justicedao/ipfs_state_laws huggingface dataset:
411-360-0010 Statement of Purpose (1) The rules in OAR chapter 411, division 360 prescribe the standards and procedures for the licensure of adult foster homes for individuals with intellectual or developmental disabilities (AFH-DD). (2) These rules incorporate the provisions for home and community-based services (HCBS) and settings set forth in OAR chapter 411, division 004 to ensure individuals with intellectual or developmental disabilities receive services in settings that are integrated in and support the same degree of access to the greater community as people not receiving HCBS. (a) An AFH-DD provider initially licensed on or after January 1, 2016 must meet the requirements in OAR chapter 411, division 004 prior to being licensed. (b) An AFH-DD provider licensed prior to January 1, 2016 must make measurable progress toward compliance with the rules in OAR chapter 411, division 004 and be in full compliance by September 1, 2018. (3) An AFH-DD facilitates individual choice regarding services and supports, and who provides the services and supports, through a cooperative relationship between the AFH-DD provider, the individual, the legal or designated representative of the individual (if applicable), and the Community Developmental Disability Program. (4) An AFH-DD protects and encourages the independence, dignity, choice, and decision making of the individual while addressing the needs of the individual in a manner that supports and enables the individual to achieve optimum physical, mental, and social well-being and independence. Statutory/Other Authority: ORS 409.050, 410.070, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.765, 443.767, 443.775 & 443.790 Statutes/Other Implemented: ORS 443.705-825 History: APD 21-2016, f. & cert. ef. 6-29-16 APD 30-2015(Temp), f. 12-31-15, cert. ef. 1-1-16 thru 6-28-16 SPD 34-2013, f. & cert. ef. 9-27-13 SPD 13-2010, f. 6-30-10, cert. ef. 7-1-10 SPD 3-2005, f. 1-10-05, cert. ef 2-1-05
411-360-0030 Variance (1) A provider or applicant may apply to the Department for a variance from a provision of these rules. The provider must justify to the Department that such a variance does not jeopardize the health, safety, or welfare of the individuals or violate state or federal laws. If the variance applies to the care and services for an individual, the provider must provide evidence that the variance is consistent with the currently approved ISP for the individual. (2) A variance is granted in writing on a Department-approved form. A variance granted to one AFH-DD provider does not constitute a precedent for any other AFH-DD provider. A variance is specific to a licensed site. Statutory/Other Authority: ORS 409.050, 410.070, 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 47-2014, f. 12-26-14, cert. ef. 12-28-14 SPD 34-2013, f. & cert. ef. 9-27-13 SPD 13-2010, f. 6-30-10, cert. ef. 7-1-10 SPD 3-2005 f. 1-10-05 cert. ef. 2-1-05
411-360-0060 Capacity (1) The maximum capacity of an AFH-DD is limited to five individuals who require care and services who are unrelated to the provider by blood, marriage, or adoption. (2) The number of individuals permitted to reside in an AFH-DD is determined by the ability of the caregiver to meet the care, service, and support needs of the individuals, fire safety standards, physical structure standards, and the standards of these rules. (a) Determination of maximum capacity includes consideration of total household composition including all children, adult relatives, and older adults. (b) In determining maximum capacity, consideration is given to whether children over the age of 5 have a bedroom separate from their parents and the number and age of children or others that reside in the AFH-DD requiring care. (3) Children under the age of 10 living in the AFH-DD and individuals requiring relief care, attendant care, or skills training services are included in the licensed capacity of the AFH-DD. (4) A provider may only exceed the licensed capacity of the AFH-DD by one or more individuals if: (a) Approved by the Department; (b) There is adequate bedroom and living space available in the AFH-DD for the individuals receiving services; and (c) The total capacity does not exceed five. Statutory/Other Authority: ORS 409.050, 410.070, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.765, 443.767, 443.775 & 443.790 Statutes/Other Implemented: ORS 443.705-825 History: APD 21-2016, f. & cert. ef. 6-29-16 APD 30-2015(Temp), f. 12-31-15, cert. ef. 1-1-16 thru 6-28-16 SPD 34-2013, f. & cert. ef. 9-27-13 SPD 13-2010, f. 6-30-10, cert. ef. 7-1-10 SPD 3-2005, f. 1-10-05, cert. ef 2-1-05
411-360-0220 Complaints (1) The Department furnishes each AFH-DD with a Complaint Notice. The Complaint Notice must be posted in a conspicuous location in the AFH-DD, stating the telephone number of the Department and the CDDP, and the procedure for making complaints. (2) Any person who believes these rules have been violated may file a complaint with the Department or CDDP. (3) The Department investigates any complaint regarding the AFH-DD. (4) Copies of all AFH-DD complaints are maintained by the Department. All complaints and action taken on the complaint, indexed by the name of the provider, must: (a) Be placed into the public file at the Department. (Information regarding the investigation of the complaint may not be filed in the public file until the investigation has been completed); (b) Protect the privacy of the complainant and the individual; and (c) Treat the names of the witnesses as confidential information. (5) Providers who receive substantiated complaints pertaining to the health, safety, or welfare of individuals may have their AFH-DD licenses suspended, revoked, or not renewed, or may have conditions placed on the AFH-DD license. (6) The provider, resident manager, or caregiver must not retaliate in any way against any individual after a complaint has been filed with the Department. Retaliation may include but is not limited to: (a) Increasing charges; (b) Decreasing care or services, rights, or privileges; (c) Threatening to increase charges or decrease care or services, rights, or privileges; (d) Taking or threatening to take any action to coerce or compel the individual to leave the AFH-DD; or (e) Abusing, harassing, or threatening to harass or abuse an individual in any manner. (7) A complainant, witness, or caregiver of an AFH-DD must not be subject to retaliation by a provider or resident manager for making a report, being interviewed about a complaint, or being a witness. Retaliation may include but is not limited to caregiver dismissal or harassment or restriction of access to either the AFH-DD or an individual. (8) Any person has the right to inspect and receive a photocopy of the public complaint files, including protective services files, maintained by the Department upon request subject to the Department's procedures, ORS 192.410 through 192.505, and photocopy charges for public record requests subject to federal and state confidentiality laws. Statutory/Other Authority: ORS 409.050, 410.070, 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: SPD 34-2013, f. & cert. ef. 9-27-13 SPD 13-2010, f. 6-30-10, cert. ef. 7-1-10 SPD 3-2005, f. 1-10-05, cert. ef. 2-1-05
411-360-0230 Procedures for Correction of Violations (1) If an inspection or investigation results in a violation of these rules other than abuse, the Department notifies the provider in writing of violations of these rules. (2) The notice of violation includes the following: (a) A description of each conduct or condition that constitutes a violation; (b) Each rule that has been violated; and (c) A specific timeframe for correction, not to exceed 30 calendar days after receipt of the notice of violations. (A) The Department may approve a reasonable timeframe in excess of 30 calendar days if correction of the violation within that timeframe is not practical. (B) If the licensee requests more than 30 calendar days to correct the violation, such time must be specified in the licensee’s plan of correction and must be found acceptable by the Department. (3) The provider must notify the Department in writing of the correction of violations no later than the date specified in the notice of violation. (4) The Department may conduct a re-inspection of the AFH-DD after the date the Department receives the report of compliance or after the date by which violations must be corrected as specified in the notice of violation. (5) For violations that present an imminent danger to the health, safety, or welfare of individuals, the licensee must correct the violations and abate the conditions no later than 24 hours after receipt of the notice of violation. The Department inspects the AFH-DD after the 24-hour period to determine if the violations are corrected as specified in the notice of violation. (6) If individuals are in immediate danger, the AFH-DD license may be suspended immediately and arrangements made to move the individuals. (7) If, after inspection of the AFH-DD, the violations have not been corrected by the date specified in the notice of violation or if the Department has not received a report of compliance, the Department may institute one or more of the following actions: (a) Imposition of an administrative sanction; or (b) Filing of a criminal complaint. Statutory/Other Authority: ORS 409.050, 410.070, 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: SPD 34-2013, f. & cert. ef. 9-27-13 SPD 13-2010, f. 6-30-10, cert. ef. 7-1-10 SPD 3-2005, f. 1-10-05, cert. ef. 2-1-05
411-360-0240 Administrative Sanction (1) An administrative sanction may be imposed for non-compliance with these rules. An administrative sanction may include one or more of the following actions: (a) Attachment of conditions to an AFH-DD license; (b) Civil penalties; (c) Denial, suspension, revocation, or non-renewal of the AFH-DD license; or (d) Reclassification of the AFH-DD license. (2) If the Department imposes an administrative sanction, the notice of administrative sanction is served upon the licensee either personally or by certified mail. (3) The notice of administrative sanction includes: (a) Each sanction imposed; (b) A reference to the particular sections of the statute, rule, standard, or order involved; (c) A short and plain statement of each condition or act that constitutes a violation; (d) A statement of the administrative sanction imposed; (e) A statement of the licensee's right to a contested case hearing; (f) A statement of the authority and jurisdiction under which the contested case hearing is to be held; (g) 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 (h) A statement that the Department’s notice of administrative sanction serves as the final order by default if the licensee fails to request a contested case hearing within the specified time or fails to appear for a contested case hearing. (4) The licensee must comply with the final order of the Department. Statutory/Other Authority: ORS 409.050, 410.070, 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: SPD 34-2013, f. & cert. ef. 9-27-13 SPD 13-2010, f. 6-30-10, cert. ef. 7-1-10 SPD 3-2005, f. 1-10-05, cert. ef. 2-1-05
411-360-0275 Suspension (1) The Department may suspend a license for reasons of abuse, neglect, or exploitation of an individual if: (a) An immediate threat to the health, safety, or welfare of any individual exists; (b) There is evidence of abuse, neglect, or exploitation of any individual; (c) The AFH-DD is not operated in compliance with ORS 443.705 to 443.825 or the rules adopted there under; or (d) The provider has been found to have been convicted of a crime that would have resulted in a denied fitness determination of a background check. (2) The licensee may request an administrative review of the decision of the Department to suspend an AFH-DD license. The Department must receive a written request for an administrative review within10 days from the receipt of the notice and order of suspension. (a) Within 10 days from the receipt of the request for an administrative review from the licensee, all material relating to the allegation of abuse, neglect, or exploitation and the suspension of the AFH-DD license, including any written documentation submitted by the licensee within that timeframe, is reviewed by the Director of the Department. Based on review of the material, the Director determines whether to sustain the decision to suspend the AFH-DD license. (b) A suspension is rescinded immediately if the Director does not sustain the decision to suspend the AFH-DD license. (c) The decision of the Director is subject to a hearing under ORS Chapter 183 if requested within 90 days from the date of the decision of the administrative review. (3) In the event the license to maintain an AFH-DD is ordered immediately suspended, the Department withholds service payments until the license is reinstated. (4) For the protection of the individuals, the Department arranges for the individuals in the AFH-DD to move when the AFH-DD license is suspended. Statutory/Other Authority: ORS 409.050, 410.070, 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 47-2014, f. 12-26-14, cert. ef. 12-28-14 APD 29-2014(Temp), f. & cert. ef. 7-1-14 thru 12-28-14 SPD 34-2013, f. & cert. ef. 9-27-13 SPD 13-2010, f. 6-30-10, cert. ef. 7-1-10 SPD 3-2005, f. 1-10-05, cert. ef 2-1-05
411-360-0280 Criminal Penalties (1) Operating an AFH-DD without a license is punishable as a Class C misdemeanor pursuant to ORS 443.991(5). (2) Refusing to allow the Department access and inspection to the AFH-DD or access to the AFH-DD regarding fire safety by state and local fire inspector, is punishable as a Class B misdemeanor pursuant ORS 443.991(6). Statutory/Other Authority: ORS 409.050, 410.070, 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: SPD 34-2013, f. & cert. ef. 9-27-13 SPD 13-2010, f. 6-30-10, cert. ef. 7-1-10 SPD 3-2005, f. 1-10-05, cert. ef 2-1-05
411-360-0290 Enjoinment of Operation The Department may commence an action to enjoin operation of an AFH pursuant to ORS 443.775(8): (1) When an AFH-DD is operated without a valid license; or (2) After notice of revocation or suspension has been given, a reasonable time for placement of individuals in other homes has been allowed, and such placement has not been accomplished. Statutory/Other Authority: ORS 409.050, 410.070, 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: SPD 34-2013, f. & cert. ef. 9-27-13 SPD 13-2010, f. 6-30-10, cert. ef. 7-1-10 SPD 3-2005, f. 1-10-05, cert. ef 2-1-05
411-360-0300 Zoning An AFH-DD is a residential use of property for zoning purposes. An AFH-DD is a permitted use in any residential zone, including a residential zone that allows a single family dwelling, and in any commercial zone that allows a single-family dwelling. No city or county may impose any zoning requirement on the establishment and maintenance of an AFH-DD in these zones that is more restrictive than a single-family dwelling in the same zone. Statutory/Other Authority: ORS 409.050, 410.070, 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: SPD 34-2013, f. & cert. ef. 9-27-13 SPD 13-2010, f. 6-30-10, cert. ef. 7-1-10 SPD 3-2005, f. 1-10-05, cert. ef 2-1-05
411-360-0310 Public Information (1) The Department maintains current information on all licensed AFH-DD's and makes that information available to prospective individuals, the individuals' families, and other interested members of the public. (2) The information includes: (a) The location of the AFH-DD; (b) A brief description of the physical characteristics of the AFH-DD; (c) The name and mailing address of the provider; (d) The license classification of the AFH-DD and the date the provider was first licensed to operate the AFH-DD; (e) The date of the last inspection of the AFH-DD, the name and telephone number of the office that performed the inspection, and a summary of the findings of the inspection; (f) Copies of all complaint investigations involving the AFH-DD, together with the findings of and actions taken by the Department; (g) Any license conditions, suspensions, denials, revocations, civil penalties, exceptions, or other actions taken by the Department involving the AFH-DD; and (h) Whether care and services are provided primarily by the provider, a resident manager, or other arrangement. (3) Any list of adult foster homes maintained or distributed by the Department includes notification to the reader of the availability of public records concerning the AFH-DD's. Statutory/Other Authority: ORS 409.050, 410.070, 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: SPD 34-2013, f. & cert. ef. 9-27-13 SPD 13-2010, f. 6-30-10, cert. ef. 7-1-10 SPD 3-2005, f. 1-10-05, cert. ef 2-1-05
411-370-0040 Variances (1) The Department may grant a variance to these rules based upon a demonstration by the provider that an alternative method or different approach provides equal or greater effectiveness and does not adversely impact the welfare, health, safety, or rights of individuals or violate state or federal laws. (2) The provider requesting a variance must submit, in writing, an application on a Department approved form that contains the following: (a) The section of the rule from which the variance is sought; (b) The reason for the proposed variance; and (c) The alternative practice, service, method, concept, or procedure proposed. (3) The Department shall approve or deny the request for a variance. In reviewing the variance request, the Department may seek input or information from the Department's designees, including CDDPs and brokerages. (4) The Department's decision shall be sent to the provider and to all relevant Department programs or offices within 30 calendar days of the receipt of the variance request. (5) The provider may appeal the denial of a variance request by sending a written request for review to the Administrator, whose decision is final. (6) The Department shall determine the duration of the variance. (7) The provider may implement a variance only after written approval from the Department. Statutory/Other Authority: ORS 409.050, 411.060, 410.070 & 430.640 Statutes/Other Implemented: ORS 427.005, 427.007, 430.215, 430.610-695 & 443.400–443.455 History: APD 25-2016, f. & cert. ef. 6-29-16 SPD 16-2011, f. & cert. ef. 7-1-11
411-375-0000 Purpose (1) The rules in OAR chapter 411, division 375 establish the standards and procedures governing independent providers and the fiscal services provided on behalf of individuals who employ or contract with an independent provider. (2) Independent providers provide home and community-based waiver, state plan, and general fund services to individuals eligible for developmental disabilities services and receiving supports authorized by a case management entity. Statutory/Other Authority: ORS 409.050 Statutes/Other Implemented: ORS 410.600, 410.606-619 & 427.007 History: APD 29-2016, f. & cert. ef. 6-29-16 APD 48-2014, f. 12-26-14, cert. ef. 12-28-14 APD 30-2014(Temp), f. & cert. ef. 7-1-14 thru 12-28-14
411-375-0045 Overpayments (1) An overpayment is any payment made by the Department or case management entity to an independent provider that is more than the independent provider is permitted to receive under DHS rules. An independent provider may only receive payment for a number of hours that are actually provided and do not exceed the amount stated in a Service Agreement. (2) Overpayments are categorized as follows: (a) ADMINISTRATIVE ERROR. The case management entity failed to authorize, compute, or process the correct amount of service hours or wage rate. (b) INDEPENDENT PROVIDER ERROR. The Department overpays the independent provider due to a misunderstanding or unintentional error. (c) FRAUD. "Fraud" means taking actions that may result in the independent provider receiving a benefit in excess of the correct amount whether by intentional deception, misrepresentation, or failure to account for payments or money received. "Fraud" also means spending payments or money the independent provider was not entitled to and any act that constitutes fraud under applicable federal or state law (including 42 CFR 455.2). The Department of Justice, Medicaid Fraud Unit determines when a Medicaid fraud allegation is pursued for prosecution. (3) The Department may recover an overpayment established by a judgment in a state or federal court, by the Department or another administrative agency in a contested case proceeding, or by a signed document in which the person acknowledges the overpayment and waives the right to a contested case hearing. (4) Overpayments for personal support workers are recovered as follows: (a) Overpayments are collected prior to garnishments, such as child support, Internal Revenue Service back taxes, or educational loans. (b) Overpayments due to administrative error or personal support worker error are recouped at no more than five percent of the total for the hours paid until repaid in full. (c) When a fraud overpayment has occurred, the Department shall determine the manner and the amount to be recovered. (d) When a provider is no longer employed as a personal support worker, any remaining overpayment is deducted from the final check to the provider. The provider is responsible for repaying the amount in full when the final check is insufficient to cover the remaining overpayment. (5) Overpayments for independent providers who are not personal support workers are recovered as described in OAR chapter 407, division 120. Statutory/Other Authority: ORS 409.050 Statutes/Other Implemented: ORS 410.600, 410.606-619 & 427.007 History: APD 2-2021, minor correction filed 01/12/2021, effective 01/12/2021 Renumbered from 411-375-0060 by APD 29-2016, f. & cert. ef. 6-29-16 APD 48-2014, f. 12-26-14, cert. ef. 12-28-14 APD 30-2014(Temp), f. & cert. ef. 7-1-14 thru 12-28-14
411-380-0010 Statement of Purpose (1) The rules in OAR chapter 411, division 380 establish standards and procedures for the provision of direct nursing services for adults with intellectual or developmental disabilities and complex health management support needs. These rules define eligibility for services, prescribe Medicaid provider enrollment conditions, and enact service and documentation requirements. (2) Direct nursing services provide medical tasks to adults with intellectual or developmental disabilities and complex health management support needs in order to live as independently as possible in their home and community. Statutory/Other Authority: ORS 409.050 & 413.085 Statutes/Other Implemented: ORS 409.050 & 413.085 History: APD 14-2016, f. 6-28-16, cert. ef. 6-29-16 APD 28-2015(Temp), f. 12-31-15, cert. ef. 1-1-16 thru 6-28-16