411-089-0030 Civil Penalties (1) For purposes of imposing civil penalties, facilities licensed under ORS 441.015 are considered to be long-term care facilities subject to ORS 441.705 to 441.745. (2) For purposes of this rule: (a)"Resident rights" means that each resident must be assured the same civil and human rights accorded to other citizens as described in OAR 411-085-0310 through 411-085-0350. (b) "Harm" means a measurable negative impact to a resident’s physical, mental, financial, or emotional well-being. (c) "Minor harm" means harm resulting in no more than temporary physical, mental, or emotional discomfort or pain without loss of function, or in financial loss of less than $1,000. (d) "Moderate harm" means harm resulting in temporary loss of physical, mental, or emotional function, or in financial loss of $1,000 or more, but less than $5,000. (e) "Serious harm" means harm resulting in long-term or permanent loss of physical, mental, or emotional function, or in financial loss of $5,000 or more. (f) "Financial loss" means loss of resident property or money as a result of financial exploitation, as defined in ORS 124.050. Financial loss does not include loss of resident property or money that results from action or inaction of an individual not employed or contracted with the facility, or that arises from the action or inaction of an individual employed or contracted with the facility if the action or inaction occurs while the individual is not performing employment or contractual duties. (3) CIVIL PENALTIES REQUIRING REPEAT VIOLATIONS. Violation of any Department rule is subject to a civil penalty under the following circumstances: (a) Such violation is determined to exist on two consecutive surveys, inspections, or visits; and (b) The Department prescribed a reasonable time for elimination of the violation at the time of, or subsequent to, the first citation. (4) The Director shall assess the severity of a violation using the following criteria: (a) Level 1 - is a violation that results in no actual harm or in potential for only minor harm. (b) Level 2 - is a violation that results in minor harm or potential for moderate harm. (c) Level 3 - is a violation that results in moderate harm or potential for serious harm. (d) Level 4 - is a violation that results in serious harm or death. (5) The Director shall assess the scope of a violation using the following criteria: (a) An isolated violation occurs when one or a very limited number of residents or employees are affected or a very limited area or number of locations within a facility are affected. (b) A pattern violation occurs when more than a very limited number of residents or employees are affected, or the situation has occurred in more than a limited number of locations but the locations are not dispersed throughout the facility. (c) A widespread violation occurs when the problems causing the deficiency are pervasive and affect many locations throughout the facility or represent a systemic failure that affected, or has the potential to affect, a large portion or all of the residents or employees. (6) Determining Civil Penalties. (a) When the Director is considering imposition of a civil penalty under ORS 443.455(2)(a), ORS 441.710, or Or Laws 2017, ch 679, § 4 on a nursing facility the Director shall comply with the requirements of this section. (b) When imposing a civil penalty on a facility pursuant to this section, the Director shall consider: (A) Any prior violations of laws or rules pertaining to the facility and, as a mitigating factor, whether violations were incurred under prior ownership or management of the facility. (B)The financial benefits, if any, realized by the facility as a result of the violation. (C) The facility’s past history of correcting violations and preventing the reoccurrence of violations. (D)The severity and scope of the violation. (7) Civil penalty amounts. (a) The Director may impose civil penalties as follows: (A) For a Level 1 violation, the Director may not impose a civil penalty. (B) For a Level 2 violation, the Director may impose a penalty in an amount no less than $250 per violation, not to exceed $500 per violation. (C) For a Level 3 violation, the Director may impose a civil penalty in an amount no less than $500 per violation, not to exceed $1,500 per violation. (D) For a Level 4 violation, the Director may impose a civil penalty in an amount no less than $1,500 per violation, not to exceed $2,500 per violation. (E) For a failure to report abuse of a resident to DHS as required by state law, the Director may impose a civil penalty in an amount of no more than $1,000 per violation. (b) The penalties imposed under paragraph (a)(A) to (D) of this section may not exceed $20,000 in the aggregate for violations occurring in a single facility within any 90-day period. (c) In imposing civil penalties under this section, the Director may take into account the scope of the violation. (8) Additional Civil Penalties. The Department shall impose a civil penalty of not less than $2,500 and not more than $15,000 for each occurrence of substantiated abuse that resulted in the death, serious injury, rape, or sexual abuse of a resident. The civil penalty may not exceed $40,000 for all violations occurring in a single facility within any 90-day period. (a) To impose this civil penalty, the Department must establish all of the following: (A) The abuse arose from deliberate, or other than accidental action or inaction; (B) The conduct resulting in the abuse was likely to cause a negative outcome by a person with a duty of care toward a resident of a facility; and (C) The abuse resulted in the serious injury, rape, sexual abuse, or death of a resident. (b) For purposes of this civil penalty, the following definitions apply: (A) "Negative Outcome" includes serious injury, rape, sexual abuse, or death. (B) "Serious injury" means a physical injury that creates a substantial risk of death or that causes serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ. (C) "Rape" means rape in the first degree as defined in ORS 163.375, rape in the second degree as defined in ORS 163.365, and rape in the third degree as defined in ORS 163.355. (D) "Sexual Abuse" means any form of sexual contact between an employee of a residential care facility or a person providing services in the facility and a resident of that facility, including, but not limited to: (i) Sodomy. (ii) Sexual coercion. (iii) Taking sexually explicit photographs. (iv) Sexual harassment. (9) ADMINISTRATOR SANCTIONS - NURSING FACILITY CLOSURES. Any individual who is or was the administrator of a facility and fails or failed to comply with the requirements at OAR 411-085-0025(2)(d)(e)(f)(h), OAR 411-085-0025(3)(a), or OAR 411-088-0070(1)(g), (3)(d), or (4): (a) Is subject to a civil monetary penalty as follows: (A) A minimum of $500 for the first offense; (B) A minimum of $1,500 for the second offense; and (C) A minimum of $3,000 for the third and subsequent offenses. (b) May be subject to exclusion from participation in any Federal health care program as defined in section 1128B(f) of the Patient Protection and Affordable Care Act; and (c) Is subject to any other penalties that may be prescribed by law. (10) A notice of civil penalty shall be sent by registered or certified mail and shall include: (a) A reference to the specific sections of the statute, rule, standard, or order 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. (d) A statement of the party's right to request a hearing. (e) A description of specific remediation the facility must make in order to achieve substantial compliance. (f) A statement specifying the amount of time for the elimination of the violation. (A) The time specified shall not exceed 30 calendar days after the first notice of a violation; or (B) In cases where the violation requires more than 30 days to correct, a reasonable time shall be specified in a plan of correction, as found acceptable by the Director. (11) For a level 2 or level 3 violation, the Department shall hold in abeyance the penalty proposed for the period of time specified in the Notice pursuant to subsection (10)(f) above. (12) Hearing Requests. The person to whom the notice is addressed shall have 10 calendar days from the date specified in the Notice pursuant to subsection (10)(f) above to make written application for a hearing before the Department. (13) All hearings shall be conducted pursuant to the applicable provisions of ORS chapter 183. (14) If the person notified fails to request a hearing within the time specified in the notice, an order may be entered by the Department assessing a civil penalty. (15) If, after a hearing, the Department prevails, an order may be entered by the Department assessing a civil penalty. (16) A civil penalty imposed by the Department shall be remitted or reduced in a manner consistent with the public health and safety, as follows: (a) The Department shall reduce the penalty by not less than 25 percent if the facility self-reports abuse that results in less than serious harm. (b) The Department shall withdraw some or all of the penalty if the facility achieves substantial compliance for a level 2 or 3 violation. (17) If the order is not appealed, the amount of the penalty is payable within 10 calendar days after the order is entered. If the order is appealed and is sustained, the amount of the penalty is payable within 10 calendar days after the court decision. The order, if not appealed or sustained on appeal, shall constitute a judgment and may be filed in accordance with the provisions of ORS 18.005 to 18.428. Execution may be issued upon the order in the same manner as execution upon a judgment of a court of record. (18) A violation of any general order or final order pertaining to a nursing facility issued by the Department, other than a Level 1 violation, is subject to a civil penalty. (19) Judicial review of civil penalties imposed under ORS 441.710 shall be as provided under ORS 183.480, except the court may, in its discretion, reduce the amount of the penalty. (20) PAYMENT TO BE CONSIDERED ADMISSION OF VIOLATION. Unless the Department agrees otherwise, for purposes of history of the facility, any payment of a civil penalty is treated by the Department as a violation of the statutes or rules alleged in the civil penalty notice for which the civil penalty was paid. (21) All penalties recovered are deposited in the Quality Care Fund. Statutory/Other Authority: ORS 441.615, 441.637, 441.710, 441.715 & 441.990 Statutes/Other Implemented: ORS 410.070, 441.055, 441.615, 441.637, 441.715 & 441.990 History: APD 15-2018, amend filed 06/27/2018, effective 06/29/2018 APD 36-2017, temporary amend filed 12/31/2017, effective 01/01/2018 through 06/29/2018 APD 4-2016, f. 3-15-16, cert. ef. 4-1-16 APD 13-2015, f. 6-24-15, cert. ef. 6-28-15 APD 51-2014(Temp), f. 12-31-14, cert. ef. 1-1-15 thru 6-29-15 APD 5-2014, f. 3-31-14, cert. ef. 4-1-14 SPD 11-2010, f. 6-30-10, cert. ef. 7-1-10 SPD 24-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10 SSD 1-1995, f. 1-30-95, cert. ef. 2-1-95 SSD 8-1993, f. & cert. ef. 10-1-93 SSD 19-1990, f. 8-29-90, cert. ef. 10-1-90