justicedao/ipfs_state_laws huggingface dataset:
411-071-0080 Complaints Against Certified Programs (1) Any person who believes these rules or the provisions of ORS 410.505 to 410.545 have been violated may file a complaint with the Department or with a local Area Agency on Aging/Seniors and People with Disabilities unit. (2) The Department or its representative must notify the certified program that a complaint has been filed. (3) After consultation with the local area agency on aging/Seniors and People with Disabilities unit, the Department or its designee will investigate the complaint. Department investigators may interview employees of the certified program and must have access to pertinent documents and records of the program. The Department will notify the program of the results of the investigation and any proposed action or sanction. (4) Any complainant, witness or employee of a certified program must not be subject to retaliation by a program for making a report, for being interviewed about a complaint, or for being a witness. (5) The certified program is responsible for violation of these rules by its employees, subcontractors or agents. Statutory/Other Authority: ORS 410.535 Statutes/Other Implemented: ORS 410.505 - 410.545 History: SPD 30-2004, f. 8-27-04, cert. ef. 9-1-04 SSD 3-1991, f. & cert. ef. 2-1-91
411-071-0085 Procedures for Corrections of Violations (1) After investigation, if the Department has determined that a certified program has violated the Act or these rules, the Department or its authorized representative must so notify the program in writing. The Notice of Violation must include: (a) A description of the matters asserted or charged; (b) A reference to the particular section of the statute, rule or order involved; (c) A specific time frame for correction, that must be no later than 60 days after receipt of the notice; (d) A statement of the sanctions that may be imposed against the program for failure to correct the violations; and (e) A statement of the right to request a hearing if a sanction is imposed. (2) At any time during the time frame for correction specified in the Notice of Violation, the certified program or the Department may request a conference. The conference must be scheduled within ten days of a request by either party. (3) The purpose of the conference is to discuss the violations stated in the Notice of Violation and to provide information to the certified program to assist the program in complying with the requirements of these rules. (4) The certified program must notify the Department of correction of violations no later than the date specified in the Notice of Violation. (5) The Department may reinvestigate the certified program after the date the Department receives the report of compliance or after the date by which the violations must be corrected as specified in the Notice of Violation. (6) All hearings must be conducted according to the applicable provisions of ORS 183.310 to 183.550. Statutory/Other Authority: ORS 410.535 Statutes/Other Implemented: ORS 410.505 - 410.545 History: SPD 30-2004, f. 8-27-04, cert. ef. 9-1-04 SSD 3-1991, f. & cert. ef. 2-1-91
411-071-0090 Complaint Records (1) A record must be maintained by the Department of all complaints and any action taken on the complaint. Any information regarding the investigation of the complaint must not be filed in the public file until the investigation has been completed. (2) The name, addresses and other identifying information of the complainant, client and any witnesses are confidential and must not be placed in the public record. (3) Any person has the right to inspect and photocopy the public complaint file maintained by the Department. Disclosure of information of the public complaint file must be governed by relevant statutes concerning public records and confidentiality. Statutory/Other Authority: ORS 410.535 Statutes/Other Implemented: ORS 410.505 - 410.545 History: SPD 30-2004, f. 8-27-04, cert. ef. 9-1-04 SSD 3-1991, f. & cert. ef. 2-1-91
411-071-0095 Sanctions (1) The Department may suspend, revoke or refuse to renew the certification to provide admission assessment if the Department finds that the program has violated any provision of the Act or these rules, including: (a) Substantial failure to comply with these rules or with the Act; (b) Refusal by a program or employee to allow access and inspection of records by an authorized representative of the Department; (c) Fraudulent information or material misrepresentations in the application or renewal for a Certificate for Private Admission Assessment; or (d) Failure to comply with a final order of the Department imposing an administrative sanction. (2) The Department may require a certified program to be involved in a process of corrective action and may provide the program a specified amount of time to meet the standards of the Act and these rules before suspension or revocation of their certification. (3) If the Department imposes an administrative sanction, it must serve notice of administrative sanction upon the program personally or by certified mail. (4) The Notice of Administrative Sanction must include: (a) Each sanction imposed; (b) A description of each violation; (c) A reference to the particular section of the statute, rule or order involved; (d) A statement of the certified program's right to a contested case hearing; (e) A statement that the Department’s files on the subject of the contested case automatically become part of the contested case record upon default for the purpose of proving a prima facie case; and (f) A statement that the notice becomes a final order upon default if the program fails to request a hearing within the specified time. (5) If an administrative sanction is imposed it must be preceded by a hearing if the program requests the hearing in writing within 60 days after receipt of the notice. All hearings must be conducted according to the applicable provisions of ORS 183.310 to 183.550. (6) If a program fails to request the hearing within the 60 days, the notice of administrative sanction will become a final order of the Department in accordance with ORS 183.310. Statutory/Other Authority: ORS 410.535 Statutes/Other Implemented: ORS 410.505 - 410.545 History: SPD 30-2004, f. 8-27-04, cert. ef. 9-1-04 SSD 3-1991, f. & cert. ef. 2-1-91
411-071-0105 Civil Penalties (1) Civil penalties, not to exceed $5,000, may be assessed to nursing facilities for violation of the Act or these rules, and must be imposed in the manner provided in ORS 441.705 to 441.745. (2) Any civil penalty imposed must become due and payable when the nursing facility incurring the penalty receives a notice in writing from the Department. The notice must be sent by registered or certified mail and shall include: (a) A reference to the particular sections of the Act involved; (b) A short and plain statement of the matters asserted or charged; (c) A statement of the amount of the penalty or penalties imposed; and (d) A statement of the right to request a hearing. (3) The facility to which the notice is addressed will have ten days from the date of mailing in which to make written application for a hearing. (4) All hearings must be conducted according to the applicable provisions of ORS 183.310 to 183.550. (5) If the nursing facility fails to request a hearing within the time specified, or if the facility is found to be in violation of ORS 410.540 or these rules, an order may be entered assessing a civil penalty. (6) Unless the penalty is paid within ten days after the date the order becomes final, the order constitutes a judgement and may be filed in accordance with ORS 183.413 to 183.470. Execution may be issued upon the order in the same manner as upon a judgement of a court of record. (7) Judicial review of civil penalties imposed must be as provided in ORS 183.480, except that the court may, in its discretion, reduce the amount of the penalty. (8) All penalties recovered under ORS 410.505 to 410.545 must be paid into the State Treasury and credited to the General Fund. Statutory/Other Authority: ORS 410.535 Statutes/Other Implemented: ORS 410.505 - 410.545 History: SPD 30-2004, f. 8-27-04, cert. ef. 9-1-04 SSD 3-1991, f. & cert. ef. 2-1-91
411-071-0110 Responsibility of Certified Programs A certified program performing an admission assessment must: (1) Transmit a copy of the assessment form to the nursing facility upon admission of the individual; (2) Send a copy of the completed assessment form to the Department; (3) Provide a copy of the assessment form to the individual who receives the assessment or exemption; and (4) Refer to either Seniors and People with Disabilities of the Department of Human Services, or Mental Health and Addiction Services of Health Services, for an individual subject to the Level II pre-admission screening evaluation required by the federal pre-admission screening requirements. Statutory/Other Authority: ORS 410.070 Statutes/Other Implemented: ORS 410.530 & 410.535 History: SPD 30-2004, f. 8-27-04, cert. ef. 9-1-04 SDSD 1-1998, f. 1-30-98, cert. ef. 2-1-98 SSD 1-1994, f. 3-11-94, cert. ef. 3-15-94 SSD 3-1991, f. & cert. ef. 2-1-91
411-071-0115 Responsibility of Adult Foster Homes, Residential Care Facilities and Non-Medicaid Nursing Facilities (1) On or after February 1, 1991, except as provided in section (2) of this rule, prior to admission to an adult foster home, a residential care facility, or a non-Medicaid certified nursing facility, the facility must advise the individual seeking admission of the availability of admission assessment services at their own expense. (2) An individual who is entering a non-Medicaid certified nursing facility that is part of a closed system continuing care retirement community shall be exempt from this requirement. (3) The facility must certify on a form provided by the Department that the individual has been so advised. The facility shall maintain a copy of the form in the individual's client record and make a copy available to the Area Agency on Aging/Seniors and People with Disabilities unit upon request. (4) Adult foster homes, residential care facilities and non-Medicaid nursing facilities who fail to comply with these rules will be subject to sanctions against their license as specified in: ORS 443.705 to 443.820 and OAR 411, division 50, for adult foster homes; ORS 443.400 to 443.455 and OAR 411, division 54, for residential care facilities; and ORS Chapter 441 and OAR 411, divisions 85–89, for non-Medicaid nursing facilities. Statutory/Other Authority: ORS 410.505 - 410.545 Statutes/Other Implemented: ORS 410.515 & 410.540 History: SPD 30-2004, f. 8-27-04, cert. ef. 9-1-04 SSD 1-1994, f. 3-11-94, cert. ef. 3-15-94 SSD 3-1991, f. & cert. ef. 2-1-91
411-073-0000 Purpose The purpose of these rules is to define the process through which the Seniors and People with Disabilities Division may impose remedies against Medicaid-only certified nursing facilities when such facilities fail to comply with the federal statute or Code of Federal Regulations (CFR). These rules are issued pursuant to 42 CFR 488.400 et seq. and apply to all surveys performed on or after September 1, 1995. The remedies are designed to correct nonconforming conditions and to ensure prompt facility compliance with the CFR and consistency in facility performance. The federal Health Care Financing Administration (HCFA) is responsible for implementing similar remedies for Medicare and Medicare/Medicaid (dually certified) facilities. Statutory/Other Authority: ORS 410.070 Statutes/Other Implemented: ORS 410.070 History: SSD 11-1995, f. 9-29-95, cert. ef. 10-1-95
411-073-0020 Statement of Deficiencies/Plan of Correction (1) Statement of Deficiencies. When the Division identifies a facility’s failure to comply with federal regulations, the Division shall document such failure(s) on a federal Statement of Deficiencies form HCFA 2567. The Statement of Deficiencies shall be accompanied by a notification of the informal dispute resolution process. (2) Plan of Correction. (a) When Required. Except as otherwise provided by this rule, the facility receiving a Statement of Deficiencies shall develop, submit to the Division, and begin implementing a Plan of Correction (POC) within 10 days of receiving the Statement of Deficiencies. A Plan of Correction is required regardless of whether remedies are imposed. A Plan of Correction is not an enforcement remedy. (b) Form. The Plan shall be documented on the federal Statement of Deficiencies form HCFA 2567. (c) Isolated Deficiencies. A Plan of Correction is not required if the Division declares on the Statement of Deficiencies that “the deficiencies are isolated, no harm has resulted, and there is no potential for anything more than minimal harm.” (d) Approval. All Plans of Correction submitted by a facility are subject to approval by the Division. A facility shall not delay implementation of its Plan of Correction because it has not yet received approval from the Division. If approval is denied, the facility shall have five days to submit an acceptable revised Plan of Correction. [ED. NOTE: Forms referenced are available from the agency.] Statutory/Other Authority: ORS 410.070 Statutes/Other Implemented: ORS 410.070 History: SSD 11-1995, f. 9-29-95, cert. ef. 10-1-95
411-073-0030 Remedies Generally (1) Remedied Available. In addition to the remedies which may be provided pursuant to OAR 411, division 89, one or more of the remedies listed in these rules (OAR 411-073) may be imposed by the Division when a facility fails to comply with federal statute or regulations. The remedy(s) issued by the Division may be based upon findings of noncompliance with one or more requirements of participation. (2) Factors To Be Considered. In order to determine the seriousness of the deficiency, and the appropriate remedy to pursue, if any, the Division: (a) Shall consider whether a facility’s noncompliance resulted in harm, whether there was a potential for harm, the degree of actual and/or potential harm, and/or whether there was immediate jeopardy; (b) Shall consider whether the deficiencies are isolated, constitute a pattern, or are widespread; and (c) May consider the relationship of the deficiency to other deficiencies and the facility’s history of noncompliance. (3) Appeal. When the Division issues a remedy, the facility may dispute the findings of noncompliance upon which the remedy is based. Except as otherwise provided by these rules, the Division’s choice of remedy, including the factors considered by the Division in selecting the remedy, is not subject to appeal. The process for disputing a Division finding is found in OAR 411-073-0120 and 411-073-0140. Statutory/Other Authority: ORS 410.070 Statutes/Other Implemented: ORS 410.070 History: SSD 11-1995, f. 9-29-95, cert. ef. 10-1-95
411-073-0040 Categories of Remedies (1) Category 1 Remedies. Category 1 remedies include one or more of the following: (a) Directed Plan of Correction (including directed inservice training); (b) Directed inservice training; or (c) Division monitoring (state monitoring). (2) Category 2 Remedies. Category 2 remedies include one or more of the following: (a) Denial of Medicaid payment for new admissions; (b) Denial of Medicaid payment for all residents if imposed on the state by HCFA; or (c) Civil money penalties of $50 to $3,000 per day. (3) Category 3 Remedies. Category 3 remedies include one or more of the following: (a) Temporary management; (b) Civil money penalties of $3,050 to $10,000 per day; (c) Closure of the facility in emergency situations and/or transfer of residents; or (d) Termination of the Division’s Provider Agreement. (4) Medicaid Remedies Matrix. Exhibit 1, “Medicaid Remedies Matrix,” defines the circumstances under which the different categories of remedies shall or may be issued. Exhibit 1 is incorporated and made a part of these rules. (a) Once a particular level of noncompliance is determined by the Division, the matrix indicates which category of remedies are required and optional. (b) Required Remedies. When a category or remedy is “required,” the Division shall impose one or more of the remedies in that category and/or initiate termination of certification. (c) Optional Remedies. When a category is optional, the Division may impose one or more of the remedies under that category in addition to the required remedies. Statutory/Other Authority: ORS 410.070 Statutes/Other Implemented: ORS 410.070 History: SSD 11-1995, f. 9-29-95, cert. ef. 10-1-95
411-073-0050 Directed Plan of Correction (1) When Imposed. The Division may require a Directed Plan of Correction: (a) When isolated deficiencies or a pattern of deficiencies result in actual harm or a potential for more than minimal harm, including immediate jeopardy; or (b) In any other situation under which a category 1 remedy is required or optional in Exhibit 1. (2) Required Action. Facilities shall adopt and implement a Directed Plan of Correction prescribed in part or in whole by the Division when required by the Division. The Directed Plan of Correction may include, but is not limited to, outside consultation, training for facility staff and employment of additional staff. Statutory/Other Authority: ORS 410.070 Statutes/Other Implemented: ORS 410.070 History: SSD 11-1995, f. 9-29-95, cert. ef. 10-1-95
411-073-0060 Directed Inservice Training (1) When Imposed. The Division may require Directed Inservice Training: (a) When isolated deficiencies or a pattern of deficiencies result in actual harm or a potential for more than minimal harm, including immediate jeopardy; or (b) In any other situation under which a category 1 remedy is required or optional in Exhibit 1. [Exhibit not included. See ED. NOTE.] (2) Required Action. Facilities shall implement a Directed Inservice Training prescribed by the Division when required by the Division. [ED. NOTE: Exhibits referenced are available from the agency.] Statutory/Other Authority: ORS 410.070 Statutes/Other Implemented: ORS 410.070 History: SSD 11-1995, f. 9-29-95, cert. ef. 10-1-95
411-073-0070 Monitoring by the State (1) When Imposed. The Division may initiate state monitoring under these rules: (a) When a facility is not in substantial compliance with one or more requirements of participation and is in the process of correcting deficiencies; (b) When a facility has corrected deficiencies and verification of continued substantial compliance is needed; (c) When the Division has reason to question the substantial compliance of the facility with one or more requirements of participation; (d) When a facility has been cited with substandard quality of care deficiencies on the last three consecutive standard surveys; or (e) In any other situation under which a category 1 remedy is required or optional in Exhibit 73-1. [Exhibit not included. See ED. NOTE.] (2) Required Action. (a) Reports. Monitors shall prepare written reports at the request of the Division describing facility progress toward correcting deficiencies. Monitors may request written information on facility progress to be prepared and submitted by facility staff. (b) Access to facility. Monitors shall have the same access to residents, staff and documentation as inspectors/surveyors under OAR 411-089-0010. (c) Monitors. The monitor(s) shall not: (A) Be an employee of the facility; (B) Serve as a consultant to the facility; or (C) Have an immediate family member be a resident of the facility. [ED NOTE: Exhibits referenced are available from the agency.] Statutory/Other Authority: ORS 410.070 Statutes/Other Implemented: ORS 410.070 History: SSD 11-1995, f. 9-29-95, cert. ef. 10-1-95
411-073-0080 Denial of Payment for New Admissions (1) When Imposed. The Division may deny payment for new Medicaid admissions: (a) When there are widespread deficiencies constituting no actual harm, but with a potential for more than minimal harm; (b) When there is at least one deficiency constituting actual harm to a resident; (c) When the Division finds that the facility is not in substantial compliance three months after the last day of a survey in which the facility was found to not be in substantial compliance; (d) When the Division finds substandard quality of care on the last three consecutive standard surveys; (e) When there is immediate jeopardy; or (f) In any other situation under which a category 2 remedy is required or optional in Exhibit 1. [Exhibit not included. See ED. NOTE.] (2) Required Action. When the Division determines that there is cause pursuant to section (1) of this rule, the Division shall deny payment for new Medicaid admissions. (3) Resumption of Payment. The Division may resume payment for new admissions when the facility achieves substantial compliance and is capable of remaining in substantial compliance as determined by HCFA or the Division. [ED. NOTE: Exhibits referenced are available from the agency.] Statutory/Other Authority: ORS 410.070 Statutes/Other Implemented: ORS 410.070 History: SSD 11-1995, f. 9-29-95, cert. ef. 10-1-95
411-073-0090 Civil Money Penalties (1) When Imposed. The Division may impose a civil money penalty for each day a facility is or was not in substantial compliance with one or more requirements of participation. The penalty may be imposed in any situation under which a category 2 or 3 remedy is required or optional in Exhibit 1. (2) Required Action. (a) Amount. (A) Except as otherwise provided by this rule, if deficiencies do not constitute immediate jeopardy but cause actual harm or have potential of causing more than minimal harm, the penalty shall be an amount not less than $50 nor more than $3,000 per day of violation (amounts set in $50 increments). (B) If deficiencies constitute immediate jeopardy, the penalty shall be an amount not less than $3,050 nor more than $10,000 per day of violation (amounts set in $50 increments). (C) Except as otherwise provided by this rule, if deficiencies constituting immediate jeopardy are resolved and immediate jeopardy is removed but noncompliance continues, the daily penalty shall be reduced to an amount not less than $50 nor more than $3,000, as determined by the Division. (D) If deficiencies not constituting immediate jeopardy become more serious and immediate jeopardy exists, the daily penalty shall be increased to an amount not less than $3,050 nor more than $10,000, as determined by the Division. (E) If the Division determines a facility is not complying with a requirement of participation and a civil money penalty was imposed during or subsequent to the previous standard survey for deficiencies within the same requirement of participation, the Division shall issue another civil money penalty for a higher amount. Penalties for such repeat deficiencies may exceed the range established by paragraphs (2)(a)(A) and (C) of this rule. (F) The Division shall discontinue accrual of the civil money penalty on the day the Provider Agreement is terminated or on the day the Division determines substantial compliance was achieved, whichever is sooner. (b) Factors to Consider. In setting the amount of the civil money penalty within the ranges established by subsection (2)(a) of this rule, the Division shall consider: (A) The facility’s noncompliance history; (B) The facility’s financial condition (the facility shall be responsible for supplying the Division with financial information if the facility believes its financial condition should be a mitigating factor); (C) The factors described in section (2) of OAR 411-073-0030; and (D) The facility’s degree of culpability including, but not limited to, neglect, indifference, or disregard to resident care, comfort, health and safety. The absence of culpability is not a mitigating circumstance in reducing the amount of the civil money penalty. Statutory/Other Authority: ORS 410.070 Statutes/Other Implemented: ORS 410.070 History: SSD 11-1995, f. 9-29-95, cert. ef. 10-1-95