specific written agreement between the Department and a provider, PHP, clinic, or allied agency that provides or manages the provision of services, goods, or supplies to covered individuals and where the Department and a provider, PHP, clinic, or allied agency may exchange data. A contract specifically includes, without limitation, a Department provider enrollment agreement, fully capitated heath plan managed care contract, dental care organization managed care contract, mental health organization managed care contract, chemical dependency organization managed care contract, physician care organization managed care contract, a county financial assistance agreement, or any other applicable written agreement, interagency agreement, intergovernmental agreement, or grant agreement between the Department and a provider, PHP, clinic, or allied agency.

(7) "Covered Entity" means a health plan, health care clearing house, health care provider, or allied agency that transmits any health information in electronic form in connection with a transaction, including direct data entry (DDE), and who must comply with the National Provider Identifier (NPI) requirements of 45 CFR 162.402 through 162.414.

(8) "Covered Individual" means individuals who are eligible for payment of certain services or supplies provided to them or their eligible dependents by or through a provider, PHP, clinic, or allied agency under the terms of a contract applicable to a governmental program for which the Department processes or administers data transmissions.

(9) "Data" means a formalized representation of specific facts or concepts suitable for communication, interpretation, or processing by individuals or by automatic means.

(10) Data Transmission" means the transfer or exchange of data between the Department and a web portal or electronic data interchange (EDI) submitter by means of an information system which is compatible for that purpose and includes without limitation, web portal, EDI, electronic remittance advice (ERA), or electronic media claims (EMC) transmissions.

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

(12) "Department Network and Information Systems" means the Department's computer infrastructure that provides personal communications, confidential information, regional, wide area and local networks, and the internetworking of various types of networks on behalf of the Department.

(13) "Direct Data Entry (DDE)" means the process using dumb terminals or computer browser screens where data is directly keyed into a health plan's computer by a provider or its agent, such as through the use of a web portal.

(14) "Electronic Data Interchange (EDI)" means the exchange of business documents from application to application in a federally mandated format or, if no federal standard has been promulgated, using bulk transmission processes and other formats as the Department designates for EDI transactions. For purposes of these rules (OAR 407-120-0100 through 407-120-0200), EDI does not include electronic transmission by web portal.

(15) "Electronic Data Interchange Submitter" means an individual or entity authorized to establish the electronic media connection with the Department to conduct an EDI transaction. An EDI submitter may be a trading partner or an agent of a trading partner.

(16) "Electronic Media" means electronic storage media including memory devices in computers or computer hard drives; any removable or transportable digital memory medium such as magnetic tape or disk, optical disk, or digital memory card; or transmission media used to exchange information already in electronic storage media. Transmission media includes but is not limited to the internet (wide-open), extranet (using internet technology to link a business with information accessible only to collaborating parties), leased lines, dial-up lines, private networks, and the physical movement of removable or transportable electronic storage media. Certain transmissions, including paper via facsimile and voice via telephone, are not considered transmissions by electronic media because the information being exchanged did not exist in electronic form before transmission.

(17) "Electronic Media Claims (EMC)" means an electronic media means of submitting claims or encounters for payment of services or supplies provided by a provider, PHP, clinic, or allied agency to a covered individual.

(18) "Electronic Remittance Advice (ERA)" means an electronic file in X12 format containing information pertaining to the disposition of a specific claim for payment of services or supplies rendered to covered individuals which are filed with the Department on behalf of covered individuals by providers, clinics, or allied agencies. The documents include, without limitation, the provider name and address, individual name, date of service, amount billed, amount paid, whether the claim was approved or denied, and if denied, the specific reason for the denial. For PHPs, the remittance advice file contains information on the adjudication status of encounter claims submitted.

(19) "Electronic Data Transaction (EDT)" means a transaction governed by the Health Insurance Portability and Accountability Act (HIPAA) transaction rule, conducted by either web portal or EDI.

(20) "Envelope" means a control structure in a mutually agreed upon format for the electronic interchange of one or more encoded data transmissions either sent or received by an EDI submitter or the Department.

(21) "HIPAA Transaction Rule" means the standards for electronic transactions at 45 CFR Part 160 and 162 (version in effect on January 1, 2008) adopted by the Department of Health and Human Services (DHHS) to implement the Health Insurance Portability and Accountability Act of 1996, 42 USC 1320d et. seq.

(22) "Incident" means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of an information system or information asset including but not limited to unauthorized disclosure of information, failure to protect user IDs, and theft of computer equipment using or storing Department information assets or confidential information.

(23) "Individual User Profile (IUP)" means Department forms used to authorize a user, identify their job assignment, and the required access to the Department's network and information system. It generates a unique security access code used to access the Department's network and information system.

(24) "Information Asset" means all information, also known as data, provided through the Department, regardless of the source, which requires measures for security and privacy of the information.

(25) "Information System" means an interconnected set of information resources under the same direct management control that shares common functionality. A system normally includes hardware, software, information, data, applications, communications, and trained personnel necessary for successful data transmission.

(26) "Lost or Indecipherable Transmission" means a data transmission which is never received by or cannot be processed to completion by the receiving party in the format or composition received because it is garbled or incomplete, regardless of how or why the message was rendered garbled or incomplete.

(27) "Mailbox" means the term used by the Department to indicate trading partner-specific locations on the Department's secure file transfer protocol (SFTP) server to deposit and retrieve electronic data identified by a unique Department assigned trading partner number.

(28) "Password" means the alpha-numeric codes assigned to an EDI submitter by the Department for the purpose of allowing access to the Department's information system, including the web portal, for the purpose of successfully executing data transmissions or otherwise carrying out the express terms of a trading partner agreement or provider enrollment agreement and these rules.

(29) "Personal Identification Number (PIN)" means the alpha-numeric codes assigned to web portal submitters by the Department for the purpose of allowing access to the Department's information system, including the web portal, for the purpose of successfully executing DDE, data transmissions, or otherwise carrying out the express terms of a trading partner agreement, provider enrollment agreement, and these rules.

(30) "Prepaid Health Plan (PHP) or Plan" means a managed health care, dental care, chemical dependency, physician care organization, or mental health care organization that contracts with the Department on a case managed, prepaid, capitated basis under the Oregon Health Plan (OHP).

(31) "Provider" means an individual, facility, institution, corporate entity, or other organization which supplies or provides for the supply of services, goods or supplies to covered individuals pursuant to a contract, including but not limited to a provider enrollment agreement with the Department. A provider does not include billing providers as used in the Division of Medical Assistance (DMAP) general rules. DMAP billing providers are defined in these rules as agents, except for DMAP billing providers that are clinics.

(32) "Provider Enrollment Agreement" means an agreement between the Department and a provider for payment for the provision of covered services to covered individuals.

(33) "Registered Transaction" means each type of EDI transaction applicable to a trading partner that must be registered with the Department before it can be tested or approved for EDI transmission.

(34) "Security Access Codes" means the alpha-numeric codes assigned by the Department to the web portal submitter or EDI submitter for the purpose of allowing access to the Department's information system, including the web portal, to execute data transmissions or otherwise carry out the express terms of a trading partner agreement, provider enrollment agreement, and these rules. Security access codes may include passwords, PINs, or other codes.

(35) "Source Documents" means documents or electronic files containing underlying data which is or may be required as part of a data transmission with respect to a claim for payment of charges for medical services or supplies provided to a covered individual, or with respect to any other transaction. Examples of data contained within a specific source document include but are not limited to an individual's name and identification number, claim number, diagnosis code for the services provided, dates of service, service procedure description, applicable charges for the services provided, and a provider's, PHP's, clinic's, or allied agency's name, identification number, and signature.

(36) "Standard" means a rule, condition, or requirement describing the following information for products, systems, or practices:

(a) Classification of components;

(b) Specification of materials, performance, or operations; or

(37) "Standards for Electronic Transactions" mean a transaction that complies with the applicable standard adopted by DHHS to implement standards for electronic transactions.

(38) “Submitter” means a provider, PHP, clinic, or allied agency that may or may not have entered into a trading partner agreement depending upon whether the need is to exchange electronic data transactions or access the Department’s web portal.

(39) "Transaction" means the exchange of data between the Department and a provider using web portal access or a trading partner using electronic media to carry out financial or administrative activities.

(40) "Trade Data Log" means the complete written summary of data and data transmissions exchanged between the Department and an EDI submitter during the period of time a trading partner agreement is in effect and includes but is not limited to sender and receiver information, date and time of transmission, and the general nature of the transmission.

(41) "Trading Partner" means a provider, PHP, clinic, or allied agency that has entered into a trading partner agreement with the Department in order to satisfy all or part of its obligations under a contract by means of EDI, ERA, or EMC, or any other mutually agreed means of electronic exchange or transfer of data.

(42) "Trading Partner Agreement (TPA)" means a specific written request by a provider, PHP, clinic, or allied agency to conduct EDI transactions that governs the terms and conditions for EDI transactions in the performance of obligations under a contract. A provider, PHP, clinic, or allied agency that has executed a TPA will be referred to as a trading partner in relation to those functions.

(43) "User" means any individual or entity authorized by the Department to access network and information systems or information assets.

(44) "User Identification Security (UIS)" means a control method required by the Department to ensure that only authorized users gain access to specified information assets. One method of control is the use of passwords and PINs with unique user identifications.

(45) "Web Portal" means a site on the World Wide Web that typically provides secure access with personalized capabilities to its visitors and a pathway to other content designed for use with the Department’s specific DDE applications.

(46) "Web Portal Submitter" means an individual or entity authorized to establish an electronic media connection with the Department to conduct a DDE transaction. A web portal submitter may be a provider or a provider's agent.

History

Statutory/Other Authority: ORS 409.050 & 414.065
Statutes/Other Implemented: ORS 414.065
DHSD 13-2011, f. & cert. ef. 12-27-11
DHSD 5-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11
Renumbered from 410-001-0100, DHSD 1-2008, f. & cert. ef. 2-1-08
DMAP 30-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08
OMAP 55-2003, f. & cert. ef. 8-22-03
OMAP 25-2003(Temp), f. & cert. ef. 3-21-03 thru 9-8-03

Or. Admin. R. 407-120-0110 Purpose

(1) These rules establish requirements applicable to providers, PHPs, and allied agencies that want to conduct electronic data transactions with the Department. These rules govern the conduct of all web portal or EDI transactions with the Department. These rules only apply to services or items that are paid for by the Department. If the service or item is paid for by a plan or an allied agency, these rules do not apply.

(2) These rules establish the Department’s electronic data transaction requirements for purposes of the Health Insurance Portability and Accountability Act of 1996, 42 USC 1320d–1320d-8, Public Law 104-191, sec. 262 and sec. 264, and the implementing standards for electronic transactions rules. Where a federal HIPAA standard has been adopted for an electronic data transaction, this rule implements and does not alter the federal standard.

(3) These rules establish procedures that must be followed by any provider, PHP, or allied agency in the event of a security or privacy incident, regardless of whether the incident is related to the use of an electronic data transaction.

History

Statutory/Other Authority: ORS 409.050 & 414.065
Statutes/Other Implemented: ORS 414.065
Renumbered from 410-001-0110, DHSD 1-2008, f. & cert. ef. 2-1-08
DMAP 30-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08
OMAP 55-2003, f. & cert. ef. 8-22-03
OMAP 25-2003(Temp), f. & cert. ef. 3-21-03 thru 9-8-03

Or. Admin. R. 407-120-0112 Scope and Sequence of Electronic Data Transmission Rules

(1) The Department communicates with and receives communications from its providers, PHPs, and allied agencies using a variety of methods appropriate to the services being provided, the nature of the entity providing the services, and constantly changing technology. These rules describe some of the basic ways that the Department will exchange data electronically. Additional details may be provided in the Department's access control rules, provider-specific rules, or the applicable contract documents.

(2) Access to eligibility information about covered individuals may occur using one or more of the following methods:

(a) Automated voice response, via a telephone;

(b) Web portal access;

(d) Point of sale (POS) for pharmacy providers.

(3) Claims for which the Department is responsible for payment or encounter submissions made to the Department may occur using one or more of the following methods:

(a) Paper, using the form specified in the provider specific rules and supplemental billing guidance. Providers may submit paper claims, except that pharmacy providers are required to use the POS process for claims submission and PHPs are required to use the 837 electronic formats;

(b) Web portal access;

(d) POS for pharmacy providers.

(4) Department informational updates, provider record updates, depository for PHP reports, or EDT as specified by the Department for contract compliance.

(5) Other Department network and information system access is governed by specific program requirements, which may include but is not limited to IUP access. Affected providers, PHPs, and allied agencies will be separately instructed about the access and requirements. Incidents are subject to these rules.

(6) Providers and allied agencies that continue to use only paper formats for claims transactions are only subject to the confidentiality and security rule, OAR 407-120-0170.

History

Statutory/Other Authority: ORS 409.050 & 414.065
Statutes/Other Implemented: ORS 414.065
DHSD 13-2011, f. & cert. ef. 12-27-11
DHSD 5-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11
DHSD 1-2008, f. & cert. ef. 2-1-08
DHSD 13-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08

Or. Admin. R. 407-120-0114 Provider Enrollment Agreement

(1) When a provider applies to enroll, the application form will include information about how to participate in the web portal for use of DDE and automated voice response (AVR) inquiries. The enrollment agreement will include a section describing the process that will permit the provider, once enrolled, to participate in DDE over the Internet using the secure Department web portal. This does not include providers enrolled through the use of the DMAP 3108 Managed Care Plan and FFS Non Paid Provider Application.

(2) When the provider number is issued by the Department, the provider will also receive two PINs: one that may be used to access the web portal and one that may be used for AVR.

(a) If the PINs are not activated within 60 days of issuance, the Department will initiate a process to inactivate the PIN. If the provider wants to use PIN-based access to the web portal or AVR after deactivation, the provider must submit an update form to obtain another PIN.

(b) Activating the PIN will require Internet access and the provider must supply security data that will be associated with the use of the PIN.

(c) Providers using the PIN are responsible for protecting the confidentiality and security of the PIN pursuant to OAR 407-120-0170.

History

Statutory/Other Authority: ORS 409.050 & 414.065
Statutes/Other Implemented: ORS 414.065
DHSD 13-2011, f. & cert. ef. 12-27-11
DHSD 5-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11
DHSD 1-2008, f. & cert. ef. 2-1-08
DHSD 13-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08

Or. Admin. R. 407-120-0116 Web Portal Submitter

(1) Any provider activating their web portal access for web portal submission may be a web portal submitter. The provider will be referred to as the web portal submitter when functioning in that capacity, and shall be required to comply with these rules governing web portal submitters.

(2) The authorized signer of the provider enrollment agreement shall be the individual who is responsible for the provider’s DDE claims submission process.

(a) If a provider submits their own claims directly, the provider will be referred to as the web portal submitter when functioning in that capacity and shall be required to comply with these rules governing web portal submitters.

(b) If a provider uses an agent or clinic to submit DDE claims using the Department’s web portal, the agent or clinic will be referred to as the web portal submitter when functioning in that capacity and shall be required to comply with these rules governing web portal submitters.

History

Statutory/Other Authority: ORS 409.050 & 414.065
Statutes/Other Implemented: ORS 414.065
DHSD 1-2008, f. & cert. ef. 2-1-08
DHSD 13-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08

Or. Admin. R. 407-120-0118 Conduct of Direct Data Entry Using Web Portal

(1) The web portal submitter is responsible for the conduct of the DDE transactions submitted on behalf of the provider, as follows:

(a) Accuracy of Web Portal Submissions. The web portal submitter must take reasonable care to ensure that data and DDE transmissions are timely, complete, accurate, and secure, and must take reasonable precautions to prevent unauthorized access to the information system or the DDE transmission. The Department will not correct or modify an incorrect DDE transaction prior to processing. The transactions may be rejected and the web portal submitter will be notified of the rejection.

(b) Cost of Equipment. The web portal submitter and the Department must bear their own information system costs. The web portal submitter must, at their own expense, obtain access to Internet service that is compatible with and has the capacity for secure access to the Department’s web portal. Web portal submitters must pay their own costs for all charges, including but not limited to charges for equipment, software and services, Internet connection and use time, terminals, connections, telephones, and modems. The Department is not responsible for providing technical assistance for access to or use of Internet web portal services or the processing of a DDE transaction.

(c) Format of DDE Transactions. The web portal submitter must send and receive all data transactions in the Department’s approved format. Any attempt to modify or alter the DDE transaction format may result in denial of web portal access.

(d) Re-submissions. The web portal submitter must maintain source documents and back-up files or other means sufficient to re-create a data transmission in the event that re-creation becomes necessary for any purpose, within timeframes required by federal or state law, or by contractual agreement. Back ups, archives, or related files are subject to the terms of these rules to the same extent as the original data transmission.

(2) Security and Confidentiality. To protect security and confidentiality, web portal submitters must comply with the following:

(a) Refrain from copying, reverse engineering, disclosing, publishing, distributing, or altering any data or data transmissions, except as permitted by these rules or the contract, or use the same for any purpose other than that which the web portal submitter was specifically given access and authorization by the Department or the provider.

(b) Refrain from obtaining access by any means to any data or the Department’s network and information system for any purpose other than that which the web portal submitter has received express authorization to receive access. If the web portal submitter receives data or data transmissions from the Department which are clearly not intended for the receipt of web portal submitter, the web portal submitter will immediately notify the Department and make arrangements to return or re-transmit the data or data transmission to the Department. After re-transmission, the web portal submitter must immediately delete the data contained in the data transmission from its information system.

(c) Install necessary security precautions to ensure the security of the DDE transmission or records relating to the information system of either the Department or the web portal submitter when the information system is not in active use by the web portal submitter.

(d) Protect and maintain, at all times, the confidentiality of security access codes issued by the Department. Security access codes are strictly confidential and specifically subject, without limitation, to all of the restrictions in OAR 407-120-0170. The Department may change the designated security access codes at any time and in any manner as the Department in its sole discretion considers necessary.

(e) Install, maintain, and use security measures for confidential information transmitted between a provider and the web portal submitter if a provider uses an agent or clinic as the web portal submitter.

History

Statutory/Other Authority: ORS 409.050 & 414.065
Statutes/Other Implemented: ORS 414.065
DHSD 1-2008, f. & cert. ef. 2-1-08
DHSD 13-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08

Or. Admin. R. 407-120-0120 Registration Process — EDI Transactions

(1) The EDI transaction process is preferred by providers, PHPs, and allied agencies for conducting batch or real time transactions, rather than the individual data entry process used for DDE. EDI registration is an administrative process governed by these rules. The EDI registration process begins with the submission of a TPA by a provider, PHP, clinic, or allied agency, including all requirements and documentation required by these rules.

(2) Trading partners must be Department providers, PHPs, clinics, or allied agencies with a current Department contract. The Department will not accept a TPA from individuals or entities who do not have a current contract with the Department.

(a) The Department may receive and hold the TPA for individuals or entities that have submitted a provider enrollment agreement or other pending contract, subject to the satisfactory execution of the pending document.

(b) Termination, revocation, suspension, or expiration of the contract will result in the concurrent termination, revocation, suspension, or expiration of the TPA without any additional notice; except that the TPA will remain in effect to the extent necessary for a trading partner or the Department to complete obligations involving EDI under the contract for dates of service when the contract was in effect. Contracts that are periodically renewed or extended do not require renewal or extension of the TPA unless there is a lapse of time between contracts.

(c) Failure to identify a current Department contract during the registration process will result in a rejection of the TPA. The Department will verify that the contract numbers identified by a provider, PHP, clinic, or allied agency are current contracts.

(d) If contract number or contract status changes, the trading partner must provide the Department with updated information within five business days of the change in contract status. If the Department determines that a valid contract no longer exists, the Department shall discontinue EDI transactions applicable for any time period in which the contract no longer exists; except that the TPA will remain in effect to the extent necessary for the trading partner or the Department to complete obligations involving EDI under the contract for dates of service when the contract was in effect.

(3) Trading Partner Agreement. To register as a trading partner with the Department, a provider, PHP, clinic, or allied agency must submit a signed TPA to the Department.

(4) Application for Authorization. In addition to the requirements of section (3) of this rule, a trading partner must submit an application for authorization to the Department. The application provides specific identification and legal authorization from the trading partner for an EDI submitter to conduct EDI transactions on behalf of a trading partner.

(5) Trading Partner Agents. A trading partner may use agents to facilitate the electronic transmission of data. If a trading partner will be using an agent as an EDI submitter, the application for authorization required under section (4) of this rule must identify and authorize an EDI submitter and must include the EDI certification signed by an EDI submitter before the Department may accept electronic submission from or send electronic transmission to an EDI submitter.

(6) EDI Registration. In addition to the requirements of section (3) of this rule, a trading partner must also submit its EDI registration form. This form requires the trading partner or its authorized EDI submitter to register an EDI submitter and the name and type of EDI transaction they are prepared to conduct. Signature of the trading partner or authorized EDI submitter is required on the EDI registration form. The registration form will also permit the trading partner to identify the individuals or EDI submitters who are authorized to submit or receive EDI registered transactions.

(7) Review and Acceptance Process. The Department will review the documentation provided to determine compliance with sections (1) through (6) of this rule. The information provided may be subject to verification by the Department. When the Department determines that the information complies with these rules, the Department will notify the trading partner and EDI submitter by email about any testing or other requirements applicable to place the registered transaction into a production environment.

History

Statutory/Other Authority: ORS 409.050 & 414.065
Statutes/Other Implemented: ORS 414.065
Renumbered from 410-001-0120, DHSD 1-2008, f. & cert. ef. 2-1-08
DMAP 30-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08
OMAP 55-2003, f. & cert. ef. 8-22-03
OMAP 25-2003(Temp), f. & cert. ef. 3-21-03 thru 9-8-03

Or. Admin. R. 407-120-0130 Trading Partner as EDI Submitter – EDI Transactions

(1) A trading partner may be an EDI submitter. Registered trading partners that also qualify as an EDI submitter may submit their own EDI transactions directly to the Department. A trading partner will be referred to as an EDI submitter when functioning in that capacity and will be required to comply with applicable EDI submitter rules, except as provided in section (3) of this rule.

(2) Authorization and Registration Designating Trading Partner as EDI Submitter. Before acting as an EDI submitter, a trading partner must designate in the application for application that they are an EDI submitter who is authorized to send and receive data transmissions in the performance of EDI transactions. A trading partner must complete the “Trading Partner Application for Authorization to Submit EDI Transactions” and the “EDI Submitter Information” required in the application. A trading partner must also submit the EDI registration form identifying them as an EDI submitter. A trading partner must notify the Department of any material changes in the information no less than ten days prior to the effective date of the change.

(3) EDI Submitter Certification Conditions. Where a trading partner is acting as its own EDI submitter, the trading partner is not required to submit the EDI submitter certification conditions in the application for authorization applicable to agents.

History

Statutory/Other Authority: ORS 409.050 & 414.065
Statutes/Other Implemented: ORS 414.065
Renumbered from 410-001-0130, DHSD 1-2008, f. & cert. ef. 2-1-08
DMAP 30-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08
OMAP 55-2003, f. & cert. ef. 8-22-03
OMAP 25-2003(Temp), f. & cert. ef. 3-21-03 thru 9-8-03

Or. Admin. R. 407-120-0140 Trading Partner Agents as EDI Submitters — EDI Transactions

(1) Responsibility for Agents. If a trading partner uses the services of an agent, including but not limited to an EDI submitter in any capacity in order to receive, transmit, store, or otherwise process data or data transmissions or perform related activities, a trading partner shall be fully responsible to the Department for the agent’s acts.

(2) Notices Regarding EDI Submitter. Prior to the commencement of an EDI submitter’s services, a trading partner must designate in the application for authorization the specific EDI submitters that are authorized to send and receive data transmissions in the performance of EDI transactions of a trading partner. A trading partner must complete the “Trading partner Authorization of EDI Submitter” and the “EDI Submitter Information” required in the application. A trading partner must also submit the EDI registration form identifying and providing information about an EDI submitter. A trading partner or authorized EDI submitter must notify the Department of any material changes in the EDI submitter authorization or information no less than five days prior to the effective date of the changes.

(3) EDI Submitter Authority. A trading partner must authorize the actions that an EDI submitter may take on behalf of a trading partner. The application for authorization permits a trading partner to authorize which decisions may only be made by a trading partner and which decisions are authorized to be made by an EDI submitter. The EDI submitter information authorized in the application for authorization will be recorded by the Department in an EDI submitter profile. The Department may reject EDI transactions from an EDI submitter acting without authorization from a trading partner.

(4) EDI Submitter Certification Conditions. Each authorized EDI submitter acting as an agent of a trading partner must execute and comply with the EDI submitter certification conditions that are incorporated into the application for authorization. Failure to include the signed EDI submitter certification conditions with the application shall result in a denial of EDI submitter authorization by the Department. Failure of an EDI submitter to comply with the EDI submitter certification conditions may result in termination of EDI submitter registration for EDI transactions with the Department.

(5) EDI Submitters Responsibilities. In addition to the requirements of section (1) of this rule, a trading partner is responsible for ensuring that an EDI submitter makes no unauthorized changes in the data content of all data transmissions or the contents of an envelope, and that an EDI submitter will take all appropriate measures to maintain the timeliness, accuracy, truthfulness, confidentiality, security, and completeness of each data transmission. A trading partner is responsible for ensuring that its EDI submitters are specifically advised of, and will comply with, the terms of these rules and any TPA.

History

Statutory/Other Authority: ORS 409.050 & 414.065
Statutes/Other Implemented: ORS 414.065
Renumbered from 410-001-0140, DHSD 1-2008, f. & cert. ef. 2-1-08
DMAP 30-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08
OMAP 55-2003, f. & cert. ef. 8-22-03
OMAP 25-2003(Temp), f. & cert. ef. 3-21-03 thru 9-8-03

Or. Admin. R. 407-120-0150 Testing — EDI Transactions

(1) When a trading partner or authorized EDI submitter registers an EDI transaction with the Department, the Department may require testing before authorizing the transaction. Testing may include third party and business-to-business testing. An EDI submitter must be able to demonstrate its capacity to send and receive each transaction type for which it has registered. The Department will reject any EDI transaction if an EDI submitter either refuses or fails to comply with the Department testing requirements.

(2) The Department may require EDI submitters to complete compliance testing at an EDI submitter's expense for each transaction type if either the Department or an EDI submitter has experienced a change to hardware or software applications by entering into business-to-business testing.

(3) When third party or business-to-business testing is completed to the Department's satisfaction, the Department will notify an EDI submitter that it will register and accept the transactions in the production environment. This notification authorizes an EDI submitter to submit the registered EDI transactions to the Department for processing and response, as applicable. If there are any changes in the trading partner or EDI submitter authorization, profile data or EDI registration information on file with the Department, updated information must be submitted to the Department as required in OAR 407-120-0190.

(4) Testing will be conducted using secure electronic media communications methods.

(5) An EDI submitter may be required to re-test with the Department if the Department format changes or if the EDI submitter format changes.

History

Statutory/Other Authority: ORS 409.050 & 414.065
Statutes/Other Implemented: ORS 414.065
DHSD 13-2011, f. & cert. ef. 12-27-11
DHSD 5-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11
Renumbered from 410-001-0150, DHSD 1-2008, f. & cert. ef. 2-1-08
DMAP 30-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08
OMAP 55-2003, f. & cert. ef. 8-22-03
OMAP 25-2003(Temp), f. & cert. ef. 3-21-03 thru 9-8-03

Or. Admin. R. 407-120-0160 Conduct of Transactions — EDI Transactions

(1) EDI Submitter Obligations. An EDI submitter is responsible for the conduct of the EDI transactions registered on behalf of a trading partner, including the following:

(a) EDI Transmission Accuracy. An EDI submitter shall take reasonable care to ensure that data and data transmissions are timely, complete, accurate, and secure; and shall take reasonable precautions to prevent unauthorized access to the information system, the data transmission, or the contents of an envelope which is transmitted either to or from the Department. The Department will not correct or modify an incorrect transaction prior to processing. The transaction may be rejected and an EDI submitter notified of the rejection.

(b) Re-transmission of Indecipherable Transmissions. Where there is evidence that a data transmission is lost or indecipherable, the sending party must make best efforts to trace and re-transmit the original data transmission in a manner which allows it to be processed by the receiving party as soon as practicable.

(c) Cost of Equipment. An EDI submitter and the Department will pay for their own information system costs. An EDI submitter shall, at its own expense, obtain and maintain its own information system. An EDI submitter shall pay its own costs for all charges related to data transmission including, without limitation, charges for information system equipment, software and services, electronic mailbox maintenance, connect time, terminals, connections, telephones, modems, any applicable minimum use charges, and for translating, formatting, sending, and receiving communications over the electronic network to the electronic mailbox, if any, of the Department. The Department is not responsible for providing technical assistance in the processing of an EDI transaction.

(d) Back-up Files. EDI submitters must maintain adequate data archives and back-up files or other means sufficient to re-create a data transmission in the event that re-creation becomes necessary for any purpose, within timeframes required by state and federal law, or by contractual agreement. Data archives or back-up files shall be subject to these rules to the same extent as the original data transmission.

(e) Transmissions Format. Except as otherwise provided herein, EDI submitters must send and receive all data transmissions in the federally mandated format, or (if no federal standard has been promulgated) other formats as the Department designates.

(f) Testing. EDI submitters must, prior to the initial data transmission and throughout the term of a TPA, test and cooperate with the Department in the testing of information systems as the Department considers reasonably necessary to ensure the accuracy, timeliness, completeness, and confidentiality of each data transmission.

(2) Security and Confidentiality. To protect security and confidentiality of transmitted data, EDI submitters must comply with the following:

(a) Refrain from copying, reverse engineering, disclosing, publishing, distributing, or altering any data, data transmissions, or the contents of an envelope, except as necessary to comply with the terms of these rules or the TPA, or use the same for any purpose other than that which an EDI submitter was specifically given access and authorization by the Department or a trading partner;

(b) Refrain from obtaining access by any means to any data, data transmission, envelope, mailbox, or the Department’s information system for any purpose other than that which an EDI submitter has received express authorization. If an EDI submitter receives data or data transmissions from the Department which clearly are not intended for an EDI submitter, an EDI submitter shall immediately notify the Department and make arrangements to return or re-transmit the data or data transmission to the Department. After re-transmission, an EDI submitter shall immediately delete the data contained in the data transmission from its information system;

(c) Install necessary security precautions to ensure the security of the information systems or records relating to the information systems of either the Department or an EDI submitter when the information system is not in active use by an EDI submitter;

(d) Protect and maintain the confidentiality of security access codes issued by the Department to an EDI submitter; and

(e) Provide special protection for security and other purposes, where appropriate, by means of authentication, encryption, the use of passwords, or other means. Unless otherwise provided in these rules, the recipient of a protected data transmission must at least use the same level of protection for any subsequent transmission of the original data transmission.

(3) Department Obligations. The Department shall:

(a) Make available to an EDI submitter, by electronic media, those types of data and data transmissions which an EDI submitter is authorized to receive.

(b) Inform an EDI submitter of acceptable formats in which data transmissions may be made and provide notification to an EDI submitter within reasonable time periods consistent with HIPAA transaction standards, if applicable, or at least 30 days prior by electronic notice of other changes in formats.

(c) Provide an EDI submitter with security access codes that will allow an EDI submitter access to the Department’s information system. Security access codes are strictly confidential and EDI submitters must comply with all of the requirements of OAR 407-120-0170. The Department may change the designated security access codes at any time and manner as the Department, in its sole discretion, deems necessary. The release of security access codes shall be limited to authorized electronic data personnel of an EDI submitter and the Department with a need to know.

History

Statutory/Other Authority: ORS 409.050 & 414.065
Statutes/Other Implemented: ORS 414.065
Renumbered from 410-001-0160, DHSD 1-2008, f. & cert. ef. 2-1-08
DMAP 30-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08
OMAP 55-2003, f. & cert. ef. 8-22-03
OMAP 25-2003(Temp), f. & cert. ef. 3-21-03 thru 9-8-03

Or. Admin. R. 407-120-0165 Pharmacy Point of Sale Access

Pharmacy providers who electronically bill pharmaceutical claims must participate in and submit claims using the POS system, except as provided in OAR 410-121-0150.

History

Statutory/Other Authority: ORS 409.050 & 414.065
Statutes/Other Implemented: ORS 414.065
DHSD 1-2008, f. & cert. ef. 2-1-08
DHSD 13-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08

Or. Admin. R. 407-120-0170 Confidentiality and Security

(1) Individually Identifiable Health Information. All providers, PHPs, and allied agencies are responsible for ensuring the confidentiality of individually identifiable health information, consistent with the requirements of the privacy statutes and regulations, and shall take reasonable action to prevent any unauthorized disclosure of confidential information by a provider, PHP, allied agency, or other agent. A provider, web portal submitter, trading partner, EDI submitter, or other agent must comply with any and all applicable privacy statutes and regulations relating to confidential information.

(2) General Requirements for Electronic Submitters. A provider (web portal submitter), trading partner (EDI submitter), or other agent must maintain adequate security procedures to prevent unauthorized access to data, data transmissions, security access codes, or the Department’s information system, and must immediately notify the Department of all unauthorized attempts by any individual or entity to obtain access to or otherwise tamper with the data, data transmissions, security access codes, or the Department’s information system.

(3) Notice of Unauthorized Disclosures. All providers, PHPs, and allied agencies must promptly notify the Department of all unlawful or unauthorized disclosures of confidential information that come to its agents’ attention, and shall cooperate with the Department if corrective action is required by the Department. The Department will promptly notify a provider, PHP, or allied agency of all unlawful or unauthorized disclosures of confidential information in relation to a provider, PHP, or allied agency that come to the Department’s or its agents’ attention, and will cooperate with a provider, PHP, or allied agency if corrective action is required.

(4) Wrongful use of the web portal, EDI systems, or the Department’s network and information system, or wrongful use or disclosure of confidential information by a provider, allied agency, electronic submitters, or their agents may result in the immediate suspension or revocation of any access granted under these rules or other Department rules, at the sole discretion of the Department.

(5) A provider, allied agency, PHP, or electronic submitter must report to the Department’s Information Security Office at dhsinfo.security@state.or.us and to the Department program contact individual, any privacy or security incidents that compromise, damage, or cause a loss of protection to confidential information, information assets, or the Department’s network and security system. Reports must be made in the following manner:

(a) No later than five business days from the date on which a provider, allied agency, PHP, or electronic submitter becomes aware of the incident; and

(b) Provide the results of the incident assessment findings and resolution strategies no later than 30 business days after the report is due under section (4)(a).

(6) A provider, allied agency, PHP, or electronic submitter must comply with the Department’s requests for corrective action concerning a privacy or security incident and with applicable laws requiring mitigation of harm caused by the unauthorized use or disclosure of confidential information.

History

Statutory/Other Authority: ORS 409.050 & 414.065
Statutes/Other Implemented: ORS 414.065
Renumbered from 410-001-0170, DHSD 1-2008, f. & cert. ef. 2-1-08
DMAP 30-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08
OMAP 55-2003, f. & cert. ef. 8-22-03
OMAP 25-2003(Temp), f. & cert. ef. 3-21-03 thru 9-8-03

Or. Admin. R. 407-120-0180 Record Retention and Audit

(1) Records Retention. A provider, web portal submitter, trading partner, and EDI submitter shall maintain, for a period of no less than seven years from the date of service, complete, accurate, and unaltered copies of all source documents associated with all data transmissions.

(2) EDI Trade Data Log. An EDI submitter must establish and maintain a trade data log that must record all data transmissions taking place between an EDI submitter and the Department during the term of a TPA. A trading partner and EDI submitter must take necessary and reasonable steps to ensure that the trade data log constitutes a current, truthful, accurate, complete, and unaltered record of all data transmissions between the parties and must be retained by each party for no less than 24 months following the date of the data transmission. The trade data log may be maintained on electronic media or other suitable means provided that, if necessary, the information may be timely retrieved and presented in readable form.

(3) Right to Audit. A provider must allow and require any web portal submitter to allow, and a trading partner must allow and require an EDI submitter or other agent to allow access to the Department, the Oregon Secretary of State, the Oregon Department of Justice Medicaid Fraud Unit, or its designees, and DHHS or its designees to audit relevant business records, source documents, data, data transmissions, trade data logs, or information systems of a provider and its web portal submitter, and a trading partner, and its agents, as necessary, to ensure compliance with these rules. A provider must allow and require its web portal submitter to allow, and a trading partner must allow and require an EDI submitter or other agent to allow the Department, or its designee, access to ensure that adequate security precautions have been made and are implemented to prevent unauthorized disclosure of any data, data transmissions, or other information.

History

Statutory/Other Authority: ORS 409.050 & 414.065
Statutes/Other Implemented: ORS 414.065
Renumbered from 410-001-0180, DHSD 1-2008, f. & cert. ef. 2-1-08
DMAP 30-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08
OMAP 55-2003, f. & cert. ef. 8-22-03
OMAP 25-2003(Temp), f. & cert. ef. 3-21-03 thru 9-8-03

Or. Admin. R. 407-120-0190 Material Changes

(1) Changes in Any Material Information – EDT Process. A trading partner must submit an updated TPA, application for authorization, or EDI registration form to the Department within ten business days of any material change in information. A material change includes but is not limited to mailing or email address change, contract number or contract status (termination, expiration, extension), identification of authorized individuals of a trading partner or EDI submitter, the addition or deletion of authorized transactions, or any other change that may affect the accuracy of or authority for an EDI transaction. The Department may act on data transmissions submitted by a trading partner and its EDI submitter based on information on file in the application for authorization and EDI registration forms until an updated form has been received and approved by the Department. A trading partner’s signature or the signature of an authorized EDI submitter is required to ensure that an updated TPA, authorization, or EDI registration form is valid and authorized.

(2) Changes in Any Material Information – Web Portal Access. Providers must submit an updated web portal registration form to the Department within ten business days of any material changes in information. A material change includes but is not limited to mailing or email address change, contract number or contract status (termination, suspension, expiration), identification of web portal submitter contact information, or any other change that may affect the accuracy of or authority for a DDE transaction. The Department is authorized to act on data transmissions submitted by a provider and its web portal submitter based on information on file in the web portal registration form until an updated form has been received and approved by the Department. A provider’s signature or the signature of an authorized business representative is required to ensure that an updated web portal registration form is valid and authorized.

(3) Failure to submit a timely updated form may impact the ability of a data transaction to be processed without errors. Failure to submit a signed, updated form may result in the rejection of a data transmission.

History

Statutory/Other Authority: ORS 409.050 & 414.065
Statutes/Other Implemented: ORS 414.065
Renumbered from 410-001-0190, DHSD 1-2008, f. & cert. ef. 2-1-08
DMAP 30-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08
OMAP 55-2003, f. & cert. ef. 8-22-03
OMAP 25-2003(Temp), f. & cert. ef. 3-21-03 thru 9-8-03

Or. Admin. R. 407-120-0200 Department System Administration

(1) No individual or entity shall be registered to conduct a web portal or an EDI transaction with the Department except as authorized under these the rules. Eligibility and continued participation as a provider, PHP, allied agency, or web portal submitter in the conduct of DDE transactions, or as a trading partner or EDI submitter in the conduct of registered transactions, is conditioned on the execution and delivery of the documents required in these rules, the continued accuracy of that information consistent with OAR 407-120-0190, and compliance with a requirements of these rules. Data, including confidential information, governed by these rules may be used for purposes related to treatment, payment, and health care operations and for the administration of programs or services by the Department.

(2) In addition to the requirements of section (1) of this rule, in order to qualify as a trading partner:

(a) An individual or entity must be a Department provider, PHP, clinic, or allied agency pursuant to a current valid contract; and

(b) A provider, PHP, clinic, or allied agency must have submitted an executed TPA and all related documentation, including the application for authorization, that identifies and authorizes an EDI submitter.

(3) In addition to the requirements of section (1) of this rule, in order to qualify as an EDI submitter:

(a) A trading partner must have identified the individual or entity as an authorized EDI submitter in the application for authorization;

(b) If a trading partner identifies itself as an EDI submitter, the application for authorization must include the information required in the "Trading Partner Authorization of EDI Submitter" and the "EDI Submitter Information"; and

(c) If a trading partner uses an agent as an EDI submitter, the application for authorization must include the information described in section (3)(b) and the signed EDI submitter certification.

(4) The EDI registration process described in these rules provides the Department with essential profile information that the Department may use to confirm that a trading partner or EDI submitter is not otherwise excluded or disqualified from submitting EDI transactions to the Department.

(5) Nothing in these rules or a TPA prevents the Department from requesting additional information from a trading partner or an EDI submitter to determine their qualifications or eligibility for registration as a trading partner or EDI submitter.

(6) The Department shall deny a request for registration as a trading partner or for authorization of an EDI submitter or an EDI registration if it finds any of the following:

(a) A trading partner or EDI submitter has substantially failed to comply with the applicable administrative rules or laws;

(b) A trading partner or EDI submitter has been convicted of (or entered a plea of nolo contendre) a felony or misdemeanor related to a crime or violation of federal or state public assistance laws or privacy statutes or regulations;

(c) A trading partner or EDI submitter is excluded from participation in the Medicare program, as determined by the DHHS secretary; or

(d) A trading partner or EDI submitter fails to meet the qualifications as a trading partner or EDI submitter.

(7) Failure to comply with these rules, trading partner agreement, or EDI submitter certification or failure to provide accurate information on an application or certification may also result in sanctions and payment recovery pursuant to applicable Department program contracts or rules.

(8) For providers using the DDE submission system by the Department web portal, failure to comply with the terms of these rules, a web portal registration form, or failure to provide accurate information on the registration form may result in sanctions or payment recovery pursuant to the applicable Department program contracts or rules.

History

Statutory/Other Authority: ORS 409.050 & 414.065
Statutes/Other Implemented: ORS 414.065
DHSD 13-2011, f. & cert. ef. 12-27-11
DHSD 5-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11
Renumbered from 410-001-0200, DHSD 1-2008, f. & cert. ef. 2-1-08
DMAP 30-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-28-08
OMAP 55-2003, f. & cert. ef. 8-22-03
OMAP 25-2003(Temp), f. & cert. ef. 3-21-03 thru 9-8-03

Or. Admin. R. 407-120-0300 Definitions

The following definitions apply to OAR 407-120-0300 to 407-120-0400:

(1) "Abuse" means provider practices that are inconsistent with sound fiscal, business, or medical practices resulting in an unnecessary cost to the Department, or in reimbursement for services that are not medically necessary or that fail to meet professionally recognized standards for health care. It also includes actions by clients or recipients that result in unnecessary cost to the Department.

(2) "Advance Directive" means a form that allows an individual to have another individual make health care decisions when he or she cannot make decisions and informs a doctor if the individual does not want any life sustaining help if he or she is near death.

(3) "Benefit Package" means the package of covered health care services for which the client is eligible.

(4) "Billing Agent or Billing Service" means a third party or organization that contracts with a provider to perform designated services in order to facilitate claim submission or electronic transactions on behalf of the provider.

(5) "Billing Provider" means an individual, agent, business, corporation, clinic, group, institution, or other entity who, in connection with submission of claims to the Department, receives or directs payment from the Department on behalf of a performing provider and has been delegated the authority to obligate or act on behalf of the performing provider.

(6) "Children's Health Insurance Program (CHIP)" means a federal and state funded portion of the Oregon Health Plan (OHP) established by Title XXI of the Social Security Act and administered by the Division of Medical Assistance Programs (DMAP).

(7) "Claim" means a bill for services, a line item of a service, or all services for one client within a bill. Claim includes a bill or an encounter associated with requesting reimbursement, whether submitted on paper or electronically. Claim also includes any other methodology for requesting reimbursement that may be established in contract or program-specific rules.

(8) "Client or Recipient" means an individual found eligible by the Department to receive services under the OHP demonstration, medical assistance program, or other public assistance programs administered by the Department. The following OHP categories are eligible for enrollment:

(a) Temporary Assistance to Needy Families (TANF) are categorically eligible families with income levels under current TANF eligibility rules;

(b) CHIP children under one year of age whose household has income under 185% Federal Poverty Level (FPL) and do not meet one of the other eligibility classifications;

(c) Poverty Level Medical (PLM) adults under 100% of the FPL are clients who are pregnant women with income under 100% of FPL;

(d) PLM adults over 100% of the FPL are clients who are pregnant women with income between 100% and 185% of the FPL;

(e) PLM children under one year of age who have family income under 133% of the FPL or were born to mothers who were eligible as PLM adults at the time of the child's birth;

(f) PLM or CHIP children one through five years of age who have family income under 185% of the FPL and do not meet one of the other eligibility classifications;

(g) PLM or CHIP children six through 18 years of age who have family income under 185% of the FPL and do not meet one of the other eligibility classifications;

(h) OHP adults and couples are clients age 19 or over and not Medicare eligible, with income below 100% of the FPL who do not meet one of the other eligibility classifications, and do not have an unborn child or a child under age 19 in the household;

(i) OHP families are clients, age 19 or over and not Medicare eligible, with income below 100% of the FPL who do not meet one of the other eligibility classifications, and have an unborn child or a child under the age of 19 in the household;

(j) General Assistance (GA) recipients are clients who are eligible by virtue of their eligibility under the GA program, ORS 411.710 et seq.;

(k) Assistance to Blind and Disabled (AB/AD) with Medicare eligibles are clients with concurrent Medicare eligibility with income levels under current eligibility rules;

(l) AB/AD without Medicare eligibles are clients without Medicare with income levels under current eligibility rules;

(m) Old Age Assistance (OAA) with Medicare eligibles are clients with concurrent Medicare Part A or Medicare Parts A and B eligibility with income levels under current eligibility rules;

(n) OAA with Medicare Part B only are OAA eligibles with concurrent Medicare Part B only income under current eligibility rules;

(o) OAA without Medicare eligibles are clients without Medicare with income levels under current eligibility rules; or

(p) Children, Adults and Families (CAF) children are clients with medical eligibility determined by CAF or Oregon Youth Authority (OYA) receiving OHP under ORS 414.025, 418.034, and 418.187 to 418.970. These individuals are generally in placement outside of their homes and in the care or custody of CAF or OYA.

(9) "Client Representative" means an individual who can make decisions for clients who are not able to make such decisions themselves. For purposes of medical assistance, a client representative may be, in the following order of priority, an individual who is designated as the client's health care representative under ORS 127.505(12), a court-appointed guardian, a spouse or other family member as designated by the client, the individual service plan team (for developmentally disabled clients), a Department case manager, or other Department designee. To the extent that other Department programs recognize other individuals who may act as a client representative, that individual may be considered the client representative in accordance with program-specific rules or applicable contracts.

(10) "Clinical Records" means the medical, dental, or mental health records of a client. These records include the Primary Care Provider (PCP) records, the inpatient and outpatient hospital records and the Exceptional Needs Care Coordinator (ENCC), complaint and disenrollment for cause records which may be located in the Prepaid Health Plan (PHP) administrative offices.

(11) "Conviction or Convicted" means that a judgment of conviction has been entered by a federal, state, or local court, regardless of whether an appeal from that judgment is pending.

(12) "Covered Services" means medically appropriate health services or items that are funded by the legislature and described in ORS chapter 414, including OHP authorized under ORS 414.705 to 414.750, and applicable Department rules describing the benefit packages of covered services except as excluded or limited under OAR 410-141-0500 or such other public assistance services provided to eligible clients under program-specific requirements or contracts by providers required to enroll with the Department under OAR 407-120-0300 to 407-120-0400.

(13) "Date of Service" means the date on which the client receives medical services or items, unless otherwise specified in the appropriate provider rules.

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

(15) "Diagnosis Code" means the code as identified in the International Classification of Diseases, 9th Revision, Clinical Modification (ICD-9-CM). The primary diagnosis code is shown in all billing claims and PHP encounters, unless specifically excluded in individual provider rules. Where they exist, diagnosis codes must be shown to the degree of specificity outlined in OAR 407-120-0340 (claim and PHP encounter submission).

(16) "Electronic Data Transaction (EDT)" means the electronic exchange of business documents from application to application in a federally mandated format or, if no federal standard has been promulgated, conducted by either web portal or electronic data interchange in accordance with the Department's electronic data transaction rule (OAR 407-120-0100 to 407-120-0200).

(17) "Exclusion" means the Department shall not reimburse a specific provider who has defrauded or abused the Department for items or services that a provider furnished.

(18) "False Claim" means a claim or PHP encounter that a provider knowingly submits or causes to be submitted that contains inaccurate or misleading information, and that information would result, or has resulted, in an overpayment or improper use for per capita cost calculations.

(19) "Fraud" means an intentional deception or misrepresentation made by an individual with the knowledge that the deception could result in some unauthorized benefit to himself or herself, or some other individual. It includes any act that constitutes fraud or false claim under applicable federal or state law.

(20) "Healthcare Common Procedure Coding System (HCPCS)" means a method for reporting health care professional services, procedures and supplies. HCPCS consists of the Level 1 — American Medical Association's Physicians' Current Procedural Terminology (CPT), Level II — National Codes and Level III — Local Codes.

(21) "Health Insurance Portability and Accountability Act (HIPAA)" means a federal law (Public Law 104-191, August 21, 1996) with the legislative objective to assure health insurance portability, reduce health care fraud and abuse, enforce standards for health information and guarantee security and privacy of health information.

(22) "Hospice" means a public agency or private organization or subdivision of either that is primarily engaged in providing care to terminally ill individuals, is certified for Medicare, accredited by the Oregon Hospice Association, and is listed in the Hospice Program Registry.

(23) "Individual Adjustment Request" means a form (DMAP 1036) used to resolve an incorrect payment on a previously paid claim, including underpayments or overpayments.

(24) "Medicaid" means 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.

(25) "Medicaid Management Information System (MMIS)" means the automated claims processing and information retrieval system for handling all Medicaid transactions. The objectives of the system include verifying provider enrollment and client eligibility, managing health care provider claims and benefit package maintenance, and addressing a variety of Medicaid business needs.

(26) "Medical Assistance Program" means a program for payment of health care provided to eligible Oregonians. Oregon's medical assistance program includes Medicaid services including the OHP Medicaid Demonstration, and CHIP. The medical assistance program is administered and coordinated by DMAP, a division of the Department.

(27) "Medically Appropriate" means services and medical supplies that are required for prevention, diagnosis, or treatment of a health condition that encompasses physical or mental conditions, or injuries and which are:

(a) Consistent with the symptoms or treatment of a health condition;

(b) Appropriate with regard to standards of good health practice and generally recognized by the relevant scientific community, evidence based medicine, and professional standards of care as effective;

(d) The most cost effective of the alternative levels of medical services or medical supplies that can be safely provided to a client in the provider's judgment.

(28) "Medicare" means the federal health insurance program for the aged and disabled administered by the Centers for Medicare and Medicaid Services (CMS) under Title XVIII of the Social Security Act.

(29) "National Provider Identification (NPI)" means a federally directed provider number mandated for use on HIPAA covered transactions by individuals, provider organizations, and subparts of provider organizations that meet the definition of health care provider (45 Code of Federal Regulations (CFR) 160.103) and who conduct HIPAA covered transactions electronically.

(30) "Non-Covered Services" means services or items for which the Department is not responsible for payment. Non-covered services are identified in:

(a) OAR 410-120-1200, Excluded Services and Limitations;

(b) OAR 410-120-1210, Medical Assistance Benefit Packages and Delivery System;

(d) OAR 410-141-0520, Prioritized List of Health Services; and

(e) The individual Department provider rules, program-specific rules, and contracts.

(31) "Non-Participating Provider" means a provider who does not have a contractual relationship with the PHP.

(32) "Nursing Facility" means a facility licensed and certified by the Department's Seniors and People with Disabilities Division (SPD) defined in OAR 411-070-0005.

(33) "Oregon Health Plan (OHP)" means the Medicaid demonstration project that expands Medicaid eligibility to eligible clients. The OHP relies substantially upon prioritization of health services and managed care to achieve the public policy objectives of access, cost containment, efficacy, and cost effectiveness in the allocation of health resources.

(34) "Out-of-State Providers" means any provider located outside the borders of Oregon:

(a) Contiguous area providers are those located no more than 75 miles from the border of Oregon;

(b) Non-contiguous area providers are those located more than 75 miles from the borders of Oregon.

(35) "Post-Payment Review" means review of billings or other medical information for accuracy, medical appropriateness, level of service, or for other reasons subsequent to payment of the claim.

(36) "Prepaid Health Plan (PHP)" means a managed health, dental, chemical dependency, physician care organization, or mental health care organization that contracts with DMAP or Addictions and Mental Health Division (AMH) on a case managed, prepaid, capitated basis under the OHP. PHP's may be a Dental Care Organization (DCO), Fully Capitated Health Plan (FCHP), Mental Health Organization (MHO), Primary Care Organization (PCO) or Chemical Dependency Organization (CDO).

(37) "Prohibited Kickback Relationships" means remuneration or payment practices that may result in federal civil penalties or exclusion for violation of 42 CFR 1001.951.

(38) "PHP Encounter" means encounter data submitted by a PHP or by a provider in connection with services or items reimbursed by a PHP.

(39) "Prior Authorization" means payment authorization for specified covered services or items given by Department staff, or its contracted agencies, or a county if required by the county, prior to provision of the service. A physician or other referral is not a prior authorization.

(40) "Provider" means an individual, facility, institution, corporate entity, or other organization which supplies health care or other covered services or items, also termed a performing provider, that must be enrolled with the Department in accordance with OAR 407-120-0300 to 407-120-0400 to seek reimbursement from the Department, including services provided, under program-specific rules or contracts with the Department or with a county or PHP.

(41) "Quality Improvement" means the effort to improve the level of performance of key processes in health services or health 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 where "quality of care is the degree to which health services for individuals and populations increase the likelihood of desired health outcomes and are consistent with current professional knowledge."

(42) "Quality Improvement Organization (QIO)" means an entity which has a contract with CMS under Part B of Title XI to perform utilization and quality control review of the health care furnished, or to be furnished, to Medicare and Medicaid clients; formerly known as a "Peer Review Organization."

(43) "Remittance Advice" means the automated notice a provider receives explaining payments or other claim actions.

(44) "Subrogation" means the right of the state to stand in place of the client in the collection of third party resources, including Medicare.

(45) "Suspension" means a sanction prohibiting a provider's participation in the Department's medical assistance or other programs by deactivation of the assigned provider number for a specified period of time or until the occurrence of a specified event.

(46) "Termination" means a sanction prohibiting a provider's participation in the Department's programs by canceling the assigned provider number and agreement unless:

(a) The exceptions cited in 42 CFR 1001.221 are met; or

(b) Otherwise stated by the Department at the time of termination.

(47) "Third Party Resource (TPR)" means a medical or financial resource, including Medicare, which, by law, is available and applicable to pay for covered services and items for a medical assistance client.

(48) "Usual Charge" means when program-specific or contract reimbursement is based on usual charge, and is the lesser of the following, unless prohibited from billing by federal statute or regulation:

(a) The provider's charge per unit of service for the majority of non-medical assistance users of the same service based on the preceding month's charges;

(b) The provider's lowest charge per unit of service on the same date that is advertised, quoted, or posted. The lesser of these applies regardless of the payment source or means of payment; or

(c) Where the provider has established a written sliding fee scale based upon income for individuals and families with income equal to or less than 200% of the FPL, the fees paid by these individuals and families are not considered in determining the usual charge. Any amounts charged to TPR must be considered.

(49) "Visit Data" means program-specific or contract data collection requirements associated with the delivery of service to clients on the basis of an event such as a visit.

History

Statutory/Other Authority: ORS 409.050 & 411.060
Statutes/Other Implemented: ORS 414.115, 414.125, 414.135 & 414.145
DHSD 11-2008, f. 12-26-08, cert. ef. 12-27-08
DHSD 6-2008(Temp), f. & cert. ef. 7-1-08 thru 12-27-08
DHSD 15-2007, f. 12-31-07, cert. ef. 1-1-08

Or. Admin. R. 407-120-0310 Provider Requirements

(1) Scope of Rule. All providers seeking reimbursement from the Department, a PHP, or a county pursuant to a county agreement with the Department for the provision of covered services or items to eligible recipients, must comply with these rules, OAR 407-120-0300 to 407-120-0400, and the applicable rules or contracts of the specific programs described below:

(a) Programs administered by DMAP including the OHP and the medical assistance program that reimburses providers for services or items provided to eligible recipients, including but not limited to chapter 410, division 120; chapter 410, division 141; and provider rules in chapter 410 applicable to the provider’s service category;

(b) Programs administered by AMH that reimburse providers for services or items provided to eligible AMH recipients; or

(2) Visit Data. Department programs use visit data to monitor service delivery, planning, and quality improvement activities. Visit data is required to be submitted by a program-specific rule or contract. A provider is required to make accurate, complete, and timely submission of visit data. Visit data is not a HIPAA transaction and does not constitute a claim for reimbursement.

(3) CHIP and Medicaid-Funded Covered Services and Items.

(a) Covered services or items paid for with Medicaid (Title XIX) and CHIP (Title XXI) funds (referred to as the medical assistance program) are also subject to federal and state Medicaid rules and requirements. In interpreting these rules and program-specific rules or contracts, the Department shall construe them as much as possible in a manner that shall comply with federal and state medical assistance program laws and regulations, and the terms and conditions of federal waivers and the state plans

(b) If a provider is reimbursed with medical assistance program funds, the provider must comply with all applicable federal and state laws and regulations pertaining to the provision of Medicaid services under the Medicaid Act, Title XIX, 42 United States Code (USC) 1396 et. seq., and CHIP services under Title XXI, including without limitation:

(A) Maintaining all records necessary to fully disclose the extent of the services provided to individuals receiving medical assistance and furnish such information to any state or federal agency responsible for administration or oversight of the medical assistance program regarding any payments claimed by an individual or institution for providing Medicaid services as the state or federal agency may from time to time request;

(B) Complying with all disclosure requirements of 42 CFR 1002.3(a) and 42 CFR 455 subpart (B);

(C) Maintaining written notices and procedures respecting advance directives in compliance with 42 USC 1396(a)(57) and (w), 42 CFR 431.107(b)(4), and 42 CFR 489 subpart I;

(D) Certifying that the information is true, accurate and complete when submitting claims or PHP encounters for the provision of medical assistance services or items. Submission of a claim or PHP encounter constitutes a representation of the provider's understanding that payment of the claim shall be from federal or state funds, or both, and that any falsification or concealment of a material fact may result in prosecution under federal or state laws.

(c) Hospitals, nursing facilities, home health agencies (including those providing personal care), hospices, and HMOs must comply with the Patient Self-Determination Act as set forth in Section 4751 of OBRA 1991. To comply with the obligation under the above-listed laws to deliver information on the rights of the individual under Oregon law to make health care decisions, the named providers and organizations must give capable individuals over the age of 18 a copy of "Your Right to Make Health Care Decisions in Oregon," copyright 1993, by the Oregon State Bar Health Law Section. Out-of-state providers of these services should comply with Medicare and Medicaid regulations in their state. Submittal to the Department of the appropriate claim form requesting payment for medical services provided to a Medicaid eligible shall be considered representation to the Department of the medical provider's compliance with the above-listed laws.

(d) Payment for any service or item furnished by a provider of CHIP or Medicaid-funded services or items may not be made by or through (directly or by power of attorney) any individual or organization, such as a collection agency or service bureau, that advances money to a provider for accounts receivable that the provider has assigned, sold, or transferred to the individual or organization for an added fee or a deduction of a portion of the accounts receivable.

(e) The Department shall make medical assistance provider payments only to the following:

(A) The provider who actually performed the service or provided the item;

(B) In accordance with a reassignment from the provider to a government agency or reassignment by a court order;

(C) To the employer of the provider, if the provider is required as a condition of employment to turn over his or her fees to the employer, and the employer is enrolled with the Department as a billing provider;

(D) To the facility in which the service is provided, if the provider has a contract under which the facility submits the claim, and the facility is enrolled with the Department as a billing provider;

(E) To a foundation, PHP, clinic, or similar organization operating as an organized health care delivery system, if the provider has a contract under which the organization submits the claim, and the organization is enrolled with the Department as a billing provider; or

(F) To an enrolled billing provider, such as a billing service or an accounting firm that, in connection with the submission of claims, receives or directs payments in the name of the provider, if the billing provider's compensation for this service is:

(i) Related to the cost of processing the billing;

(ii) Not related on percentage or other basis to the amount that is billed or collected and not dependent upon the collection of the payment.

(f) Providers must comply with TPR requirements in program-specific rules or contracts.

(4) Program Integrity. The Department uses several approaches to promote program integrity. These rules describe program integrity actions related to provider payments, including provider reimbursement under program-specific rules, county agreements, and contracts. The program integrity goal is to pay the correct amount to a properly enrolled provider for covered services provided to an eligible client according to the program-specific coverage criteria in effect on the date of service.

(a) Program integrity activities include but are not limited to the following:

(A) Medical or professional review including but not limited to following the evaluation of care in accordance with evidence-based principles, medical error identification, and prior authorization processes, including all actions taken to determine the coverage and appropriateness of services or items in accordance with program-specific rules or contract;

(B) Provider obligations to submit correct claims and PHP encounters;

(D) Implementation of HIPAA electronic transaction standards to improve accuracy and timeliness of claims processing and encounter reporting;

(E) Provider credentialing activities;

(F) Accessing federal Department of Health and Human Services (DHHS) database (exclusions);

(G) Quality improvement activities;

(H) Cost report settlement processes;

(I) Audits;

(J) Investigation of false claims, fraud or prohibited kickback relationships; and

(K) Coordination with the Department of Justice Medicaid Fraud Control Unit (MFCU) and other health oversight authorities.

(b) The following individuals may review a request for services or items, or audit a claim or PHP encounter for care, services, or items, before or after payment, for assurance that the specific care, item, or service was provided in accordance with the program-specific and the generally accepted standards of a provider's field of practice or specialty:

(A) Department staff or designee;

(B) Medical utilization and professional review contractor;

(D) Federal or state oversight authority.

(c) Payment may be denied or subject to recovery if the review or audit determines the care, service, or item was not provided in accordance with provider rules or does not meet the criteria for quality or medical appropriateness of the care, service, or item or payment. Related provider and hospital billings shall also be denied or subject to recovery.

(d) If the Department determines that an overpayment has been made to a provider, the amount of overpayment is subject to recovery.

(e) The Department may communicate with and coordinate any program integrity actions with the MFCU, DHHS, and other federal and state oversight authorities.

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

History

Statutory/Other Authority: ORS 409.050 & 411.060
Statutes/Other Implemented: ORS 414.115, 414.125, 414.135 & 414.1455
DHSD 11-2008, f. 12-26-08, cert. ef. 12-27-08
DHSD 6-2008(Temp), f. & cert. ef. 7-1-08 thru 12-27-08
DHSD 15-2007, f. 12-31-07, cert. ef. 1-1-08

Or. Admin. R. 407-120-0320 Provider Enrollment

(1) In some Department program areas, being an enrolled Department provider is a condition of eligibility for a Department contract for certain services or activities. The Department requires billing providers to be enrolled as providers consistent with the provider enrollment processes set forth in this rule. If reimbursement for covered services shall be made under a contract with the Department, the provider must also meet the Department's contract requirements. Contract requirements are separate from the requirements of these provider enrollment rules. Enrollment as a provider with the Department is not a guarantee that the enrolled provider shall receive any amount of work from the Department, a PHP, or a county.

(2) Relation to Program-Specific or Contract Requirements. Provider enrollment establishes essential Department provider participation requirements for becoming an enrolled Department provider. The details of provider qualification requirements, client eligibility, covered services, how to obtain prior authorization or review (if required), documentation requirements, claims submission, and available electronic access instructions, and other pertinent instructions and requirements are contained in the program-specific rules or contract.

(3) Criteria for Enrollment. Prior to enrollment, providers must:

(a) Meet all program-specific or contract requirements identified in program-specific rules or contracts in addition to those requirements identified in these rules;

(b) Meet Department contracting requirements, as specified by the Department's Office of Contracts and Procurement (OC&P);

(d) Meet Department and federal certification requirements for the type of service for which the provider is enrolling; and

(e) Obtain a provider number from the Department for the specific service for which the provider is enrolling.

(4) Participation as an Enrolled Provider. Participation with the Department as an enrolled provider is open to qualified providers who:

(a) Meet the qualification requirements established in these rules and program-specific rules or contracts;

(b) Enroll as a Department provider in accordance with these rules;

(c) Provide a covered service or item within their scope of practice and licensure to an eligible Department recipient in accordance with program-specific rules or contracts; and

(d) Accept the reimbursement amounts established with the Department's program-specific fee structures or contracts for the service or item.

(5) Enrollment Process. To be enrolled as a Department provider, an individual or organization must submit a complete and accurate provider enrollment form, available from the Department, including all required documentation, and a signed provider enrollment agreement.

(a) Provider Enrollment Form. The provider enrollment form requests basic demographic information about the provider that shall be permanently associated with the provider or organization until changed on an update form.

(b) Provider and Program Addendum. Each Department program establishes provider-specific qualifications and program criteria that must be provided as part of the provider enrollment form.

(A) The provider must meet applicable licensing and regulatory requirements set forth by federal and state statutes, regulations, and rules, and must comply with all Oregon statutes and regulations applicable to the provider's scope of service as well as the program-specific rules or contract applicable to the provision of covered services. The provider and program addendum shall specify the required documentation of professional qualifications that must be provided with the provider enrollment form.

(B) All providers of services within Oregon must have a valid Oregon business license if such a license is a requirement of the state, federal, county, or city government to operate a business or to provide services. In addition providers must be registered to do business in Oregon by registering with the Oregon Secretary of State, Corporation Division, if registration is required.

(c) Provider Disclosure Form. All individuals and entities are required to disclose information used by the Department to determine whether an exclusion applies that would prevent the Department from enrolling the provider. Individual performing providers must submit a disclosure statement. All providers that are enrolling as an entity (corporation, non-profit, partnership, sole proprietorship, governmental) must submit a disclosure of ownership and control interest statement. The Department shall not make payment to any individual or entity that has been excluded from participation in federal or state programs or that employs or is managed by excluded individuals or entities.

(A) Entities must disclose all the information required on the disclosure of ownership and control interest statement. Entities must disclose the following information: name; address; taxpayer identification number of each individual with an ownership or control interest in the disclosing entity or in any subcontractor in which the disclosing entity has a direct or indirect ownership of five percent or more; whether any of the named individuals are related as spouse, parent, child, sibling, or other family member by marriage or otherwise; and the name and taxpayer identification number of any other disclosing entity in which an individual with an ownership or control interest in the disclosing entity also has an ownership or control interest.

(B) A provider must submit, within 35 days of the date of a request by DHHS or the Department, full and complete information about the ownership of any subcontractor with whom the provider had business transactions totaling more than $25,000 during the 12-month period ending on the date of the request; and any significant business transactions between the provider and any wholly owned supplier, or between the provider and any subcontractor, during the five-year period ending on the date of the request.

(C) Before the Department enters into a provider enrollment agreement with a provider, or renews a provider agreement, or at any time upon written request of the Department, the provider must disclose to the Department the identity and taxpayer identification number of any individual who has an ownership or control interest in the provider; or is an agent or managing employee of the provider; or the individual performing provider that has been convicted of a criminal offense related to that individual's involvement in any program under Medicare, Medicaid, or Title XX services program, since the inception of those programs.

(D) The Department may refuse to enter into or may suspend or terminate a provider enrollment agreement if the individual performing provider or any individual who has an ownership or control interest in the entity, or who is an agent or managing employee of the provider, has been sanctioned or convicted of a criminal offense related to that individual's involvement in any program established under Medicare, Medicaid, Children's Health Insurance, Title XX services, or other public assistance program.

(E) The Department may refuse to enter into or may suspend or terminate a provider enrollment agreement, or contract for provider services, if it determines that the provider did not fully and accurately make any disclosure required under section (5)(c) of this rule.

(F) Taxpayer identification numbers, including social security numbers (SSN) and employer identification numbers (EIN), must be provided where indicated on the Disclosure Statement or the Disclosure of Ownership and Control Interest Statement. The Department shall use the taxpayer identification number to confirm whether the individual or entity is subject to exclusion from participation in the Oregon Medicaid program.

(6) Provider Enrollment Agreement. The provider must sign the provider enrollment agreement, and submit it for review to the Department at the time the provider submits the provider enrollment form and related documentation.

(7) Request to Conduct Electronic Transactions. A provider may request to conduct electronic transactions with the Department by enrolling and completing the appropriate authorization forms in accordance with the electronic data transaction rules (OAR 407-120-0100 to 407-120-0200).

(8) Enrollment of Providers. A provider shall be enrolled, assigned, and issued a provider number for use in specific payment or business operations when the provider meets the following:

(a) Provider submission of a complete and signed (when applicable), provider enrollment form, provider enrollment agreement, provider certification and all required documents to the Department program responsible for enrolling the provider. Provider signature must be the provider or an individual with actual authority from the provider to legally bind the provider.

(b) The Department's verification of licensing or certification or other authority to perform the service or provide the item within the lawful scope of practice recognized under Oregon law. The Department may confirm any information on the provider enrollment form or documentation submitted with the provider enrollment form, and may request additional information; and

(c) The Department's acceptance of the provider enrollment form, provider enrollment agreement, and provider certification by the Department unit responsible for approving the enrollment of the provider.

(9) Claim or Encounter Submission. Submission of a claim or encounter or other reimbursement document constitutes the enrolled provider's agreement that:

(a) The service or item was provided in compliance with all applicable rules and requirements in effect on the date of service;

(b) The provider has created and maintained all records necessary to disclose the extent of services or items provided and provider's compliance with applicable program and financial requirements, and that the provider agrees to make such information available upon request to the Department, the MFCU (for Medicaid-funded services or items), the Oregon Secretary of State, and (for federally-funded services or items) the federal funding authority and the Comptroller General of the United States, or their designees;

(c) The provider understands that payment of the claim or encounter or other reimbursement document shall be from federal or state funds, or a combination of federal and state funds.

(10) Providers Required To Use an NPI. The Department has taken action to ensure compliance with the NPI requirements pursuant to 45 CFR Part 162 when those requirements became effective on May 23, 2007. In the event of a transition period approved by CMS beyond May 23, 2008, the following requirements for contractors, providers, and provider-applicants shall apply:

(a) Providers and contractors that obtain an NPI are required to use their NPI where indicated. In situations where a taxonomy code may be used in conjunction with the NPI, providers must update their records as specified with the Department's provider enrollment unit. Providers applying for enrollment with the Department that have been issued an NPI must include that NPI and any associated taxonomy codes with the provider enrollment form;

(b) A provider enrolled with the Department must bill using the NPI pursuant to 45 CFR part 162.410, in addition to the Department-assigned provider number, where applicable, and continue to bill using the Department assigned provider number until the Department informs the provider that the Department assigned provider number is no longer allowed, or the NPI transition period has ended, whichever occurs first. Failure to use the NPI and Department-assigned provider number as indicated during this transition period may result in delay or rejection of claims and other transactions;

(c) The NPI and applicable taxonomy code combinations shall be cross-referenced to the Department assigned provider number for purposes of processing all applicable electronic transactions as specified in OAR 407-120-0100;

(d) The provider and PHP must cooperate with the Department with reasonable consultation and testing procedures, if any, related to implementation of the use of NPI's; and

(e) Certain provider types are not eligible for an NPI based on federal criteria for obtaining an NPI. Providers not eligible for an NPI must always use their Department provider number on claims, encounters, or other reimbursement documents for that specific provider type.

(11) The effective date of provider enrollment is the date the provider's request is received by the Department if on that date the provider has met all applicable requirements. The effective date may be retroactive for up to one year to encompass dates on which the provider furnished covered services to a medical assistance recipient for which it has not been paid, if the provider met all the applicable requirements on the retroactive effective date.

(12) Provider numbers are specific to the category of service or items authorized by the Department. Issuance of a Department-assigned provider number establishes enrollment of an individual or organization as a provider for the specific category of services covered by the provider and program addendum submitted with the provider enrollment form and enrollment agreement.

(13) Enrolled provides must provide the following updates:

(a) Notify the Department in writing of a material change in any status or condition on any element of their provider enrollment form. Providers must notify the Department in writing within 30 calendar days of the change.

(b) Enrolled providers must notify the Department in writing within 30 calendar days of any changes:

(A) Business affiliation;

(B) Ownership;

(D) Associated taxonomy codes;

(E) Federal Tax Identification number;

(F) Ownership and control information; or

(G) Criminal convictions.

(c) These changes may require the submission of a provider enrollment form, provider enrollment agreement, provider certification, or other related documentation.

(d) Claims submitted by, or payments made to, providers who have not timely furnished the notification of changes or have not submitted any of the items that are required due to a change may be denied or recovered.

(e) Notice of bankruptcy proceedings must be immediately provided to the Department in writing.

(14) Tax Reporting and Withholding.

(a) Providers must submit the provider's SSN for individuals or a federal EIN for entities, whichever is required for tax reporting purposes on IRS Form 1099. Billing providers must submit their SSN or EIN and must also submit the SSN or EIN of all performing providers in connection with claims or payments made to or on behalf of the performing provider. Providing this number is mandatory to be eligible to enroll as a provider. The provider's SSN or EIN is required pursuant to 42 CFR 433.37 federal tax laws at 26 USC 6041. SSN's and EIN's provided pursuant to this authority are used for the administration of state, federal, and local tax laws and the administration of this program for internal verification and administrative purposes including but not limited to identifying the provider for payment and collection activities.

(b) The Department must comply with the tax information reporting requirements of section 6041 of the Internal Revenue Code (26 USC 6041). Section 6041 requires the filing of annual information returns showing amounts paid to providers, who are identified by name, address, and SSN or EIN. The Department files its information returns with the Internal Revenue Service (IRS) using Form 1099MISC.

(c) The IRS Code section 3406(a)(1)(B) requires the Department to begin backup withholding when notified by the IRS that a taxpayer identification number reported on an information return is incorrect. If a provider receives notice of backup withholding from the Department, the provider must comply timely with the notice and provide the Department with accurate information. The Department shall comply with IRS requirements for backup withholding.

(d) Failure to notify the Department of a change in EIN or SSN may result in the Department imposing a sanction as specified in OAR 407-120-0360.

(e) If the Department notifies a provider about an error in federal tax identification number, the provider must supply a valid federal tax identification number within 30 calendar days of the date of the Department's notice. Failure to comply with this requirement may result in the Department imposing a sanction as specified in OAR 407-120-0360, for each time the provider submits an inaccurate federal tax identification number, and may require back-up withholding. Federal tax identification number requirements described in this rule refer to any requirements established by the IRS.

(15) Providers of services to clients outside the State of Oregon shall be enrolled as a provider under section (8) of this rule if they comply with the requirements of section (8) and meet the following conditions:

(a) The provider is appropriately licensed or certified and is enrolled in the provider's home state for participation in that state's Medicaid program or, for non-Medicaid services, enrolled or contracted with the state agency in the provider's state to provide the same program-specific service in the provider's state. Disenrollment or sanction from the other state's Medicaid program, or exclusion from any other federal or state health care program or comparable program-specific service delivery system is a basis for denial of enrollment, termination, or suspension from participation as a Department provider;

(b) The Oregon Board of Pharmacy issued a license to provide pharmacy services to a noncontiguous out-of-state pharmacy provider;

(c) The services must be authorized in the manner required for out-of-state services under the program-specific rules or contract for an eligible client;

(d) The services for which the provider bills are covered services under the OHP or other Department program for which covered services are authorized to be provided to the client;

(e) A facility, including but not limited to a hospital, rehabilitative facility, institution for care of individuals with mental retardation, psychiatric hospital, or residential care facility, is enrolled or contracted by the state agency in the state in which the facility is located or is licensed as a facility provider of services by Oregon; or

(f) If the provider is not domiciled in or registered to do business in Oregon, the provider must promptly provide to the Oregon Department of Revenue and the Oregon Secretary of State, Corporation Division all information required by those agencies relative to the provider enrollment form and provider enrollment agreement. The Department shall withhold enrollment and payments until the out-of-state provider has provided documentation of compliance with this requirement to the Department unit responsible for enrollment.

(16) The provider enrollment agreement may be terminated as follows:

(a) Provider Termination Request. The provider may ask the Department to terminate the provider enrollment agreement at any time, subject to any specific provider termination requirements in program-specific rules or contracts.

(A) The request must be in writing, signed by the provider, and mailed or delivered to the Department provider enrollment unit. The notice must specify the Department-assigned provider number, if known.

(B) When accepted, the Department shall assign the provider number a termination status and effective date of the termination status.

(C) Termination of the provider enrollment agreement does not relieve the provider of any obligations for covered services or items provided under these rules, program-specific rules or contracts in effect for dates of services during which the provider enrollment agreement was in effect.

(b) Department Termination. The Department may terminate the provider enrollment agreement immediately upon notice to the provider, or a later date as the Department may establish in the notice, upon the occurrence of any of the following events:

(A) The Department fails to receive funding, appropriations, limitations, or other expenditure authority at levels that the Department or the specific program determines to be sufficient to pay for the services or items covered under the agreement;

(B) Federal or state laws, regulations, or guidelines are modified or interpreted by the Department in a manner that either providing the services or items under the agreement is prohibited or the Department is prohibited from paying for such services or items from the planned funding source;

(C) The Department has issued a final order revoking the Department-assigned provider number based on a sanction under termination terms and conditions established in program-specific rules or contract;

(D) The provider no longer holds a required license, certificate or other authority to qualify as a provider. The termination shall be effective on the date the license, certificate, or other authority is no longer valid; or

(E) The provider fails to submit any claims for reimbursement for an 18-month period. The provider may reapply for enrollment.

(c) In the event of any dispute arising out of the termination of the provider enrollment agreement, the provider's sole monetary remedy is limited to covered services or items the Department determines to be compensable under the provider agreement, a claim for unpaid invoices, hours worked within any limits set forth in the agreement but not yet billed, and Department-authorized expenses incurred prior to termination. Providers are not entitled to recover indirect or consequential damages. Providers are not entitled to attorney fees, costs, or expenses of any kind.

(17) Immediate Suspension. When a provider fails to meet one or more of the requirements governing participation as a Department enrolled provider, the provider's Department- assigned provider number may be immediately suspended, in accordance with OAR 407-120-0360. The provider shall not provide services or items to clients during a period of suspension. The Department shall deny claims for payment or other reimbursement requests for dates of service during a period of suspension.

(18) The provision of program-specific or contract covered services or items to eligible clients is voluntary on the part of the provider. Providers are not required to serve all clients seeking service. If a provider undertakes to provide a covered service or item to an eligible client, the provider must comply with these rules, program-specific rules or contract.

(a) The provider performs all services, or provides all items, as an independent contractor. The provider is not an officer, employee, or agent of the Department.

(b) The provider must provide employment-related benefits and deductions for its employees that are required by law. The provider is solely responsible for its acts or omissions, including the acts or omissions of its own officers, employees, or agents. The Department’s responsibility is limited to its authorization and payment obligations for covered services or items provided in accordance with these rules.

(19) For Medicaid services, a provider may not deny services to any eligible client because of the client's inability to pay the cost sharing amount imposed by the applicable program-specific or provider-specific rules or contract. A client's inability to pay does not eliminate the client's liability for the cost sharing charge.

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

History

Statutory/Other Authority: ORS 409.050 & 411.060
Statutes/Other Implemented: ORS 414.115, 414.125, 414.135 & 414.145
DHSD 11-2008, f. 12-26-08, cert. ef. 12-27-08
DHSD 6-2008(Temp), f. & cert. ef. 7-1-08 thru 12-27-08
DHSD 15-2007, f. 12-31-07, cert. ef. 1-1-08

Or. Admin. R. 407-120-0325 Compliance with Federal and State Statutes

(1) When a provider submits a claim for services or supplies provided to a Department client, the Department shall consider the submission as the provider’s representation to the Department of the provider's compliance with the applicable sections of the federal and state statutes and rules referenced in this rule, and other program rules or contract requirements of the specific program under which the claim is submitted:

(a) 45 CFR Part 84 which implements Title V, Section 504 of the Rehabilitation Act of 1973;

(b) 42 CFR Part 493 Laboratory Requirements and ORS chapter 438 (Clinical Laboratories).

(c) The provider must comply and, as indicated, require all subcontractors to comply with the following federal and state requirements to the extent that they are applicable to the items and services governed by these rules, unless exempt under 45 CFR Part 87 for Faith-Based Organizations (Federal Register, July 16, 2004, Volume 69, #136), or other federal provisions. For purposes of these rules, all references to federal and state laws are references to federal and state laws as they may be amended from time to time that are in effect on the date of provider’s service:

(A) The provider must comply and require all subcontractors to comply with all federal laws, regulations, executive orders applicable to the items and services provided under these rules. Without limiting the generality of the foregoing, the provider expressly agrees to comply and require all subcontractors to comply with the following laws, regulations and executive orders to the extent they are applicable to the items and services provided under these rules:

(i) Title VI and VII of the Civil Rights Act of 1964, as amended;

(ii) Sections 503 and 504 of the Rehabilitation Act of 1973, as amended;

(iii) The Americans with Disabilities Act of 1990, as amended;

(iv) Executive Order 11246, as amended;

(v) The Health Insurance Portability and Accountability Act of 1996;

(vi) The Age Discrimination in Employment Act of 1967, as amended, and the Age Discrimination Act of 1975, as amended;

(vii) The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, (viii) all regulations and administrative rules established pursuant to the foregoing laws;

(viii) All other applicable requirements of federal civil rights and rehabilitation statutes, rules, and regulations;

(ix) All federal law governing operation of community mental health programs, including without limitation, all federal laws requiring reporting of client abuse. These laws, regulations and executive orders are incorporated by reference herein to the extent that they are applicable to the items and services governed by these rules and required by law to be so incorporated. No federal funds may be used to provide services in violation of 42 USC 14402.

(B) Any provider that receives or makes annual payments under Medicaid of at least $5,000,000, as a condition of receiving such payments, shall:

(i) Establish written policies for all employees of the entity (including management), and of any contractor, subcontractor, or agent of the entity, that provide detailed information about the False Claims Act established under 31 USC 3729 through 3733, administrative remedies for false claims and statements established under 31 USC 38, any Oregon state laws pertaining to civil or criminal penalties for false claims and statements, and whistle blowing protections under such laws, with respect to the role of such laws in preventing and detecting fraud, waste, and abuse in Federal health care programs (as defined in 42 USC 1320a-7b(f));

(ii) Include as part of written policies, detailed provisions regarding the entity’s policies and procedures for detecting and preventing fraud, waste, and abuse; and

(iii) Include in any employee handbook for the entity, a specific discussion of the laws described in sub-paragraph (i), the rights of the employees to be protected as whistleblowers.

(C) If the items and services governed under these rules exceed $10,000, the provider must comply and require all subcontractors to comply with Executive Order 11246, entitled “Equal Employment Opportunity,” as amended by Executive Order 11375, and as supplemented in U.S Department of Labor regulations (41 CFR part 60);

(D) If the items and services governed under these rules exceed $100,000, and are paid in any part with federal funds, the provider must comply and require all subcontractors to comply with all applicable standards, orders, or requirements issued under Section 306 of the Clean Air Act (42 U.S.C. 7606), the Federal Water Pollution Control Act as amended (commonly known as the Clean Water Act—33 U.S.C. 1251 to 1387), specifically including, but not limited to, Section 508 (33 U.S.C. 1368). Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 32), which prohibit the use under non-exempt Federal contracts, grants or loans of facilities included on the EPA List of Violating Facilities. Violations must be reported to the Department, DHHS, and the appropriate Regional Office of the Environmental Protection Agency. The provider must include and require all subcontractors to include in all contracts with subcontractors receiving more than $100,000, language requiring the subcontractor to comply with the federal laws identified in this section;

(E) The provider must comply and require all subcontractors to comply with applicable mandatory standards and policies relating to energy efficiency that are contained in the Oregon energy conservation plan issued in compliance with the Energy Policy and Conservation Act, 42 U.S.C. 6201 et seq. (Pub. L. 94-163);

(F) The provider must provide written certification indicating that:

(i) No federal appropriated funds have been paid or shall be paid, by or on behalf of the provider, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment or modification of any federal contract, grant, loan or cooperative agreement;

(ii) If any funds other than federal appropriated funds have been paid or shall be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal contract, grant, loan or cooperative agreement, the provider must complete and submit Standard Form LLL, “Disclosure Form to Report Lobbying” in accordance with its instructions;

(iii) The provider must require that the language of this certification be included in the award documents for all sub-awards at all tiers (including subcontracts, sub-grants, and contracts under grants, loans, and cooperative agreements) and that all sub-recipients and subcontractors must certify and disclose accordingly;

(iv) This certification is a material representation of fact upon which reliance was placed when this provider agreement was made or entered into. Submission of this certification is a prerequisite for making or entering into this provider agreement imposed by 31 USC 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

(G) If the items and services funded in whole or in part with financial assistance provided under these rules are covered by HIPAA or the federal regulations implementing HIPAA, the provider agrees to deliver the goods and services in compliance with HIPAA. The provider must comply and require all subcontractors to comply with the following:

(i) Individually identifiable health information about specific individuals is confidential. Individually identifiable health information relating to specific individuals may be exchanged between the provider and the Department for purposes directly related to the provision to clients of services that are funded in whole or in part under these rules. The provider must not use or disclose any individually identifiable health information about specific individuals in a manner that would violate Department privacy rules, (OAR 410-014-0000 et. seq.), or the Department’s Notice of Privacy Practices, if done by the Department;

(ii) Providers who engage in EDI transactions with the Department in connection with claims or encounter data, eligibility or enrollment information, authorizations or other electronic transactions must execute an EDI trading partner agreement with the Department and must comply with the Department’s electronic data transmission rules (OAR 407-120-0100 to 407-120-0200);

(iii) If a provider reasonably believes that the provider’s or the Department’s data transactions system or other application of HIPAA privacy or security compliance policy may result in a violation of HIPAA requirements, the provider must promptly consult the Department’s privacy officer. The provider or the Department may initiate a request to test HIPAA transactions, subject to available resources and the Department’s testing schedule.

(H) The provider must comply and require all subcontractors to comply with all mandatory standards and policies that relate to resource conservation and recovery pursuant to the Resource Conservation and Recovery Act (codified at 42 USC 6901 et. seq.). Section 6002 of that Act (codified at 42 USC 6962) requires that preference be given in procurement programs to the purchase of specific products containing recycled materials identified in guidelines developed by the Environmental Protection Agency. Current guidelines are set forth in 40 CFR Parts 247;

(I) The provider must comply and require all subcontractors to comply with the applicable audit requirements and responsibilities set forth in the Office of Management and Budget Circular A-133 entitled “Audits of States, Local Governments and Non-Profit Organizations;”

(J) The provider must not permit any person or entity to be a subcontractor if the person or entity is listed on the non-procurement portion of the General Service Administration’s “List of Parties Excluded from Federal Procurement or Nonprocurement Programs” in accordance with Executive Orders No. 12,549 and No. 12,689, “Debarment and Suspension”. (See 45 CFR part 76). This list contains the names of parties debarred, suspended, or otherwise excluded by agencies, and providers and subcontractors declared ineligible under statutory authority other than Executive Order No. 12549. Subcontractors with awards that exceed the simplified acquisition threshold must provide the required certification regarding their exclusion status and that of their principals prior to award;

(K) The provider must comply and require all subcontractors to comply with the following provisions to maintain a drug-free workplace:

(i) Certify that it shall provide a drug-free workplace by publishing a statement notifying its employees that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance, except as may be present in lawfully prescribed or over-the-counter medications, is prohibited in the provider's workplace or while providing services to Department clients. The provider's notice must specify the actions that shall be taken by the provider against its employees for violation of such prohibitions;

(ii) Establish a drug-free awareness program to inform its employees about the dangers of drug abuse in the workplace, the provider's policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation, and employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations;

(iii) Provide each employee to be engaged in the performance of services under these rules a copy of the statement required in paragraph (J)(i) above;

(iv) Notify each employee in the statement required by paragraph (J)(i) that, as a condition of employment to provide services under these rules, the employee shall abide by the terms of the statement and notify the employer of any criminal drug statute conviction for a violation occurring in the workplace no later than five days after such conviction;

(v) Notify the Department within ten days after receiving notice under subparagraph (J)(iv) from an employee or otherwise receiving actual notice of such conviction;

(vi) Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program by any employee who is convicted as required by Section 5154 of the Drug-Free Workplace Act of 1988;

(vii) Make a good-faith effort to continue a drug-free workplace through implementation of subparagraphs (J)(i) through (J)(vi);

(viii) Require any subcontractor to comply with subparagraphs (J)(i) through (J)(vii);

(ix) The provider, the provider's employees, officers, agents, or subcontractors shall not provide any service required under these rules while under the influence of drugs. For purposes of this provision, "under the influence" means observed abnormal behavior or impairments in mental or physical performance leading a reasonable person to believe the provider or provider's employee, officer, agent, or subcontractor has used a controlled substance, prescription, or non-prescription medication that impairs the provider or provider's employee, officer, agent, or subcontractor's performance of essential job function or creates a direct threat to Department clients or others. Examples of abnormal behavior include but are not limited to hallucinations, paranoia or violent outbursts. Examples of impairments in physical or mental performance include but are not limited to slurred speech, difficulty walking or performing job activities;

(x) Violation of any provision of this subsection may result in termination of the provider agreement.

(L) The provider must comply and require all sub-contractors to comply with the Pro-Children Act of 1994 (codified at 20 USC section 6081 et. seq.);

(M) A provider reimbursed or seeking reimbursement with Medicaid funds must comply with all applicable federal and state laws and regulations pertaining to the provision of Medicaid services under the Medicaid Act, Title XIX, 42 USC Section 1396 et. seq., including without limitation:

(i) Maintain necessary records to fully disclose the extent of the services provided to individuals receiving Medicaid assistance and must furnish the information to any state or federal agency responsible for administering the Medicaid program regarding any payments claimed by the provider or institution for providing Medicaid services as the state or federal agency may from time to time request. 42 USC Section 1396a(a)(27); 42 CFR 431.107(b)(1) & (2);

(ii) Comply with all disclosure requirements of 42 CFR 1002.3(a) and 42 CFR 455 Subpart (B);

(iii) Maintain written notices and procedures respecting advance directives in compliance with 42 USC Section 1396(a)(57) and (w), 42 CFR 431.107(b)(4), and 42 CFR 489 subpart I;

(iv) Certify when submitting any claim for the provision of Medicaid services that the information submitted is true, accurate and complete. The provider must acknowledge provider’s understanding that payment of the claim shall be from federal and state funds and that any falsification or concealment of a material fact may be prosecuted under federal and state laws.

(N) Providers must comply with the obligations intended for contractors under ORS 279B.220, 279B.225, 279B.230 and 279B.235 (if applicable), Providers shall, to the maximum extent economically feasible in the performance of covered services, use recycled paper (as defined in ORS 279A.010(1)(ee)), recycled PETE products (as defined in ORS 279A.010(1)(ff)), and other recycled plastic resin products and recycled products (as “recycled product” is defined in ORS 279A.010(1)(gg)).

(O) Providers must comply with all federal, state and local tax laws, including Social Security payment requirements, applicable to payments made by the Department to the provider.

(2) Hospitals, nursing facilities, home health agencies (including those providing personal care), hospices, and health maintenance organizations shall comply with the Patient Self-Determination Act as set forth in Section 4751 of OBRA 1991. To comply with the obligation under the above listed laws to deliver information on the rights of the individual under Oregon law to make health care decisions, the named providers and organizations must provide capable individuals over the age of 18 a copy of "Your Right to Make Health Care Decisions in Oregon," copyright 1993, by the Oregon State Bar Health Law Section. Out-of-state providers of these services must comply with Medicare and Medicaid regulations in their state. Submittal to the Department of the appropriate billing form requesting payment for medical services provided to a Medicaid eligible client shall be deemed representation to the Department of the medical provider's compliance with the above-listed laws.

(3) Providers described in ORS chapter 419B are required to report suspected child abuse to their local Children, Adults and Families Division office or police, in the manner described in ORS chapter 419.

(4) The Clinical Laboratory Improvement Act (CLIA), requires all entities that perform even one laboratory test, including waived tests, on "materials derived from the human body for the purpose of providing information for the diagnosis, prevention or treatment of any disease or impairment of, or the assessment of the health of, human beings" to meet certain federal requirements. If an entity performs tests for these purposes, it is considered, under CLIA, to be a laboratory.

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

History

Statutory/Other Authority: ORS 409.050 & 411.060
Statutes/Other Implemented: ORS 414.115, 414.125, 414.135 & 414.145
DHSD 11-2008, f. 12-26-08, cert. ef. 12-27-08
DHSD 6-2008(Temp), f. & cert. ef. 7-1-08 thru 12-27-08

Or. Admin. R. 407-120-0330 Billing Procedures

(1) These rules only apply to covered services and items provided to clients that are paid for by the Department based on a Department fee schedule or other reimbursement method (often referred to as fee-for-service), or for services that are paid for by the Department at the request of a county for county-authorized services, in accordance with program-specific rules or contract.

(a) If a client's service or item is paid for by a PHP, the provider must comply with the billing and procedures related to claim submission established under contract with that PHP, or the rules applicable to non-participating providers if the provider is not under contract with that PHP.

(b) If the client is enrolled in a PHP, but the client is permitted by a contract or program-specific rules to obtain covered services reimbursed by the Department (such as family planning services that may be obtained from any provider), the provider must comply with the billing and claim procedures established under these rules.

(2) All Department-assigned provider numbers are issued at enrollment and are directly associated with the provider as defined in OAR 407-120-0320(12) and have the following uses:

(a) Log-on identification for the Department web portal;

(b) Claim submission in the approved paper formats; and

(c) For electronic claims submission including the web portal for atypical providers pursuant to 45 CFR 160 and 162 where an NPI is not mandated. Use of the Department-assigned provider number shall be considered authorized by the provider and the Department shall hold the provider accountable for its use.

(3) Except as provided in section (4) below, an enrolled provider may not seek payment for any covered services from:

(a) A client for covered benefits; or

(b) A financially responsible relative or representative of that client.

(4) Providers may seek payment from an eligible client or client representative as follows:

(a) From any applicable coinsurance, co-payments, deductibles, or other client financial obligation to the extent and as expressly authorized by program-specific rules or contract;

(b) From a client who failed to inform the provider of Department program eligibility, of OHP or PHP enrollment, or of other third party insurance coverage at the time the service was provided or subsequent to the provision of the service or item. In this case, the provider could not bill the Department, the PHP, or third party payer for any reason, including but not limited to timeliness of claims and lack of prior authorization. The provider must document attempts to obtain information on eligibility or enrollment;

(c) The client became eligible for Department benefits retroactively but did not meet other established criteria described in the applicable program-specific rules or contracts.

(d) The provider can document that a TPR made payments directly to the client for services provided that are subject to recovery by the provider in accordance with program-specific rules or contract;

(e) The service or item is not covered under the client's benefit package. The provider must document that prior to the delivery of services or items, the provider informed the client the service or item would not be covered by the Department;

(f) The client requested continuation of benefits during the administrative hearing process and the final decision was not in favor of the client. The client shall be responsible for any charges since the effective date of the initial notice of denial; or

(g) In exceptional circumstances, a client may request continuation of a covered service while asserting the right to privately pay for that service. Under this circumstance, a provider may bill the client for a covered service only if the client is informed in advance of receiving the specific service of all of the following:

(A) The requested service is a covered service and the provider would be paid in full for the covered service if the claim is submitted to the Department or the client's PHP;

(B) The estimated cost of the covered service, including all related charges, that the Department or PHP would pay, and for which the client is billed cannot be an amount greater than the maximum Department or PHP reimbursable rate or PHP rate;

(C) The provider cannot require the client to enter into a voluntary payment agreement for any amount for the covered service; and

(D) The provider must be able to document, in writing, signed by the client or the client's representative, that the client was provided the information described above; was provided an opportunity to ask questions, obtain additional information, and consult with the client's caseworker or client representative; and the client agreed to be responsible for payment by signing an agreement incorporating all of the information described above. The provider must provide a copy of the signed agreement to the client. The provider must not submit a claim for payment for the service or item to the Department or to the client's PHP that is subject to such an agreement.

(5) Reimbursement for Non-Covered Services.

(a) A provider may bill a client for services that are not covered by the Department or a PHP, except as provided in these rules. The client must be informed in advance of receiving the specific service that it is not covered, the estimated cost of the service, and that the client or client's representative is financially responsible for payment for the specific service. Providers must provide written documentation, signed by the client, or the client's representative, dated prior to the delivery of services or item indicating that the client was provided this information and that the client knowingly and voluntarily agreed to be responsible for payment.

(b) Providers must not bill or accept payment from the Department or a PHP for a covered service when a non-covered service has been provided and additional payment is sought or accepted from the client. Examples include but are not limited to charging the client an additional payment to obtain a gold crown (not covered) instead of the stainless steel crown (covered) or charging an additional client payment to obtain eyeglass frames not on the covered list of frames. This practice is called buying-up, which is not permitted, and a provider may be sanctioned for this practice regardless of whether a client waiver is documented.

(d) Providers must not bill clients or the Department for services or items provided free of charge. This limitation does not apply to established sliding fee schedules where the client is subject to the same standards as other members of the public or clients of the provider.

(e) Providers must not bill clients for services or items that have been denied due to provider error such as required documentation not submitted or prior authorization not obtained.

(6) Providers must verify that the individual receiving covered services is, in fact, an eligible client on the date of service for the service provided and that the services is covered in the client's benefit package.

(a) Providers are responsible for costs incurred for failing to confirm eligibility or that services are covered.

(b) Providers must confirm the Department's client eligibility and benefit package coverage using the web portal, or the Department telephone eligibility system, and by other methods specified in program-specific or contract instructions.

History

Statutory/Other Authority: ORS 409.050 & 411.060
Statutes/Other Implemented: ORS 414.115, 414.125, 414.135 & 414.145
DHSD 11-2008, f. 12-26-08, cert. ef. 12-27-08
DHSD 6-2008(Temp), f. & cert. ef. 7-1-08 thru 12-27-08
DHSD 15-2007, f. 12-31-07, cert. ef. 1-1-08

Or. Admin. R. 407-120-0340 Claim and PHP Encounter Submission

(1) Claim and PHP Encounter Submission. All claims must be submitted using one of the following methods:

(a) Paper forms, using the appropriate form as described in the program-specific rules or contract;

(b) Electronically using the web portal accessed by provider-specific PIN and password. Initial activation by provider of Department-assigned provider number and PIN for web portal access invokes provider's agreement to meet all of the standards for HIPAA privacy, security, and transactions and codes sets standards as defined in 45 CFR 162;

(d) Electronically, for PHP encounters, in the manner required by the PHP contract with the Department and authorized by the Department's EDT rules.

(2) Claims must not be submitted prior to delivery of service unless otherwise authorized by program-specific rules or contracts. A claim for an item must not be submitted prior to dispensing, shipping, or mailing the item unless otherwise specified in the Department's program-specific rules or contracts.

(3) Claims and PHP encounters must be submitted in compliance HIPAA transaction and code set rules. The HIPAA transaction and code set rules, 45 CFR 162, apply to all electronic transactions for which DHHS has adopted a standard.

(a) The Department may deny or reject electronic transactions that fail to comply with the federal standard.

(b) The Department is required to comply with the HIPAA code set requirements in 45 CFR 162.1000 through 162.1011, regardless of whether a request is made verbally, or a claim is submitted on paper or electronically, and with regard to the electronic claims and encounter remittance advice information, including the web portal. Compliance with the code set requirements includes the codes and the descriptors of the codes established by the official entity that maintains the code set. These federal code set requirements are mandatory and the Department has no authority to delay or alter their application or effective dates as established by DHHS.

(A) The issuance of a federal code does not mean that the Department covers the item or service described by the federal code. In the event of a variation between a Department-listed code and a national code, the provider should seek clarification from the Department program. The Department shall apply the national code in effect on the date of request or date of service and the Department-listed code may be used for the limited purpose of describing the Department's intent in identifying whether the applicable national code represents a Department covered service or item.

(B) For purposes of maintaining HIPAA code set compliance, the Department adopts by reference the required use of the version of all national code set revisions, deletions, and additions in accordance with the HIPAA transaction and code set rules in effect on the date of this rule. This code set adoption may not be construed as Department coverage or that the existence of a particular national code constitutes a determination by the Department that the particular code is a covered service or item. If the provider is unable to identify an appropriate procedure code to use on the claim or PHP encounter, the provider should contact the Department for assistance in identifying an appropriate procedure code reference in but not limited to the following:

(i) Current Procedural Terminology, Fourth Edition (CPT-4), (American Medical Association);

(ii) Current Dental Terminology (CDT), (American Dental Association);

(iii) Diagnosis Related Group (DRG), (DHHS);

(iv) Health Care Financing Administration Common Procedural Coding System (HCPCS), (DHHS);

(v) National Drug Codes (NDC), (DHHS); or

(vi) HIPAA related codes, DHHS, claims adjustment reason, claim status, taxonomy codes, and decision reason available at the Washington Publishing Company web site: http://www.wpc.edi.com/content/view/180/223.

(C) For electronic claims and PHP encounters, the appropriate HIPAA claim adjustment reason code for third party payer, including Medicare, explanation of payment must be used.

(A) For claims and PHP encounters that require the listing of a diagnosis code as the basis for the service provided, the code listed on the claim must be the code that most accurately describes the client's condition and the service or item provided.

(B) A primary diagnosis code is required on all claims, using the HIPAA nationally required diagnosis code set including the code and the descriptor of the code by the official entity that maintains the code set, unless the requirement for a primary diagnosis code is specifically excluded in the Department's program-specific rules or contract. All diagnosis codes are required to the highest degree of specificity. Providers must use the ICD-9-CM diagnosis coding system when a diagnosis is required unless otherwise specified in the appropriate program-specific rules or contract.

(C) Hospitals must follow national coding guidelines and must bill using the 5th digit, in accordance with methodology used in the Medicare Diagnosis Related Groups.

(d) Providers are required to provide and identify the following procedures codes.

(A) The appropriate procedure code on claims and PHP encounters as instructed in the appropriate Department program-specific rules or contract and must use the appropriate HIPAA procedure code set, set forth in 45 CFR 162.1000 through 162.1011, which best describes the specific service or item provided.

(B) Where there is one CPT, CDT, or HCPCS code that according to those coding guidelines or standards, describes an array of services, the provider must use that code rather than itemizing the services under multiple codes. Providers must not "unbundle" services in order to increase payment or to mischaracterize the service.

(4) Prohibition of False Claims. No provider or its contracted agent (including billing service or billing agent) shall submit or cause to be submitted to the Department:

(a) Any false claim for payment or false PHP encounter;

(b) Any claim or PHP encounter altered in such a way as to result in a duplicate payment for a service that has already been paid;

(c) Any claim or PHP encounter upon which payment has been made or is expected to be made by another source unless the amount paid or to be paid by the other party is clearly entered on the claim form or PHP encounter format; or

(d) Any claim or PHP encounter for providing services or items that have not been provided.

(5) Third Party Resources.

(a) A provider shall not refuse to furnish covered services or items to an eligible client because of a third party's potential liability for the service or item.

(b) Providers must take all reasonable measures to ensure that the Department shall be the payer of last resort, consistent with program-specific rules or contracts. If available, private insurance, Medicare, or worker's compensation must be billed before the provider submits a claim for payment to the Department, county, or PHP. For services provided to a Medicare and Medicaid dual eligible client, Medicare is the primary payer and the provider must first pursue Medicare payment (including appeals) prior to submitting a claim for payment to the Department, county, or PHP. For services not covered by Medicare or other third party resource, the provider must follow the program-specific rules or contracts for appropriate billing procedures.

(c) When another party may be liable for paying the expenses of a client's injury or illness, the provider must follow program-specific rules or contract addressing billing procedures.

(6) Full Use of Alternate Community Resources.

(a) The Department shall generally make payment only when other resources are not available for the client's needs. Full use must be made of reasonable alternate resources in the local community; and

(b) Providers must not accept reimbursement from more than one resource for the same service or item, except as allowed in program-specific or contract TPR requirements.

(7) Timely Submission of Claim or Encounter Data.

(a) Subsection (a) through (c) below apply only to the submission of claims data or other reimbursement document to the Department, including provider reimbursement by the Department pursuant to an agreement with a county. Unless requirements for timely filing provided for in program-specific rules or applicable contracts are more specific than the timely filing standard established in this rule, all claims for services or items must be submitted no later than 12 months from the date of service.

(b) A denied claim submitted within 12 months of the date of service may be resubmitted (with resubmission documentation, as indicated within the program-specific rules or contracts) within 18 months of the date of service. These claims must be submitted to the Department in writing. The provider must present documentation acceptable to the Department verifying the claim was originally submitted within 12 months of the date of service, unless otherwise stated in program-specific rules or contracts. Acceptable documentation is:

(A) A remittance advice or other claim denial documentation from the Department to the provider showing the claim was submitted before the claim was one year old; or

(B) A copy of a billing record or ledger showing dates of submission to the Department.

(A) When the Department confirms the Department or the client's branch office has made an error that caused the provider not to be able to bill within 12 months of the date of service;

(B) When a court or an administrative law judge in a final order has ordered the Department to make payment;

(C) When the Department determines a client is retroactively eligible for Department program coverage and more than 12 months have passed between the date of service and the determination of the client's eligibility, to the extent authorized in the program-specific rules or contracts.

(d) PHP encounter data must be submitted in accordance with 45 CFR part 162.1001 and 162.1102 and the time periods established in the PHP contract with the Department.

History

Statutory/Other Authority: ORS 409.050 & 411.060
Statutes/Other Implemented: ORS 414.115, 414.125, 414.135 & 414.145
DHSD 11-2008, f. 12-26-08, cert. ef. 12-27-08
DHSD 6-2008(Temp), f. & cert. ef. 7-1-08 thru 12-27-08
DHSD 15-2007, f. 12-31-07, cert. ef. 1-1-08

Or. Admin. R. 407-120-0350 Payments and Overpayments

(1) Authorization of Payment.

(a) Some services or items covered by the Department require authorization before a service, item, or level of care can be provided or before payment shall be made. Providers must check the appropriate program-specific rules or contracts for information on services or items requiring prior authorization and the process to follow to obtain authorization.

(b) Documentation submitted when requesting authorization must support the program-specific or contract justification for the service, item, or level of care. A request is considered complete if it contains all necessary documentation and meets any other requirements as described in the appropriate program-specific rules or contract.

(c) The authorizing program shall authorize the covered level of care, type of service, or item that meets the client's program-eligible need. The authorizing program shall only authorize services which meet the program-specific or contract coverage criteria and for which the required documentation has been submitted. The authorizing program may request additional information from the provider to determine the appropriateness of authorizing the service, item, or level of care within the scope of program coverage.

(d) Authorizing programs shall not authorize services or make payment for authorized services under the following circumstances:

(A) The client was not eligible at the time services were provided. The provider must check the client's eligibility each time services are provided;

(B) The provider cannot produce appropriate documentation to support that the level of care, type of service, or item meets the program-specific or contract criteria, or the appropriate documentation was not submitted to the authorizing program;

(C) The delivery of the service, item, or level of care has not been adequately documented as described in OAR 407-120-0370. Requirements for financial, clinical and other records, and the documentation in the provider's files is not adequate to determine the type, medical appropriateness, or quantity of services, or items provided or the required documentation is not in the provider's files;

(D) The services or items identified in the claim are not consistent with the information submitted when authorization was requested or the services or items provided are retrospectively determined not to be authorized under the program-specific or contract criteria;

(E) The services or items identified in the claim are not consistent with those which were provided;

(F) The services or items were not provided within the timeframe specified on the authorization of services document; or

(G) The services or items were not authorized or provided in compliance with the program-specific rules or contracts.

(e) Payment made for services or items described in subsections (d)(A) through (G) of this rule shall be recovered.

(f) Retroactive Department Client Eligibility.

(A) When a client is determined to be retroactively eligible for a Department program, or is retroactively disenrolled from a PHP or services provided after the client was disenrolled from a PHP, authorization for payment may be given if the following conditions are met:

(i) The client was eligible on the date of service and the program-specific rules or contract authorize the Department to reimburse the provider for services provided to clients made retroactively eligible;

(ii) The services or items provided to the client meet all other program-specific or contract criteria and Oregon Administrative Rules;

(iii) The request for authorization is received by the appropriate Department branch or program office within 90 days of the date of service; and

(iv) The provider is enrolled with the Department on the date of service, or becomes enrolled with the Department no later than the date of service as provided in OAR 407-120-0320(11).

(B) Requests for authorization received after 90 days from date of service require all the documentation required in subsection (f)(A)(i), (ii) and (iv) and documentation from the provider stating why the authorization could not have been obtained within 90 days of the date of service.

(g) Service authorization is valid for the time period specified on the authorization notice, but shall not exceed 12 months, unless the client's benefit package no longer covers the service, in which case the authorization terminates on the date coverage ended.

(h) Service authorization for clients with other insurance or for Medicare beneficiaries is governed by program-specific rules or contracts.

(2) Payments.

(a) This rule only applies to covered services and items provided to eligible clients within the program-specific or contract covered services or items in effect on the date of service that are paid for by the Department based on program-specific or contract fee schedules or other reimbursement methods, or for services that are paid for by the Department at the request of a county for county-authorized services in accordance with program-specific or provider-specific rules or contracts.

(b) If the client's service or item is paid for by a PHP, the provider must comply with the payment requirements established under contract with that PHP, and in accordance with OAR 410-120 and 410-141, applicable to non-participating providers.

(c) The Department shall pay for services or items based on the reimbursement rates and methods specified in the applicable program-specific rules or contract. Provider reimbursement on behalf of a county must include county service authorization information.

(d) Providers must accept, as payment in full, the amounts paid by the Department in accordance with the fee schedule or reimbursement method specified in the program-specific rules or contract, plus any deductible, co-payment, or coinsurance required to be paid by the client. Payment in full includes:

(A) Zero payments for claims where a third party or other resource has paid an amount equivalent to or exceeding the Department's allowable payment; or

(B) Denials of payment for failure to submit a claim in a timely manner, failure to obtain payment authorization in a timely and appropriate manner, or failure to follow other required procedures identified in the program-specific rules or contracts.

(e) The Department shall not make payments for duplicate services or items. The Department shall not make a separate payment or co-payment to a provider for services included in the provider's all-inclusive rate if the provider has been or shall be reimbursed by other resources for the service or item.

(f) Prepayment and Post-Payment Review. Payment by the Department does not limit the Department or any state or federal oversight entity from reviewing or auditing a claim before or after the payment. Payment may be denied or subject to recovery if medical, clinical, program-specific or contract review, audit, or other post-payment review determines the service or item was not provided in accordance with applicable rules or contracts or does not meet the program-specific or contract criteria for quality of care, or appropriateness of the care, or authorized basis for payment.

(3) Recovery of Overpayments to Providers — Recoupments and Refunds

(a) The Department may deny payment or may deem payments subject to recovery as an overpayment if a review or audit determines the item or service was not provided in accordance with the Department's rules, terms of contract, or does not meet the criteria for quality of care, or appropriateness of the care or payment. Related provider billings shall also be denied or subject to recovery.

(b) If a provider determines that a submitted claim or encounter is incorrect, the provider must submit an individual adjustment request and refund the amount of the overpayment, if any, or adjust the claim or encounter, consistent with the requirements in program-specific rules or contracts.

(c) The Department may determine, as a result of review or other information, that a payment should be denied or that an overpayment has been made to a provider, which indicates that a provider may have submitted claims or encounters, or received payment to which the provider is not properly entitled. Such payment denial or overpayment determinations may be based on but not limited to the following:

(A) The Department paid the provider an amount in excess of the amount authorized under a contract, state plan or Department rule;

(B) A third party paid the provider for services, or portion thereof, previously paid by the Department;

(D) The Department paid for claims submitted by a data processing agent for whom a written provider or billing agent or billing service agreement was not on file at the time of submission;

(E) The Department paid for services and later determined they were not part of the client's program-specific or contract-covered services;

(F) Coding, data processing submission, or data entry errors;

(G) Medical, dental, or professional review determines the service or item was not provided in accordance with the Department's rules or contract or does not meet the program-specific or contract criteria for coverage, quality of care, or appropriateness of the care or payment;

(H) The Department paid the provider for services, items, or drugs when the provider did not comply with the Department's rules and requirements for reimbursement; or

(I) The provider submitted inaccurate, incomplete or false encounter data to the Department.

(d) Prior to identifying an overpayment, the Department may contact the provider requesting preliminary information and additional documentation. The provider must provide the requested documentation within the specified time frame.

(e) When an overpayment is identified, the Department shall notify the provider in writing as to the nature of the discrepancy, the method of computing the overpayment, and any further action that the Department may take on the matter. The notice may require the provider to submit applicable documentation for review prior to requesting an appeal from the Department, and may impose reasonable time limits for when documentation must be provided for Department consideration. The notice shall inform the provider of the process for appealing the overpayment determination.

(f) The Department may recover overpayments made to a provider by direct reimbursement, offset, civil action, or other legal action:

(A) The provider must make a direct reimbursement to the Department within 30 calendar days from the date of the notice of the overpayment, unless other regulations apply.

(B) The Department may grant the provider an additional period of time to reimburse the Department upon written request made within 30 calendar days from the date of the notice of overpayment. The provider must include a statement of the facts and reasons sufficient to show that repayment of the overpayment amount should be delayed pending appeal because:

(i) The provider shall suffer irreparable injury if the overpayment notice is not delayed;

(ii) There is a reason to believe that the overpayment is incorrect or is less than the amount in the notice, and the provider has timely filed an appeal of the overpayment, or that the provider accepts the amount of the overpayment but is requesting to make repayment over a period of time;

(iii) A proposed method for assuring that the amount of the overpayment can be repaid when due with interest including but not limited to a bond, irrevocable letter of credit, or other undertaking, or a repayment plan for making payments, including interest, over a period of time;

(iv) Granting the delay shall not result in substantial public harm; and

(v) Affidavits containing evidence relied upon in support of the request for stay.

(C) The Department may consider all information in the record of the overpayment determination, including provider cooperation with timely provision of documentation, in addition to the information supplied in provider's request. If provider requests a repayment plan, the Department may require conditions acceptable to the Department before agreeing to a repayment plan. The Department must issue an order granting or denying a repayment delay request within 30 calendar days after receiving it;

(D) A request for hearing or administrative review does not change the date the repayment of the overpayment is due; and

(E) The Department may withhold payment on pending claims and on subsequently received claims for the amount of the overpayment when overpayments are not paid as a result of subsection (B)(i);

(f) In addition to any overpayment, the Department may impose a sanction on the provider in connection with the actions that resulted in the overpayment. The Department may, at its discretion, combine a notice of sanction with a notice of overpayment.

(g) Voluntary submission of an adjustment claim or encounter transaction or an individual adjustment request or overpayment amount after notice from the Department does not prevent the Department from issuing a notice of sanction The Department may take such voluntary payment into account in determining the sanction.

History

Statutory/Other Authority: ORS 409.050 & 411.060
Statutes/Other Implemented: ORS 414.115, 414.125, 414.135 & 414.145
DHSD 11-2008, f. 12-26-08, cert. ef. 12-27-08
DHSD 6-2008(Temp), f. & cert. ef. 7-1-08 thru 12-27-08
DHSD 15-2007, f. 12-31-07, cert. ef. 1-1-08

Or. Admin. R. 407-120-0360 Consequences of Non-Compliance and Provider Sanctions

(1) There are two classes of provider sanctions, mandatory and discretionary, that may be imposed for non-compliance with the provider enrollment agreement.

(2) Except as otherwise provided, the Department shall impose provider sanctions at the direction of the assistant director of the Department's division whose budget includes payment for the services involved.

(3) Mandatory Sanctions. The Department shall impose mandatory sanctions and suspend the provider from participation in the Department's programs:

(a) When a provider has been convicted (as that term is defined in 42 CFR part 1001.2) of a felony or misdemeanor related to a crime, or violation of Title XVIII, XIX, or XX of the Social Security Act or related state laws, or other disqualifying criminal conviction pursuant to program-specific rules or contract;

(b) When a provider is excluded from participation in federal or state health care programs by the Office of the Inspector General of DHHS or from the Medicare (Title XVIII) program of the Social Security Act as determined by the Secretary of DHHS. The provider shall be excluded and suspended from participation with the Department for the duration of exclusion or suspension from the Medicare program or by the Office of the Inspector General; or

(c) If the provider fails to disclose ownership or control information required under 42 CFR part 455.104 that is required to be reported at the time the provider submits a provider enrollment form or when there is a material change in the information that must be reported, or information related to business transactions required to be provided under 42 CFR part 455.105 upon request of federal or state authorities.

(4) Discretionary Sanctions. When the Department determines the provider fails to meet one or more of the Department's requirements governing participation in its programs the Department may impose discretionary sanctions. Conditions that may result in a discretionary sanction include, but are not limited to when a provider has:

(a) Been convicted of fraud related to any federal, state, or locally financed health care program or committed fraud, received kickbacks, or committed other acts that are subject to criminal or civil penalties under the Medicare or Medicaid statutes;

(b) Been convicted of interfering with the investigation of health care fraud;

(c) Been convicted of unlawfully manufacturing, distributing, prescribing, or dispensing a controlled substance or other potentially disqualifying crime, as determined under program-specific rules or contracts;

(d) By actions of any state licensing authority for reasons relating to the provider's professional competence, professional conduct, or financial integrity either:

(A) Had his or her professional license suspended or revoked, or otherwise lost such license; or

(B) Surrendered his or her license while a formal disciplinary proceeding is pending before the relevant licensing authority.

(e) Been suspended or excluded from participation in any federal or state program for reasons related to professional competence, professional performance, or other reason;

(f) Billed excessive charges including but not limited to charging in excess of the usual charge, furnished items or services in excess of the client's needs or in excess of those services ordered by a provider, or in excess of generally accepted standards or quality that fail to meet professionally recognized standards;

(g) Failed to furnish necessary covered services as required by law or contract with the Department if the failure has adversely affected or has a substantial likelihood of adversely affecting the client;

(h) Failed to disclose required ownership information;

(i) Failed to supply requested information on subcontractors and suppliers of goods or services;

(j) Failed to supply requested payment information;

(k) Failed to grant access or to furnish as requested, records, or grant access to facilities upon request of the Department or the MFCU conducting their regulatory or statutory functions;

(l) In the case of a hospital, failed to take corrective action as required by the Department, based on information supplied by the QIO to prevent or correct inappropriate admissions or practice patterns, within the time specified by the Department;

(m) In the case of a licensed facility, failed to take corrective action under the license as required by the Department within the time specified by the Department;

(n) Defaulted on repayment of federal or state government scholarship obligations or loans in connection with the provider's health profession education;

(A) Providers must have made a reasonable effort to secure payment;

(B) The Department must take into account access of beneficiaries to services; and

(o) Repeatedly submitted a claim with required data missing or incorrect:

(A) When the missing or incorrect data has allowed the provider to:

(i) Obtain greater payment than is appropriate;

(ii) Circumvent prior authorization requirements;

(iii) Charge more than the provider's usual charge to the general public;

(iv) Receive payments for services provided to individuals who were not eligible; or

(v) Establish multiple claims using procedure codes that overstate or misrepresent the level, amount, or type of services or items provided.

(B) Does not comply with the requirements of OAR 410-120-1280.

(p) Failed to develop, maintain, and retain, in accordance with relevant rules and standards, adequate clinical or other records that document the client's eligibility and coverage, authorization (if required by program-specific rules or contracts), appropriateness, nature, and extent of the services or items provided;

(q) Failed to develop, maintain, and retain in accordance with relevant rules and standards, adequate financial records that document charges incurred by a client and payments received from any source;

(r) Failed to develop, maintain, and retain adequate financial or other records that support information submitted on a cost report;

(s) Failed to follow generally accepted accounting principles or accounting standards or cost principles required by federal or state laws, rules, or regulations;

(t) Submitted claims or written orders contrary to generally accepted standards of professional practice;

(u) Submitted claims for services that exceed the requested or agreed upon amount by the OHP client, the client representative, or requested by another qualified provider;

(v) Breached the terms of the provider contract or agreement;

(w) Failed to comply with the terms of the provider certifications on the claim form;

(x) Rebated or accepted a fee or portion of a fee for a client referral; or collected a portion of a service fee from the client and billed the Department for the same service;

(y) Submitted false or fraudulent information when applying for a Department-assigned provider number, or failed to disclose information requested on the provider enrollment form;

(z) Failed to correct deficiencies in operations after receiving written notice of the deficiencies from the Department;

(aa) Submitted any claim for payment for which the Department has already made payment or any other source unless the amount of the payment from the other source is clearly identified;

(bb) Threatened, intimidated, or harassed clients, client representatives, or client relatives in an attempt to influence payment rates or affect the outcome of disputes between the provider and the Department;

(cc) Failed to properly account for a client's personal incidental funds including but not limited to using a client's personal incidental funds for payment of services which are included in a medical facility's all-inclusive rates;

(dd) Provided or billed for services provided by ineligible or unsupervised staff;

(ee) Participated in collusion that resulted in an inappropriate money flow between the parties involved;

(ff) Refused or failed to repay, in accordance with an accepted schedule, an overpayment established by the Department;

(gg) Failed to report to Department payments received from any other source after the Department has made payment for the service; or

(hh) Collected or made repeated attempts to collect payment from clients for services covered by the Department, under OAR 410-120-1280.

(5) A provider who has been excluded, suspended, or terminated from participation in a federal or state medical program, such as Medicare or Medicaid, or whose license to practice has been suspended or revoked by a state licensing board, must not submit claims for payment, either personally or through claims submitted by any billing agent or service, billing provider or other provider, for any services or supplies provided under the medical assistance programs, except those services or supplies provided prior to the date of exclusion, suspension or termination.

(6) Providers must not submit claims for payment to the Department for any services or supplies provided by an individual or provider entity that has been excluded, suspended, or terminated from participation in a federal or state medical program, such as Medicare or Medicaid, or whose license to practice has been suspended or revoked by a state licensing board, except for those services or supplies provided prior to the date of exclusion, suspension or termination.

(7) When the provisions of sections (5) or (6) are violated, the Department may suspend or terminate the billing provider or any provider who is responsible for the violation.

(8) Sanction Types and Conditions.

(a) A mandatory sanction imposed by the Department pursuant to section (3) may result in any of the following:

(A) The provider shall either be terminated or suspended from participation in the Department's programs. No payments of Title XIX, Title XXI or other federal or state funds shall be made for services provided after the date of termination. Termination is permanent unless:

(i) The exceptions cited in 42CFR part 1001.221 are met; or

(ii) Otherwise stated by the Department at the time of termination.

(B) No payments of Title XIX, Title XXI, or other federal or state funds shall be made for services provided during the suspension. The provider number shall be reactivated automatically after the suspension period has elapsed if the conditions that caused the suspension have been resolved. The minimum duration of a suspension shall be determined by the DHHS Secretary, under the provisions of 42 CFR parts 420, 455, 1001, or 1002. The Department may suspend a provider from participation in the medical assistance programs longer than the minimum suspension determined by the DHHS secretary.

(b) The Department may impose the following discretionary sanctions on a provider pursuant to OAR 410-120-1400(4):

(A) The provider may be terminated from participation in the Department's programs. No payments of Title XIX, Title XXI or other federal or state funds shall be made for services provided after the date of termination. Termination is permanent unless:

(i) The exceptions cited in 42 CFR part 1001.221 are met; or

(ii) Otherwise stated by the Department at the time of termination.

(B) The provider may be suspended from participation in the Department's programs for a specified length of time, or until specified conditions for reinstatement are met and approved by the Department. No payments of Title XIX, Title XXI, or other federal or state funds shall be made for services provided during the suspension. The provider number shall be reactivated automatically after the suspension period has elapsed if the conditions that caused the suspension have been resolved.

(D) The provider may be required to attend provider education sessions at the expense of the sanctioned provider;

(E) The Department may require that payment for certain services are made only after the Department has reviewed documentation supporting the services;

(F) The Department may require repayment of amounts paid or provide for reduction of any amount otherwise due the provider; and

(G) Any other sanctions reasonably designed to remedy or compel future compliances with federal, state, or Department regulations.

(c) The Department shall consider the following factors in determining the sanction to be imposed. Factors include but are not limited to:

(A) Seriousness of the offense;

(B) Extent of violations by the provider;

(D) Prior imposition of sanctions;

(E) Prior provider education;

(F) Provider willingness to comply with program rules;

(G) Actions taken or recommended by licensing boards or a QIO;

(H) Adverse impact on the availability of program-specific or contract covered services or the health of clients living in the provider's service area; and

(I) Potential financial sanctions related to the non-compliance may be imposed in an amount that is reasonable in light of the anticipated or actual harm caused by the non-compliance, the difficulties of proof of loss, and the inconvenience or non-feasibility of otherwise obtaining an adequate remedy.

(d) When a provider fails to meet one or more of the requirements identified in OAR 407-120-0300 through 407-120-0400, the Department, in its sole discretion, may immediately suspend the provider's Department assigned billing number and any electronic system access code to prevent public harm or inappropriate expenditure of public funds.

(A) The provider subject to immediate suspension is entitled to a contested case hearing pursuant to ORS 183 to determine whether the provider's Department assigned number and electronic system access code may be revoked; and

(B) The notice requirements described in section (5) of this rule do not preclude immediate suspension, in the Department's sole discretion, to prevent public harm or inappropriate expenditure of public funds. Suspension may be invoked immediately while the notice and contested case hearing rights are exercised.

(e) If the Department sanctions a provider, the Department shall notify the provider by certified mail or personal delivery service of the intent to sanction. The notice of immediate or proposed sanction shall identify:

(A) The factual basis used to determine the alleged deficiencies and a reference to the particular sections of the statutes and rules involved;

(B) Explanation of actions expected of the provider;

(D) The provider's right to dispute the Department's allegations and submit evidence to support the provider's position;

(E) The provider's right to appeal the Department's proposed actions pursuant to ORS 183;

(F) A statement of the authority and jurisdiction under which the appeal may be requested and description of the procedure and time to request an appeal; and

(G) A statement indicating whether and under what circumstances an order by default may be entered.

(f) If the Department decides to sanction a provider, the Department shall notify the provider in writing at least 15 days before the effective date of action, except in the case of immediate suspension to avoid public harm or inappropriate expenditure of funds.

(g) The provider may appeal the Department's immediate or proposed sanction or other actions the Department intends to take. The provider must appeal this action separately from any appeal of audit findings and overpayments. These include but are not limited to the following:

(A) Termination or suspension from participation in the Medicaid-funded medical assistance programs;

(B) Termination or suspension from participation in the Department's state-funded programs; or

(h) Other provisions:

(A) When a provider has been sanctioned, all other provider entities in which the provider has ownership of five percent or greater, or control of, may also be sanctioned;

(B) When a provider has been sanctioned, the Department may notify the applicable professional society, board of registration or licensure, federal or state agencies, OHP, PHP's and the National Practitioner Data Base of the findings and the sanctions imposed;

(C) At the discretion of the Department, providers who have previously been sanctioned or suspended may or may not be re-enrolled as Department providers;

(D) Nothing in this rule prevents the Department from simultaneously seeking monetary recovery and imposing sanctions against the provider;

(E) Following a contested case hearing in which a provider has been found to violate ORS 411.675, the provider shall be liable to the Department for treble the amount of payments received as a result of each violation.

History

Statutory/Other Authority: ORS 409.050 & 411.060
Statutes/Other Implemented: ORS 414.115, 414.125, 414.135 & 414.145
DHSD 11-2008, f. 12-26-08, cert. ef. 12-27-08
DHSD 6-2008(Temp), f. & cert. ef. 7-1-08 thru 12-27-08
DHSD 15-2007, f. 12-31-07, cert. ef. 1-1-08

Or. Admin. R. 407-120-0370 Requirements for Financial, Clinical, and Other Records

(1) The Department shall analyze and monitor the operation of its programs and audit and verify the accuracy and appropriateness of payment, utilization of services, or items.

(2) The Department shall comply with client coverage criteria and requirements for the level of care or service or item authorized or reimbursed by the Department and the quality of covered services or items and service or item delivery, and access to covered services or items.

(3) The provider and the provider's designated billing service or other entity responsible for the maintenance of financial, service delivery, and other records must:

(a) Develop and maintain adequate financial and service delivery records and other documentation which supports the specific care, items, or services for which payment has been requested. The Department shall not make payment for services that are not adequately documented. The following documentation must be completed before the service is billed to the Department:

(A) All records documenting the specific service provided, the number of services or items comprising the service provided, the extent of the service provided, the dates on which the service was provided, and identification of the individual who provided the service. Patient account and financial records must also include documentation of charges, identify other payment resources pursued, indicate the date and amount of all debit or credit billing actions, and support the appropriateness of the amount billed and paid. For cost reimbursed services, the provider must maintain adequate records to thoroughly and accurately explain how the amounts reported on the cost statement were determined.

(B) Service delivery, clinical records, and visit data, including records of all therapeutic services, must document the basis for service delivery and record visit data if required under program-specific rules or contracts. A client's clinical record must be annotated each time a service is provided and signed or initialed by the individual providing the service or must clearly identify the individual providing the service. Information contained in the record must be sufficient in quality and quantity to meet the professional standards applicable to the provider or practitioner and any additional standards for documentation found in this rule, program-specific rules, and any pertinent contracts.

(C) All information about a client obtained by the provider or its officers, employees, or agents in the performance of covered services, including information obtained in the course of determining eligibility, seeking authorization, and providing services, is confidential. The client information must be used and disclosed only to the extent necessary to perform these functions.

(b) Implement policies and procedures to ensure confidentiality and security of the client's information. These procedures must ensure the provider may release such information in accordance with program-specific federal and state statutes or contract, which may include but is not limited to, ORS 179.505 to 179.507, 411.320, 433.045, 42 CFR part 2, 42 CFR part 431 subpart F, 45 CFR 205.50, and ORS 433.045(3) with respect to HIV test information.

(A) A provider's electronic record-keeping system includes electronic transactions governed by HIPAA transaction and code set requirements and records, documents, documentation, and information include all information, whether maintained or stored in electronic media, including electronic record-keeping systems, and information stored or backed up in an electronic medium.

(B) If a provider maintains financial or clinical records electronically, the provider must be able to provide the Department with hard-copy versions. The provider must also be able to provide an auditable means of demonstrating the date the record was created and the identity of the creator of a record, the date the record was modified, what was changed in the record and the identity of any individual who has modified the record. The provider must supply the information to individuals authorized to review the provider's records under subsection (e) of this rule.

(C) Providers may comply with the documentation review requirements in this rule by providing the electronic record in an electronic format acceptable to an authorized reviewer. The authorized reviewer must agree to receive the documentation electronically.

(d) Retain service delivery, visit, and clinical records for seven years and all other records described in this rule, program-specific rules and contract for at least five years from the date of service.

(e) Furnish requested documentation (including electronically recorded information or information stored or backed up in an electronic medium) immediately or within the time-frame specified in the written request received from the Department, the Oregon Secretary of State, DHHS or other federal funding agency, Office of Inspector General, the Comptroller General of the United States (for federally funded programs), MFCU (for Medicaid-funded services or items), or the client representative. Copies of the documents may be furnished unless the originals are requested. At their discretion, official representatives of the Department, Medicaid Fraud Unit, DHHS, or other authorized reviewers may review and copy the original documentation in the provider's place of business. Upon written request of the provider, the program or the unit, may, at its sole discretion, modify or extend the time for provision of such records if, in the opinion of the program or unit good cause for such extension is shown. Factors used in determining if good cause exists include:

(A) Whether the written request was made prior to the deadline for production;

(B) If the written request is made after the deadline for production, the amount of time lapsed since that deadline;

(D) The reasons the deadline cannot be met;

(E) The degree of control that the provider had over its ability to produce the records prior to the deadline; and

(F) Other extenuating factors.

(f) Access to records, inclusive of clinical charts and financial records does not require authorization or release from the client, unless otherwise required by more restrictive state and federal regulations if the purpose of such access is:

(A) To perform billing review activities;

(B) To perform utilization review activities;

(D) To facilitate service authorization and related services;

(E) To investigate a client's hearing request;

(F) To facilitate investigation by the MFCU or DHHS; or

(G) To review records necessary to the operation of the program.

(g) Failure to comply with requests for documents within the specified time-frame means that the records subject to the request may be deemed by the Department not to exist for purposes of verifying appropriateness of payment, clinical appropriateness, the quality of care, and the access to care in an audit or overpayment determination, and subjects the provider to possible denial or recovery of payments made by the Department or to sanctions.

History

Statutory/Other Authority: ORS 409.050 & 411.060
Statutes/Other Implemented: ORS 414.115, 414.125, 414.135 & 414.145
DHSD 11-2008, f. 12-26-08, cert. ef. 12-27-08
DHSD 6-2008(Temp), f. & cert. ef. 7-1-08 thru 12-27-08
DHSD 15-2007, f. 12-31-07, cert. ef. 1-1-08

Or. Admin. R. 407-120-0380 Fraud and Abuse

(1) Providers shall promptly refer all suspected fraud and abuse, including fraud or abuse by its employees or in Department administration, to the MFCU, or to the Department's audit unit.

(2) Providers must permit the MFCU and the Department to inspect, copy, evaluate, or audit books, records, documents, files, accounts, and facilities, without charge, as required to investigate allegations or incidents of fraud or abuse.

(3) Providers aware of suspected fraud or abuse by a client must report the incident to the Department's fraud unit.

(4) The Department may share information for health oversight purposes with the MFCU and other federal or state health oversight authorities.

(5) The Department may take actions necessary to investigate and respond to substantiated allegations of fraud and abuse including but not limited to suspending or terminating the provider from participation in the Department's programs, withholding payments or seeking recovery of payments made to the provider, or imposing other sanctions provided under state law or regulations. Such actions by the Department may be reported to CMS or other federal or state entities as appropriate.

History

Statutory/Other Authority: ORS 409.050 & 411.060
Statutes/Other Implemented: ORS 414.115, 414.125, 414.135 & 414.145
DHSD 11-2008, f. 12-26-08, cert. ef. 12-27-08
DHSD 6-2008(Temp), f. & cert. ef. 7-1-08 thru 12-27-08
DHSD 15-2007, f. 12-31-07, cert. ef. 1-1-08

Or. Admin. R. 407-120-0400 MMIS Replacement Communication Plan

(1) The purpose of this rule is to describe the Department’s plan for communicating instructions and guidance related to the Department’s implementation of the replacement MMIS that began on December 9, 2008. System issues are anticipated to be identified for a period of time during and after implementation. This rule is adopted to be effective retroactively to December 9, 2008 for the purpose of providing continuity of all MMIS communication efforts throughout the transition implementation process and regular operations following the transition. By adopting this communication plan in rule, the Department seeks to assure that eligible Department clients receive all necessary and appropriate services, and that Department providers and PHPs are correctly reimbursed for covered services provided to eligible clients.

(2) To the extent necessary to accomplish the purposes of this rule, the Department shall provide guidance and instructions related to MMIS for providers and PHPs using its web site and MMIS provider announcements.

(a) In cases of limitations or system errors in the replacement MMIS, the Department shall provide update information and important action required in concert with, or in place of, normal established procedures.

(b) In other cases, the Department shall provide instructions and guidance about the use of revised or improved functionality that is available through the replacement MMIS, such as the use of the web portal.

(3) Providers and PHPs must follow all applicable instructions given on the Department’s web page and any provider announcements for the dates specifically noted in the communications, or if a date is not specified, until further instructions are provided. Department web site information and links to specific topics may be accessed at: http://www.oregon.gov/DHS/healthplan/tools_prov/main.shtml.

(4) This rule does not amend existing rules or contracts that require providers or PHPs to confirm eligibility, respond to requests for prior authorization, submit claims or encounter data, or comply with any other rule or contract that imposes obligations on a provider or PHP as a condition of receiving reimbursement for services. This rule is intended to provide assurance to providers and PHPs that the MMIS-related processes for meeting those obligations are being addressed by the Department by providing guidance and instruction related to the provider’s or PHP’s interface with MMIS processes, and by identifying the resources providers and PHPs may use to obtain information during this time of transition to the replacement MMIS and during regular MMIS operations.

(5) The Department shall work with providers and PHPs by providing instructions and guidance to assure that service delivery and reimbursement disruptions related to transition to the replacement MMIS are minimized. Providers and PHPs must appropriately document all eligibility, services, authorization, claims, and payment information during the transition time, and their efforts to comply with instructions and guidance provided by the Department, so that reimbursement may be correctly provided.

(6) Providers and PHPs must immediately communicate to the Department any issues they encounter that are not addressed in the Department’s instructions or guidance in seeking eligibility information or activities related to reimbursement for services through MMIS, errors discovered in the correct amount of any reimbursement received for those services, or in applying the instruction or guidance to resolve an issue.

(7) After the transition period is complete, the Department shall continue to implement this communication plan as long as necessary during regular MMIS operations in order to assist providers and PHPs with technical and system requirements of the replacement MMIS.

History

Statutory/Other Authority: ORS 409.050 & 414.065
Statutes/Other Implemented: ORS 414.065
DHSD 4-2009, f. 7-1-09, cert. ef. 7-10-09
DHSD 1-2009(Temp), f. & cert. ef. 1-12-09 thru 7-10-09

Or. Admin. R. 407-120-1505 Provider and Contractor Audits, Appeals, and Post Payment Recoveries

(1) Providers or entities under contract with the Department of Human Services (Department) or the Oregon Health Authority (Authority) (hereafter referred to as “provider”) receiving payments from the Department or Authority are subject to audit or other post payment review procedures (hereafter referred to as “audit”) for all payments applicable to items or services furnished or supplied by the provider to or on behalf of Department or Authority clients.

(a) Audit rules and procedures ensure proper payments were made based on requirements applicable to covered services, ensure program integrity of the Department or Authority programs and services as outlined in OAR 407-120-0310, and establish authority for the Office of Payment, Accuracy and Recovery (OPAR), Provider Audit Unit (PAU) to recover overpayments and discover possible instances of fraud, waste, and abuse.

(b) The Department and Authority share duties and functions related to audits and have the authority to determine which of the two agencies is authorized to fulfill a particular function. References in this rule to one agency should be construed to include, as the context requires, either or both agencies.

(2) The Department may employ internal staff, consultants, or contractors, or cooperate with federal or state oversight authorities or other designees to conduct an audit or perform other audit procedures. The Department shall assign a contractor or one or more individuals to conduct the audit (hereafter referred to as “auditor”).

(3) The auditor or PAU management shall determine the scope, time period, objective, and subject matter covered by the audit.

(4) The authority for access to records is found in OAR 407-120-0370 and 410-120-1360 and other terms of agreements or contracts authorizing access to records for audit purposes.

(5) The auditor may conduct an on-site field audit, examine and copy records at the provider’s expense, interview employees, and conduct such field work as the auditor determines shall provide sufficient and competent evidential basis for drawing conclusions about the audit subject matter.

(6) The auditor may conduct a desk audit of records requested by the auditor and supplied by the provider, at the provider’s expense, or other source as necessary for the auditor to determine sufficient and competent evidential basis for drawing conclusions about the audit subject matter.

(7) The auditor may consider other audits of the provider including but not limited to reviews conducted by the appropriate federal authority and the provider's independent audit of the provider's financial statements, which may include those performed by internal auditors, audit organizations, or contractors established by the federal or state government for the auditing of the Department or Authority programs.

(a) The auditor may consider other indicators or issues related to program integrity activities. The auditor may also consider past or present program integrity activities listed in OAR 407-120-0310 that have identified same or similar instances of non-compliance.

(b) The auditor shall determine the scope of other audit work and evaluate the reliability of its relationship to the scope and objective of the audit being conducted in determining the weight to be given to the other audit work.

(8) PAU may use a random sampling method such as that detailed in the paper entitled "Development of a Sample Design for the Post-Payment Review of Medical Assistance Payments," written by Lyle Calvin, Ph.D., (Calvin Paper). The Department adopts by reference but is not limited to following the method of random sampling and calculation of overpayment described in the Calvin Paper:

(a) In determining whether to use an overpayment calculation method set forth in section (8) of this rule, the auditor or PAU management may consider:

(A) The provider's overall error rate identified in the audit;

(B) If past audits have identified the same or similar instances of non-compliance;

(D) Any adverse impact on the health of the Department or Authority’s clients and their access to services in the provider's service area.

(b) If the auditor determines an overpayment amount by a random sampling and overpayment calculation method set forth in section (8) of this rule, the provider may request a 100 percent audit of all billings from the same time period of the audit submitted to the Department or Authority for items or services furnished or supplied to or on behalf of Department or Authority clients. If a 100 percent audit is requested:

(A) Payment and arrangement for a 100 percent audit shall be paid by the provider requesting the audit;

(B) The audit must be conducted by an independent auditor or other individual whose qualifications the Department has determined, in writing, to be acceptable, who is knowledgeable with the Oregon Administrative rules covering the payments in question, who must waive any privilege to PAU in relation to the work papers and work product of the independent auditor;

(C) The 100 percent audit must be completed within 90 calendar days of the provider's request to use such audit in lieu of the Department’s random sample;

(D) The provider must waive all rights to appeal the factual findings of the independent auditor; and

(E) The independent auditor must produce a final audit report or similar document detailing the findings of the 100 percent audit, including the overpayment assessment and recommendations to the provider and PAU. The independent auditor’s work papers must be made available to the Department auditor upon request.

(9) The auditor shall prepare a preliminary audit report or similar document and deliver the preliminary audit report to the provider in person, or by registered or certified mail. The preliminary audit report shall inform the provider of the opportunity to provide additional documentation to the auditor about the information within the scope of the preliminary audit report.

(a) Refusing to accept the registered or certified mail or in-person delivery shall not stop the audit process from proceeding forward.

(b) The provider shall have 30 calendar days from the postmark date of the preliminary audit report to respond to the audit or request an informal meeting with the auditor. The informal meeting to review the report shall be held within 45 days from the date of the request for an information meeting.

(c) The provider may request, in writing to the auditor, a 15-day extension to the preliminary audit report response due date for the purpose of submitting additional documentation. The extension must be authorized in writing by the auditor or PAU management. An additional 15-day extension, requested in writing, may be granted at the discretion of PAU management.

(10) The auditor shall prepare a final audit report or similar document which is also the Department or Authority’s final order, and deliver the final audit report in person, or by registered or certified mail. The audit record that forms the basis for the final audit report shall be closed on the date of the final audit report. The final audit report shall include but is not limited to an overpayment assessment, findings, recommendations, and sanctions.

(a) The overpayment assessment stated in the final audit report shall include but is not limited to the amount of overpayment PAU is authorized to recover and:

(A) Is not limited to amounts determined by criminal or civil proceedings;

(B) May include interest to be charged at allowable state rates; and

(b) Refusing to accept the registered or certified mail or in-person delivery shall not stop the audit process from proceeding.

(c) If the provider disagrees with the final audit report or the overpayment amount, the provider must appeal the decision within 30 calendar days from the postmark date of the final audit report by submitting a written request for either an administrative review or a contested case hearing to the OPAR Administrator. The written request for appeal must outline in detail the areas of disagreement.

(A) The OPAR Administrator or designee (hereafter referred to as “Administrator”) shall determine which appeals may be suitable for review as administrative review or contested case hearing, taking into consideration issues presented in the request for review and the purposes served by administrative review in section (12) or contested case hearing in section (13) of this rule.

(B) If the Administrator decides the determinations of the final audit report or the content of appeal is appropriate for a contested case hearing or denies a request for an administrative review on the basis the appeal should be heard as a contested case hearing, the Administrator shall notify the provider and refer the appeal directly to the Office of Administrative Hearings (OAH) for a contested case hearing pursuant to these rules.

(11) If a provider fails to request an appeal within the time frame specified in section (10) of this rule the final audit report, overpayment amount, and all recommendations and sanctions shall become final. Appeal requests submitted to PAU must:

(a) Be in writing to the Administrator.

(A) The appeal request is not required to follow a specific format as long as it provides clear written expression from the provider expressing disagreement with the final audit report findings.

(B) The request must specify issues or decisions being appealed and the specific reason for the appeal on each finding or decision. The request must provide specifics for each claim such as procedure code, diagnosis code, reason for denial, administrative rules, or other authority applicable to the issue, and why the provider disagrees with the decision. If this information is not included in the appeal request in a manner that reasonably permits the Administrator to understand the decision being appealed or the basis for the appeal, the request shall be returned to the provider and the provider shall be required to resubmit the appeal within 10 working days from the date PAU returned the appeal to the provider.

(b) Be received by the Administrator within 30 calendar days from the postmark date of the final audit report.

(A) Late requests require written supporting documentation explaining reason for a late request. The Administrator shall determine whether failure to file a timely request was caused by circumstances beyond the control of the provider and enter an order accordingly. The Administrator may conduct further inquiry as deemed appropriate. In determining timelines of filing a request for review, the amount of time the Administrator determines accounts for circumstances beyond the control of the provider is not counted.

(B) The untimely request may be referred to the OAH for a hearing on the question of timeliness.

(12) Administrative review allows opportunity for the Administrator to review a decision affecting the provider. Appeals are limited to legal or policy issues where there is a stipulation of factual matters to be heard.

(a) Administrative review meetings shall be:

(A) Scheduled within 45 calendar days of receipt of the written request by the Administrator;

(i) The Administrator shall prove written notice to the provider of the date, time, and place of the meeting.

(ii) If the Administrator decides a preliminary meeting between the provider and PAU staff may assist the administrative review, the Administrator shall provide written notice to the provider of the date, time, and place the preliminary meeting is scheduled.

(B) Held in Salem, unless otherwise stipulated to by all parties and PAU;

(D) Department or Authority staff shall not be available for cross-examination;

(E) Department or Authority staff may attend and participate in the meeting; and

(F) The provider is not required to be represented by legal counsel and shall be given ample opportunity to present relevant information from the existing case record.

(b) If a provider fails to appear at the administrative review meeting, the final audit report, all findings including the overpayment, and recommendations and sanctions as specified in the report shall become final. In addition, the provider may not appeal the final audit report.

(c) The results of the meeting shall be sent to the provider, in writing, by registered or certified mail within 30 calendar days of the conclusion of the administrative review proceedings. The result of the administrative review is final.

(d) All administrative review decisions are subject to procedures established in OAR 137-004-0080 to 137-004-0092 and judicial review under ORS 183.484 in the Circuit Court.

(13) The contested case hearing process is conducted in accordance with ORS 183.411 to 183.497 and the Attorney General’s Uniform and Model Rules of Procedure for the Office of Administrative Hearings, OAR 137-003-0501 to 137-003-0700.

(a) If the Administrator decides a contested case pre-hearing conference between the provider and PAU staff shall assist the contested case hearing, the Administrator shall notify the provider of the time and place of contested case pre-hearing conference without the presence of an administrative law judge. The purpose of the pre-hearing conference is to:

(A) Provide an opportunity to settle the matter or discuss Model Rules of Procedure for contested case hearings listed in OAR 137-003-0575. Any agreement reached in a pre-hearing conference shall be submitted to the administrative law judge in writing or presented orally on the record at the contested case hearing;

(B) Provide an opportunity for the provider and PAU to review the information, correct any misunderstanding of facts, and understand the reason for the action that is the subject of the contested case hearing; or

(b) Prior to the date of the contested case hearing, the provider may request an additional pre-hearing conference with PAU representatives. The request shall be made in writing to the Administrator. An additional pre-hearing conference may be granted at the sole discretion of the Administrator if the additional pre-hearing conference is determined to facilitate the contested case hearing process or resolution of disputed issues.

(d) The OAH shall serve a proposed order on behalf of PAU unless PAU notifies the parties that PAU shall issue the final order. The proposed order shall become the final order if no exceptions are filed within the time specified in this rule.

(e) The provider may file exceptions or written argument to the proposed order to be considered by PAU. The exceptions must be in writing and received by OPAR within 10 calendar days after the date the proposed order is issued. No additional evidence may be submitted. After receiving the exceptions or argument, PAU may adopt the proposed order as the final order, amend the order, or prepare a new order.

(f) A provider may withdraw a contested case hearing request at any time. The OAH shall send a final order confirming the withdrawal to the provider.

(14) If neither the provider nor the provider’s legal representative appears at the contested case hearing, PAU may elect one of the following options in its sole discretion:

(a) The contested case hearing request may be dismissed by order. PAU may cancel the dismissal order upon request of the party on a showing that the party was unable to attend the hearing and unable to request a postponement for reasons beyond the provider’s control.

(b) PAU may enter a final order by default. Entry of a final order by default may be made when PAU determines that the issuance of a final order with findings is appropriate as a basis of sanction authority or to establish a basis for future sanction authority or other reason consistent with the administration of the Department or Authority programs. The designated record, for purposes of a default order, shall be the record as designated in the notice issued to the provider. If not so designated, the designated record shall consist of the files and records held by PAU in the contested case hearing packet prepared by PAU.

(15) Final orders are effective immediately upon being signed or as otherwise provided in the order.

(a) Final orders resulting from a provider’s withdrawal of a contested case hearing request is effective the date the provider’s request is received by PAU or the OAH, whichever is sooner.

(b) When the provider fails to appear for the contested case hearing, the effective date of the dismissal order or the final order by default is the date of the scheduled contested case hearing.

(16) The burden of presenting evidence to support a fact or position rests on the proponent of the fact or position. Pursuant to OAR 410-120-1360, payment on a claim shall only be made for services that are adequately documented and billed in accordance with OAR 410-120-1280 and 407-120-0330 and include all applicable administrative rules and applicable contract terms related to covered services for the client’s benefit package, and the establishment of conditions under which services, supplies or items are covered, including but not limited to the Prioritized List, diagnosis and procedure coding, medical appropriateness, and other applicable standards.

(17) The Administrator, in consultation with appropriate Department or Authority authorities, may grant the provider the relief sought at any time.

(18) Overpayments must be paid within 30 calendar days from the postmark date of the final audit report. The provider may submit a request to the auditor or PAU management for a payment plan to satisfy this requirement. The auditor and PAU management may not waive this overpayment requirement.

(a) A request for an administrative review or contested case hearing shall not change the date the overpayment is due or a payment plan is to commence, unless otherwise stipulated in writing by the Administrator.

(b) PAU management may extend the reimbursement period or accept an offer of payment terms. PAU must make any change in the reimbursement period or terms in writing.

(A) The request for a payment plan must be made in writing to PAU management. The auditor or PAU management shall notify the provider, in writing, of the decision regarding acceptance or denial of the request.

(B) If the payment plan is agreeable to all parties, the auditor or PAU management shall ensure the payment plan is in writing and signed by all parties. A payment plan may include charging interest at the allowable state rate.

(A) Recoup, in any manner available to PAU, future provider payments up to the amount of the overpayment;

(B) Pursue civil action to recover the overpayment; or

(d) As a result of a contested case hearing or an administrative review, the amount of the overpayment may be reduced in part or in full.

(e) PAU may at any time change the amount of the overpayment in accordance with this rule. The provider shall be notified of any changes in writing by certified or registered mail. PAU shall refund the provider any monies paid to PAU in excess of the overpayment.

(f) If a provider is terminated from participation in Department or Authority programs or sanctioned for any reason, PAU may pursue civil action to recover any amounts due and payable.

(g) If the auditor, in the course of an audit, discovers the provider has continued in the same or similar improper billing practices as established or upheld if appealed, in a previously published final audit report by PAU, or has been warned in writing by the Department or Authority, PAU, or the Department of Justice about improper billing practices, the provider may be liable to PAU for up to triple the amount of the current final audit report establishing the overpayment received by the provider as a result of such violation.

(19) Providers who conduct electronic data transactions with the Department or Authority must adhere to requirements of OAR 407-120-0100 to 407-120-0200. This rule only applies to services or items paid for by the Department or Authority. If the provider maintains financial or clinical records electronically, the provider must ensure the use of electronic record keeping systems does not alter the requirements of OAR 407-120-0370.

(a) The provider's electronic record keeping system includes electronic transactions governed by HIPAA transaction and code set requirements and records, documents, and documentation, whether maintained or stored in electronic media, including electronic record-keeping systems and information stored or backed up in an electronic medium.

(b) If the provider maintains financial or clinical records electronically, the provider must be able to provide PAU with hard copy versions, if requested. The provider must also be able to provide an auditable means of demonstrating the date the record was created, the identity of the creator of a record, the date the record was modified, what was modified in the record, and the identity of any individual who has modified the record. The provider must supply the information to individuals authorized to review the provider's records pursuant to OAR 407-120-0370(3)(e).

(c) If the provider maintains records electronically or permits the use of electronic signatures, the provider must document any aspect of the provision of services. The provider must maintain appropriate safeguards to assure the authenticity of the electronic records and signatures. The provider may not challenge the authenticity or admissibility of the electronic signature or documents in any audit, review, hearing, or other legal proceeding.

(d) Providers must comply with the documentation review requirements in OAR 407-120-0370 by providing the electronic record in an electronic format acceptable to an authorized reviewer. The authorized reviewer must agree to receive the documentation electronically.

History

Statutory/Other Authority: ORS 409.050, 411.060 & 413.032
Statutes/Other Implemented: ORS 409.010, 409.180, 414.025 & 414.065
DHSD 6-2020, temporary amend filed 07/20/2020, effective 07/20/2020 through 01/15/2021
DHSD 1-2018, minor correction filed 02/02/2018, effective 02/02/2018
DHSD 3-2015, f. & cert. ef. 6-18-15
Renumbered from 410-120-1505 by DHSD 9-2010, f. & cert. ef. 9-1-10
OMAP 39-2005, f. 9-2-05, cert. ef. 10-1-05