411-360-0260 Civil Penalties (1) A civil penalty of not less than $100 and not more than $250 per violation, except as otherwise provided in this rule, is imposed on a licensee for a general violation of these rules. (2) A civil penalty of up to $500, unless otherwise required by law, is imposed for falsifying individual or AFH-DD records or causing another to falsify individual or AFH-DD records. (3) A civil penalty of $250 is imposed on a licensee for failure to have either the provider, resident manager, or other qualified caregiver on duty 24 hours per day in the AFH-DD per ORS 443.725(3), unless permitted under OAR 411-360-0180(5). (4) A civil penalty of $250 is imposed for dismantling or removing the battery from any required smoke alarm or failing to install any required smoke alarm. (5) A civil penalty of not less than $250 and not more than $500, unless otherwise required by law, is imposed on a licensee who admits knowing that the care or service needs of an individual exceed the license classification of the AFH-DD if the admission places the individual or other individuals at grave risk of harm. (6) Civil penalties of up to $1,000 per occurrence may be assessed for substantiated abuse. (7) If the Department conducts an abuse investigation and the substantiated abuse resulted in the death, serious injury, rape, or sexual abuse of an individual, a civil penalty of not less than $2,500 is imposed for each violation. (a) To impose the civil penalty in section (7) of this rule, the Department must establish that: (A) The abuse arose from deliberate or other than accidental action or inaction; (B) The conduct resulting in the abuse was likely to cause death, serious injury, rape, or sexual abuse of an individual; and (C) The person with the substantiated finding of abuse had a duty of care and services toward the individual. (b) For the purpose of the civil penalty in section (7) of this rule, the following definitions apply: (A) "Serious injury" means a physical injury that creates a substantial risk of death or that causes serious disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ. (B) "Rape" means rape in the first, second, or third degree as described in ORS 163.355, 163.365, and 163.375. (C) "Sexual abuse" means any form of nonconsensual sexual contact including, but not limited to, unwanted or inappropriate touching, sodomy, sexual coercion, sexually explicit photographing, or sexual harassment. The sexual contact must be in the form of any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party. (D) "Other than accidental" means failure on the part of the licensee, employees, agents, or volunteers for whose conduct licensee is responsible, to comply with applicable Oregon Administrative Rules. (8) In addition to any other liability or penalty, the Department may impose a civil penalty for any of the following: (a) Operating the AFH-DD without a license; (b) The number of individuals exceeds the licensed capacity for the AFH-DD; (c) The licensee fails to achieve satisfactory compliance with the requirements of these rules within the time specified or fails to maintain such compliance; (d) The AFH-DD is unable to provide an adequate level of care and services to support individuals in the AFH-DD; (e) There is retaliation or discrimination against an individual, family member, employee, or any other person for making a complaint against the AFH-DD; (f) The licensee fails to cooperate with the Department, physician, registered nurse, or other health care provider in carrying out the ISP or Service Agreement for an individual; (g) The licensee fails to obtain an approved background check from the Department on a subject individual as defined in OAR 411-360-0020 prior to the subject individual operating, working, training in, or residing in an AFH-DD; (h) Violations are found on two consecutive inspections of an AFH-DD after a reasonable amount of time prescribed for elimination of the violations has passed; or (i) Violations other than those involving the health, safety, or welfare of an individual if the licensee fails to correct the violation as required when a reasonable timeframe for correction was given. (9) In imposing a civil penalty pursuant to this rule, except for a civil penalty imposed pursuant to section (7) of this rule, the following factors are considered by the Department: (a) The past history of the licensee incurring a civil penalty in taking all feasible steps or procedures necessary or appropriate to correct any violation; (b) Any prior violations of statutes or rules pertaining to AFH-DD; (c) The economic and financial conditions of the licensee incurring the civil penalty; and (d) The immediacy and extent to which the violation threatens or threatened the health, safety, and welfare of the individuals. (10) The notice of civil penalty is delivered in person or sent by registered or certified mail and includes: (a) A reference to the particular sections of the statute, rule, standard, or order involved; (b) A short and plain statement of the matter asserted or charged; (c) A statement of the amount of the civil penalty or penalties imposed; and (d) A statement of the right of the licensee to request a contested case hearing. (11) The licensee has10 calendar days after the receipt of the notice of civil penalty in which to make a written application for a contested case hearing before the Department. A final order by default is issued by the Department if a written request for a contested case hearing is not timely received. (12) All contested case hearings are conducted pursuant to the applicable provisions of ORS chapter 183. (13) Except as may be prohibited by state law, a civil penalty imposed under ORS 443.455 or 441.710 may be remitted or reduced upon such terms and conditions as the Director of the Department considers proper and consistent with individual health and safety. (14) If a final order is not appealed, the amount of the civil penalty is payable within 10 days after the final order is entered. If the final order is appealed and is sustained, the amount of the civil penalty is payable within 10 days after the court decision. The final order, if not appealed or sustained on appeal, constitutes a judgment and may be filed in accordance with provisions of ORS Chapter 18. Execution may be issued upon the order in the same manner as execution upon a judgment of a court of record. (15) A violation of any general order or final order pertaining to an AFH-DD issued by the Department is subject to a civil penalty in the amount of not less than $5 and not more than $500 for each and every violation. (16) Judicial review of civil penalties imposed under ORS 441.710 is provided under ORS 183.480, except that the court may, in its discretion, reduce the amount of the penalty. (17) All penalties recovered under ORS 443.455 and 441.710 to 441.740 are to be paid into the Quality Care Fund. Statutory/Other Authority: ORS 409.050, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.765, 443.767, 443.775 & 443.790 Statutes/Other Implemented: ORS 443.705 - 443.825 History: APD 33-2019, minor correction filed 09/16/2019, effective 09/16/2019 APD 21-2016, f. & cert. ef. 6-29-16 SPD 34-2013, f. & cert. ef. 9-27-13 SPD 5-2012, f. & cert. ef. 5-29-12 SPD 13-2010, f. 6-30-10, cert. ef. 7-1-10 SPD 3-2005, f. 1-10-05, cert. ef. 2-1-05