Or. Admin. Code § 309-035-0110

Current through Register Vol. 63, No. 12, December 1, 2024

Section 309-035-0110 - Required Home-like Qualities

This rule becomes effective July 1, 2016, and enforceable pursuant to OAR 309-035-0115 (17).

(1) A program, except for a SRTF, must have all of the following qualities:

(a) The setting is integrated in and supports the individual's same degree of access to the greater community as individuals' not receiving HCBS including opportunities for an individual to:

(A) Seek employment and work in competitive integrated employment settings:

(i) For which an individual is compensated at a rate that:

(l) Is not less than the higher of the rate specified in federal, state, or local minimum wage law;

(ll) Is not less than the customary rate paid by the employer for the same or similar work performed by other employees who are not persons with disabilities and who are similarly situated in similar occupations by the same employer and who have similar training, experience, and skills; or

(lll) In the case of an individual who is self-employed, yields an income that is comparable to the income received by other individuals who are not individuals with disabilities and who are self-employed in similar occupations or on similar tasks and who have similar training, experience, and skills.

(ii) For which an individual is eligible for the level of benefits provided to other employees;

(iii) At a location where the individual interacts with other individuals who are not individuals with disabilities. This does not include supervisory personnel or individuals providing services to the individual to the same extent as individuals without disabilities and who are in comparable positions who interact with others; and

(iv) That present opportunities for advancement similar to those for other employees who are not individuals with disabilities and who have similar positions.

(B) Engage in greater community life;

(C) Control personal resources; and

(D) Receive services in the greater community.

(b) The program is selected by an individual or the individual's legal representative from among available setting options for which the individual meets medical necessity criteria including non-disability specific settings and an option for a private unit in a residential setting. The setting options shall be:

(A) Identified and documented in the individuals' person-centered service plan;

(B) Based on the individual's needs and preference; and

(C) Based on the individual's available resources for room and board.

(c) The program ensures individual rights of privacy, dignity, respect, and freedom from coercion and restraint;

(d) The program optimizes, but does not regiment, individual initiative, autonomy, self-direction, and independence in making life choices including but not limited to daily activities, physical environment, and with whom to interact; and

(e) The program facilitates individual choice regarding services and supports and individual choice as to who provides the services and supports.

(2) The individual or the individual's legal representative shall have the opportunity to select from among available setting options including non-disability specific settings and an option for a private unit in a setting. The setting options shall be:

(a) Identified and documented in the person-centered service plan for the individual;

(b) Based on the individual's needs and preferences; and

(c) Based on the individual's available resources for room and board.

(3) The provider shall take reasonable steps to ensure that the program maintains the qualities identified in sections (2) and (3) of this rule. Failure to take reasonable steps may include but is not limited to:

(a) Failure to maintain a copy of the person-centered service plan at the setting;

(b) Failure to cooperate or provide necessary information to the person-centered planning coordinator; or

(c) Failure to attend or schedule a person-centered planning meeting where applicable.

(4) A program shall maintain the following:

(a) The setting shall be physically accessible to an individual;

(b) The provider shall provide the individual a unit of specific physical place that the individual may own, rent, or occupy under a legally enforceable Residency Agreement;

(c) The provider shall provide and include in the Residency Agreement that the individual has, at a minimum, the same responsibilities and protections from an eviction that a tenant has under the landlord-tenant law of Oregon and other applicable laws or rules of the county, city, or other designated entity. For a setting in which landlord-tenant laws do not apply, the Residency Agreement shall provide substantially equivalent protections for the individual and address eviction and appeal processes. The eviction and appeal processes shall be substantially equivalent to the processes provided under landlord-tenant laws;

(d) The provider shall provide each individual with privacy in their own unit;

(e) The provider shall maintain units with entrance doors lockable by the individual. The program shall ensure that only the individual, the individual's roommate, where applicable, and only appropriate staff as described in the individual's person-centered plan have keys to access the unit;

(f) The provider shall ensure that individuals sharing units have a choice of roommates;

(g) The provider shall provide and include in the Residency Agreement that individuals have the freedom to decorate and furnish their own unit;

(h) The provider shall allow each individual to have visitors of their choosing at any time;

(i) The provider shall ensure each individual has the freedom and support to control their own schedule and activities; and

(j) The provider shall ensure each individual has the freedom and support to have access to food at any time.

(5) A SRTF is not required to maintain the qualities or meet the obligations identified in section (4)(d)(e)(f)(h)(i) of this rule if limited by the indivual's legal representative or supervisory entity. The provider is required to seek an individually-based limitation to comply with these rules.

(6) A provider is not required to maintain the qualities or meet the obligations identified in section (4) (b) or (c) of this rule when providing crisis-respite services to an individual. The provider is not required to seek an individually-based limitation for such an individual to comply with these rules.

(7) A supervisory entity or provider may modify or limit the rights identified in sections (1), (2), and 4(b) through (i) of this rule when providing services to an individual, who is placed with the provider by a court, OHA, CMHP or PSRB order under ORS chapters 161 or 426, as appropriate for the individual's needs or as limited by the individual's legal representative When an activity is restricted by the supervisory entity, the conditional release evaluation or other documents describing the limitations, must be included in the application for an individually-based limitation and incorporated in the individual's Person-Centered Service Plan and included in the Residential Care Plan.

(8) When a provider is unable to meet a qualities outlined under section (4)(e) through (4)(j) of this rule due to threats to the health and safety of the individual or others, the provider may seek an individually-based limitation with the consent of the individual or the individual's legal representative. The provider may not apply an individually-based limitation until the limitation is approved, consented and documented as outlined in OAR 309-035-0195.

Or. Admin. Code § 309-035-0110

MHD 9-1984(Temp), f. & ef. 12-10-84; MHD 9-1985, f. & ef. 6-7-85; MHD 4-1998, f. 5-21-98, cert. ef. 6-1-98; MHD 4-2005, f. & cert. ef. 4-1-05; MHS 4-2008, f. & cert. ef. 6-12-08; MHS 13-2016(Temp), f. 9-6-16, cert. ef. 9-7-16 thru 3-3-17; MHS 2-2017(Temp), f. 3-3-17, cert. ef. 3-4-17 thru 8-30-17; MHS 5-2017, f. & cert. ef. 6/8/2017; BHS 41-2023, temporary amend filed 10/12/2023, effective 10/15/2023 through 4/11/2024; BHS 6-2024, amend filed 04/11/2024, effective 4/11/2024

Statutory/Other Authority: ORS 413.042 & 443.450

Statutes/Other Implemented: ORS 413.032, 443.400 - 443.465 & 443.991