Or. Admin. Code § 411-031-0050

Current through Register Vol. 63, No. 11, November 1, 2024

Section 411-031-0050 - Termination, Administrative Review, and Hearing Rights

(1) EXCLUSIONS TO APPEAL AND HEARING RIGHTS. The following are excluded from the administrative review and administrative hearing rights process described in this rule:

(a) Homecare workers who failed to complete a background recheck;

(b) Homecare workers who are not currently providing services to any consumers and whose provider enrollment is inactivated while an Adult Protective Services investigation is being completed;

(c) Homecare workers who have been excluded by Health and Human Services, Office of Inspector General, from participation in Medicaid, Medicare, or any other federal programs;

(d) Terminations or renewal denials based on a background check. The homecare worker has the right to a hearing in accordance with OAR 407-007-0200 to 407-007-0370. Homecare workers receive notices from the background check unit and will not receive notices from the Department;

(e) Homecare workers who were inactivated based on OAR 411-031-0040(8)(b)(c); or

(f) Homecare workers who are denied a provider enrollment number at the time of initial application.

(2) REFERRAL OF POTENTIAL VIOLATIONS TO APD CENTRAL OFFICE. When an APD or AAA office has reason to believe a homecare worker has committed one or more of the violations listed in section (3) of this rule, the APD or AAA office shall refer the alleged violation to APD central office using the Department-approved referral form. The homecare worker who allegedly committed the violation shall be provided a copy of the completed referral form.

(3) VIOLATIONS RESULTING IN DENIAL OF RENEWAL, PROPOSED TERMINATION OR IMMEDIATE SUPSENSION OF PROVIDER ENROLLMENT. APD central office may terminate and immediately suspend a homecare worker's provider enrollment when a homecare worker --

(a) Has violated the requirement to maintain a drug-free workplace;

(b) Has an unacceptable background check;

(c) Demonstrates a lack of the skills, knowledge, and ability to adequately or safely perform the required work which includes the inability to comply with Electronic Visit Verification through the Oregon Provider Time Capture Direct Care Innovations system in OAR 411-031-0040(10)(b) and (c);

(d) Is substantiated for committing any type of abuse including but not limited to child abuse, elder abuse or abuse of a person with a disability;

(e) Commits fiscal improprieties;

(f) Fails to provide services as required which includes providing the required service needs of a consumer-employer;

(g) Demonstrates a lack of the ability or willingness to maintain consumer-employer confidentiality;

(h) Creates an unwelcome nuisance to the workplace;

(i) Fails to adhere to an established work schedule;

(j) Has been sanctioned or convicted of a criminal offense related to that individual's involvement in any program established under any public assistance program;

(k) Fails to perform the duties of a Mandatory Abuse Reporter. Homecare workers are mandatory abuse reporters and are required by state abuse statutes to report alleged abuse, ORS 419B.005(s);

(l) Has been excluded by the Health and Human Services, Office of Inspector General, from participation in Medicaid, Medicare, and all other federal health care programs;

(m) Fails to provide a tax identification number or Social Security number that matches the homecare worker's legal name, as verified by the Internal Revenue Service or Social Security Administration;

(n) Fails to inform the Department and their consumer-employer within 14 days of being arrested, cited, or convicted of any potentially disqualifying crime listed in OAR 125-007-0270;

(o) Exerts undue influence over a consumer-employer;

(p) Falsifies information on an application or background check;

(q) Is terminated as a Personal Support Worker through the Office of Developmental Disabilities Services or Oregon Health Authority Health Systems Division and has an active Homecare Worker provider number; APD reserves the right to terminate the HCW's provider number based on the other agencies termination;

(r) Charges a consumer- employer or relative or representative of the consumer-employer, for any services regardless of if they are paid by the Department or by personal funds;

(s) Fails to meet the mandatory training and competency evaluation requirements in OAR 418-020-0035;

(t) Has had a provider number terminated by another state within the United States;

(u) Has been excluded by the Centers for Medicare and Medicaid Services to work as a Medicaid provider;

(v) Is an employee of Aging and People with Disabilities, Area Agency on Aging, the Office of Administrative Hearings, Oregon Health Authority Health Systems Division, Oregon Department of Human Services Background Check Unit, Oregon Eligibility Partnership (OEP), Oregon Department of Human Services Self Sufficiency Program (SSP), the Oregon Home Care Commission, or a provider to a participant of the independent choices program, as defined in OAR 411-030-0100.

(w) Fails to complete a background check when requested by the Department;

(x) Fails to complete training as required based on a previous Administrative Review of the homecare worker's provider enrollment number;

(y) Fails to adhere to the hourly cap after warning has been issued by the Department; or

(z) Knowingly engages in activities that may result in exposure of an individual to the Coronavirus (COVID-19) or other communicable diseases;

(A) Activities include:

(i) Failure to take reasonable measures to prevent transmission of COVID-19 or other communicable diseases as directed by a health care provider or the Local Public Health Authority (LPHA).

(ii) Having in-person contact with the individual with whom they do not reside while the homecare worker has been:

(I) Exposed or diagnosed with COVID-19 or other communicable diseases by a health care provider or the LPHA;

(II) Advised to self-quarantine by their health care provider or by LPHA;

(III) Subject to a quarantine or isolation order; or

(IV) Symptomatic as defined by Centers for Disease Control and Prevention (CDC).

(B) The homecare worker provider enrollment may be immediately terminated in the following circumstances:

(i) Returns to direct consumer contact sooner than 14 calendar days after the homecare workers has been:

(I) Diagnosed with COVID-19, presumed to have COVID-19 or other communicable diseases by a health care provider or the LPHA;

(II) Advised by a health care provider to self-quarantine; or

(III) Subject to a quarantine or isolation order by a health care provider or the LPHA.

(ii) Returns to direct consumer contact sooner than 72 hours after the resolution of COVID-19 or other communicable disease symptom(s).

(4) ADMINISTRATIVE REVIEW PROCESS FOR VIOLATIONS RESULTING IN DENIALS OF RENEWALS AND PROPOSED TERMINATION OFPROVIDER ENROLLMENT NUMBERS. Except in instances where an alleged violation presents imminent threat to the health, safety, or welfare of any individual resulting in an immediate suspension, upon receiving notification and evidence of an alleged violation listed in section (3) (a) through (3)(z) of this rule, APD central office shall complete an administrative review within 30 days.

(a) The administrative review provides an opportunity for APD central office to review the local office's referral and decide whether to terminate a homecare worker's provider enrollment.

(b) The administrative review may include the provision of new evidence, either by the homecare worker or by the APD or AAA office, which APD central office may consider in reaching its decision.

(c) As a part of the administrative review, the homecare worker and a representative may take part in an administrative review conference with APD central office.

(d) After an administrative review conference, APD central office will conclude the administrative review within 10-business days. The administrative review process is concluded when APD central office sends the homecare worker a written notice. If, based on the administrative review, APD central office determines a homecare worker did not violate one or more of the subsections of section (3) of this rule, APD central office shall send a written notice of this determination to the APD or AAA office and to the homecare worker.

(e) Upon agreement of both parties, an extension of the 10-business day deadline may occur.

(5) NOTICE OF PROPOSED DENIAL OF RENEWAL ENROLLMENT NUMBER. When APD central office proposes to deny a homecare worker the ability to renew a provider enrollment number, the homecare worker shall be provided with a written Notice of Proposed Denial of Renewal of Provider Enrollment Number. The notice must:

(a) Include a short and plain explanation of the reason for the proposed denial of renewal;

(b) Indicate the date the Notice of Proposed denial of renewal of Homecare Worker Provider Enrollment was sent to the homecare worker;

(c) Cite the rules supporting the decision to issue the Notice of Proposed denial of renewal of Homecare Worker Provider Enrollment;

(d) List the effective date of the proposed denial of a homecare workers ability to renew a provider number; and

(e) Inform the homecare worker of the homecare worker's appeal rights, including:

(A) The right to legal representation;

(B) How to request a contested case hearing; and

(C) The right to continue working until a final order resolves the contested case unless their provider number has become inactive for reasons listed in OAR 411-031-0040(8)(c).

(f) For denials based on substantiated protective service allegations, complainants, witnesses, the name of the alleged victim and protected health information are not to be disclosed in or with the notice.

(6) NOTICE OF PROPOSED TERMINATION OF HOMECARE WORKER PROVIDER ENROLLMENT. When APD central office proposes to terminate a homecare worker's provider enrollment, the homecare worker shall be provided with a written Notice of Proposed Termination of the Homecare Worker's Provider Enrollment. The notice must:

(a) Include a short and plain explanation of the reason for the proposed termination;

(b) Indicate the date the Notice of Proposed Termination of Homecare Worker Provider Enrollment was sent to the homecare worker;

(c) Cite the rules that support APD central office's decision to issue the Notice of Proposed Termination of Homecare Worker Provider Enrollment;

(d) List the effective date of the Notice of Proposed Termination of Homecare Worker Provider Enrollment; and

(e) Inform the homecare worker of the homecare worker's appeal rights, including:

(A) The right to legal representation;

(B) How to request a contested case hearing; and

(C) The right to continue working until a final order resolves the contested case.

(f) For terminations based on substantiated protective service allegations, complainants, witnesses, the name of the alleged victim and protected health information are not to be disclosed in or with the notice.

(7) NOTICE OF IMMEDIATE SUSPENSION OF HOMECARE WORKER PROVIDER ENROLLMENT. APD central office shall issue a Notice of Immediate Suspension of Homecare Worker Provider Enrollment if an immediate threat to the health, safety or welfare of any individual exists. A Notice and Order of Immediate Suspension of Homecare Worker Provider Enrollment must:

(a) Include a short and plain explanation of the reason for the immediate suspension;

(b) Indicate the date the Notice and Order of Immediate Suspension of Homecare Worker Provider Enrollment was served on the homecare worker and the date of the Notice;

(c) Cite the rules that support APD central office's decision to issue the Notice and Order of Immediate Suspension of Homecare Worker Provider Enrollment;

(d) List the effective date of the Notice and Order of Immediate Suspension of Homecare Worker Provider Enrollment; and

(e) Inform the homecare worker of the homecare worker's appeal rights, including:

(A) The right to legal representation;

(B) How to request a contested case hearing; and

(C) The homecare worker has a right to a hearing to be scheduled as soon as practicable to contest the immediate suspension order.

(D) If no hearing request is postmarked within 90 days of the postmarked date of the Notice and Order of Immediate Suspension the homecare worker is deemed to have waived the right to a contested case hearing on the Notice and Order of Immediate Suspension.

(8) CONTESTED CASE HEARINGS. A homecare worker sent a Notice of Denial of Renewal Enrollment, Notice of Proposed Termination of Homecare Worker Provider Enrollment or an Immediate Suspension of Homecare Worker Provider Enrollment has a right to request a contested case hearing pursuant to ORS 183.

(a) The homecare worker's request for an administrative hearing must:

(A) Be in writing;

(B) Be postmarked or emailed no later than 60 days from the date of the Notice of Proposed Denial of Renewal Provider Enrollment Number.

(C) Be postmarked or emailed no later than 60 days from the date of the Notice of Proposed Termination of Homecare Worker Provider Enrollment.

(D) Be postmarked or emailed no later than 90 days from the date the Notice and Order of Immediate Suspension of Homecare Worker Provider Enrollment was sent; and

(E) Specify the issues or decisions being contested.

(b) The Department shall refer the homecare worker's administrative hearing request to the Office of Administrative Hearings as described in OAR chapter 137, division 003.

(c) When the Department refers an administrative hearing request, under these rules, to the Office of Administrative Hearings, the Department shall indicate on the referral whether the Department is authorizing a proposed order, a proposed and final order, or a final order.

(d) A homecare worker who completes an administrative hearing request may take part in an informal conference with a Department hearing representative before the administrative hearing.

(e) No additional hearing rights have been granted to homecare workers by this rule other than the right to a hearing on the Notice of Department's proposed denial of re-enrollment, proposed termination of provider enrollment or immediate suspension of the homecare worker's provider enrollment number.

(9) TERMINATION IF NO CONTESTED CASE HEARING REQUEST FILED.

(a) When a homecare worker is sent a Notice of Proposed Denial of Renewal Provider Enrollment and does not request a contested case hearing postmarked or emailed within 60 days from the date of the Notice of Proposed Denial of Renewal Provider Enrollment the provider enrollment will be terminated. APD central office will send the homecare worker a Final Order by Default in accordance with OAR 137-003-0670.

(b) When a homecare worker is sent a Notice of Proposed Termination of Provider Enrollment and the homecare worker does not request a contested case hearing postmarked or emailed within 60 days from the date of the Notice of Proposed Termination of Provider Enrollment, the homecare worker's provider enrollment will be terminated. APD central office will send the homecare worker a Final Order by Default in accordance with OAR 137-003-0670.

(c) When a homecare worker is sent a Notice and Order of Immediate Suspension of Provider Enrollment and the homecare worker does not request a contested case hearing postmarked or emailed within 90 days from the date on the Notice and Order of Immediate Suspension, the Notice and Order of Immediate Suspension of Provider Enrollment becomes the final order by default.

(10) PAYMENT SUSPENSION DUE TO FRAUD:

(a) When the Department has determined that there is a credible allegation of fraud, the Department must suspend provider payments pursuant to federal law under 42 CFR 455.23.

(b) The suspension of provider payments will remain in effect until such time as either APD or a prosecuting authority has determined that there is insufficient evidence of any alleged fraud, or any legal proceedings related to alleged fraud are completed.

(c) If it is determined that there is insufficient evidence of alleged fraud, or no legal proceedings are filed, or it has been determined that the HCW is exonerated of any wrongdoing after any legal proceedings have completed, the provider payments will resume.

(d) No back payments will be made for the time the payments were suspended.

(e) If a homecare worker is convicted, payments are permanently suspended.

Or. Admin. Code § 411-031-0050

SPD 17-2004, f. 5-28-04, cert.ef. 6-1-04; SPD 40-2004(Temp), f. 12-30-04, cert. ef. 1-1-05 thru 6-30-05; Reverted to SPD 17-2004, f. 5-28-04, cert.ef. 6-1-04; SPD 15-2005(Temp), f. & cert. ef. 11-16-05 thru 5-15-06; SPD 15-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 3-2010, f. 5-26-10, cert. ef. 5-30-10; SPD 4-2013, f. 3-25-13, cert. ef. 3-26-13; SPD 47-2013, f. 12-13-13, cert. ef. 12-15-13; APD 2-2016(Temp), f. & cert. ef. 3-2-16 thru 8-28-16; APD 6-2016(Temp), f. & cert. ef. 3-23-16 thru 8-28-16; APD 31-2016, f. 8-24-16, cert. ef. 8/28/2016; APD 1-2018, temporary amend filed 01/26/2018, effective 02/01/2018 through 07/30/2018; APD 27-2018, amend filed 07/31/2018, effective 7/31/2018; APD 3-2021, temporary amend filed 01/12/2021, effective 1/13/2021 through 7/11/2021; APD 18-2021, amend filed 06/02/2021, effective 6/7/2021; APD 3-2023, amend filed 03/01/2023, effective 3/1/2023; APD 13-2023, temporary amend filed 08/22/2023, effective 8/25/2023 through 2/20/2024; APD 4-2024, amend filed 01/29/2024, effective 2/1/2024

Statutory/Other Authority: ORS 409.050, ORS 410.070 & 410.090

Statutes/Other Implemented: ORS 410.070