309-008-0905 Conditions (1) The Division may elect at any time and at its discretion to place conditions on a certificate upon a finding that: (a) The applicant or provider employs or contracts with any program staff for whom there is substantiated evidence of abuse, neglect, or mistreatment; (b) The applicant or provider employs or contracts with any program staff that fails to meet relevant minimum qualifications described in these rules, service delivery rules, or other applicable law; (c) There is substantiated evidence of abuse, neglect, or mistreatment; (d) The applicant or provider operates such that there is a threat to the health, welfare, or safety of an individual or the public; (e) The applicant or provider has substantially failed to comply with these rules, service delivery rules, or other applicable law; (f) The applicant or provider fails to fully implement a POC or adequately maintain a corrective action; (g) The Division has issued the applicant or provider through two or more consecutive certification reviews substantially similar findings of non-compliance with these rules, service delivery rules, or other applicable administrative rules, statutes, or regulations; (h) There is a need for increased regulatory oversight of the applicant or provider; or (i) The applicant or provider fails to comply with any reporting requirements relating to funding certification. (2) The Division shall consider the sum of the circumstances including but not limited to the following criteria when deciding whether to impose conditions as opposed to denying, suspending, refusing to renew, or revoking a certificate: (a) The expressed willingness and demonstrated ability of the applicant or provider to gain and maintain compliance with all applicable administrative rules and law; (b) Submission of a POC prescribing reasonable, sustained, and timely resolution to areas of non-compliance; (c) The relative availability of alternative providers to address any service needs that would be unmet if the applicant or provider is not issued a certificate with conditions as an alternative to revocation or refusal to award a certificate; or (d) The applicant or provider’s historical compliance with Division rules, previous conditions placed on certificates, and previous POC’s. (3) Conditions to the certificate may include: (a) Requiring corrective actions with associated timeframes for completion necessary for the applicant or provider to correct areas of non-compliance or concerns identified by the Division; (b) Limiting the total number of individuals enrolled in services or on a waitlist for services; (c) Limiting the population such as narrowing the age range of individuals who the applicant or provider may serve; (d) Limiting the scope and type of services that the applicant or provider may provide; (e) Other conditions deemed necessary by the Division to ensure the health and safety of individuals and the public; and (f) Other conditions deemed necessary by the Division for the purpose of ensuring regulatory compliance with this or other applicable administrative rules and law. (4) The Division may issue a notice of intent to impose conditions as described in section (15) of this rule or may impose conditions on a certificate with notice or without notice as described in sections (4) to (8). In imposing conditions with notice or without notice, a provider or an applicant may request an informal conference: (a) The Division may issue the conditions with notice by issuing a Notice of Impending Imposition of Certificate Condition (Notice) at least 48 hours prior to issuing an Order Imposing Certificate Condition (Order) to a provider or an applicant. After the Order is issued, the Division shall revise the certificate to indicate the conditions that have been ordered; (b) The Division may impose the conditions without notice only if the Division determines that there is an imminent threat to individuals such that the Division determines it is not safe or practical to give an applicant or a provider advance notice. The Division may impose the conditions without notice by issuing an Order to a provider or an applicant. After the Order is issued, the Division shall revise the certificate to indicate the conditions that have been ordered. (5) The Notice may be provided in writing or orally. When the Notice is provided in writing, it shall be sent by certified or registered mail or delivered in person to the applicant or provider. If the Notice is provided orally, it may be provided by telephone or in person to the applicant, provider, or person represented as being in charge of the program. When the Notice is delivered orally, the Division shall subsequently provide written notice to the applicant or provider by registered or certified mail. The Notice shall: (a) Generally describe the acts or omissions of the applicant or provider and the circumstances that led to the finding that the imposition of a certificate condition is warranted; (b) Generally describe why the acts or omissions and the circumstances create a situation for which the imposition of a condition is warranted; (c) Provide a brief statement identifying the impending condition; (d) Identify a person within the Division whom the applicant or provider may contact and who is authorized to enter the Order or to make recommendations regarding issuance of the Order; (e) Specify the date and time the Order is scheduled to take effect; and (f) Offer that the applicant or provider may request an informal conference prior to the issuance of the Order Imposing Certificate Condition, or if the provider has already requested an informal conference, specify the date and time that an informal conference shall be held. (6) If an informal conference is requested regarding conditions, the conference shall be held at a location designated by the Division. If determined to be appropriate by the Division, the conference may be held by telephone. Following the informal conference, the Division may modify the conditions. The timing of the informal conference is described as follows: (a) If a Notice is issued, the applicant or provider may request an informal conference to object to the Division’s proposed action before the condition is scheduled to take effect. The request for an informal conference shall be made prior to the date the conditions are intended to be effective. If timely requested, the informal conference shall be held within seven days of the request. The Order Imposing Condition may be issued at any time after the informal conference; (b) If an Order Imposing Condition is issued without a prior Notice, the applicant or provider may within 48 hours of the issuance of the Order request an informal conference. If timely requested, the informal conference shall be held within two business days of receipt of the request. Following the informal conference, the Division at its discretion may modify the conditions. (7) When an Order is issued, the Division must serve the Order either personally or by registered or certified mail. The Order must include the following statements: (a) The authority and jurisdiction under which the condition is being issued; (b) A reference to the particular sections of the statute and administrative rules involved; (c) The effective date of the condition; (d) A short and plain statement of the nature of the matters asserted or charged; (e) The specific terms of the certificate condition; (f) Right to request a contested case hearing under ORS Chapter 183.411 to 500; (g) A statement that if a request for hearing is not received by the Division within 21 days of the date of the Order, the applicant or provider shall have waived the right to a hearing under ORS Chapter 183.411 to 500; (h) Findings of specific acts or omissions of the applicant or provider that are grounds for the condition and the reasons the acts or omissions create a situation for which the imposition of a certificate condition is warranted; and, (i) A statement that the Division may combine the hearing on the Order with any other proceeding affecting the certificate. The procedures for the combined proceeding must be those applicable to the other proceedings affecting the certificate. (8) Hearing: (a) If the Division serves an Order Imposing Condition, the applicant or provider is entitled to a contested case hearing.; (b) The Division must receive the request for a hearing within 21 days of the date of Order. If a request for hearing is not received by the Division within 21 days of the date of the Order, the applicant or provider shall have waived the right to a hearing; (c) The applicant or provider may request a contested case hearing regarding the imposition of the conditions in addition to or in lieu of an informal conference. Requesting a contested case hearing may not delay the effective date of the conditions. (9) When a restriction of enrollment or intake is in effect pursuant to an Order, the Division in its sole discretion may authorize the provider to admit or serve new individuals for whom the Division determines that alternate placement or provider is not feasible. (10) Conditions may be imposed for the duration of the certificate or limited to some other shorter period of time. If the condition corresponds to the certificate period, the reasons for the condition shall be considered at the time of renewal to determine if the conditions are still appropriate. The effective date and expiration date of the condition shall be indicated on the certificate. (11) When the applicant or provider determines that the circumstances leading to imposition of the condition no longer exist and that effective systems are in place to ensure that similar deficiencies do not recur, the applicant or provider may make written request to the Division for re-inspection. (12) Re-inspection: (a) If the Division finds that the situation for which the condition was imposed has been corrected and finds that systems are in place to ensure that similar deficiencies do not recur, the condition shall be withdrawn, and the Division must revise the certificate accordingly. Following re-inspection, the Division shall notify the facility by telephone of the decision to withdraw the condition. Telephone notification shall be followed by written notification; (b) If the Division determines after a re-inspection that the situation for which the condition was imposed continues to exist or that there are not sufficient systems in place to prevent similar deficiencies, the certificate condition may not be withdrawn, and the Division is not obligated to re-inspect again for at least 45 days. A decision not to withdraw the Order shall be given to the applicant or provider in writing, and the applicant or provider shall be informed of the right to a contested case hearing. Nothing in this rule is intended to limit the Division’s authority to conduct a certification review at any time. (13) The Division may deny and refuse to renew or revoke the certificate when the provider or applicant fails to comply timely with the condition. (14) When the Division orders a condition be placed on a certificate With Notice or Without Notice under the provisions of this rule, the applicant or provider is entitled to request a contested case hearing. (15) In addition to or instead of imposing conditions With Notice or Without Notice as described in sections (4) to (8) and (14), the Division may issue a notice of intent to impose a condition with the opportunity for a contested case hearing prior to imposing the condition. Notices of intent to impose a condition shall be issued consistent with sections (1)-(3) and (9)-(13). Statutory/Other Authority: ORS 179.040, 179.505, ORS 413.042, 413.032-413.033, 426.072, 426.236, 426.500, 430.010, 430.021, 430.256, 430.357, 430.560, 430.640, 430.870 & 743A.168 Statutes/Other Implemented: ORS 413.520, 426.060, 426.140, 430.010, 430.254, 430.335, 430.590, 430.620 & 430.637 History: BHS 11-2018, amend filed 05/10/2018, effective 05/10/2018 MHS 15-2017, temporary amend filed 12/01/2017, effective 12/01/2017 through 05/29/2018 MHS 4-2017, f. 5-23-17, cert. ef. 6-1-17 MHS 30-2016(Temp), f. 12-30-16, cert. ef. 1-1-17 thru 6-29-17