Or. Admin. Code § 411-054-0110

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

Section 411-054-0110 - [Effective 12/27/2024] Conditions

(1) The Department may impose a condition on the license of a residential care or assisted living facility in response to a substantiated finding of rule violation, including, but not limited to a substantiated finding of abuse, A condition shall be imposed in response to a finding of immediate jeopardy, whether or not the finding of immediate jeopardy is substantiated at the time the license condition is imposed.

(2) The Department shall immediately remove the license condition if the finding of immediate jeopardy is not substantiated within 30 calendar days after the imposition of the license condition.

(3) Conditions that may be imposed on a licensee include, but are not limited to:

(a) Restricting the total number of residents;

(b) Restricting the number and impairment level of residents based upon the capacity of the licensee and staff to meet the health and safety needs of all residents;

(c) Requiring additional staff or staff qualifications;

(d) Requiring additional training for staff;

(e) Requiring additional documentation; or

(f) Restriction on admissions, if the Department makes a finding of immediate jeopardy that is likely to present an immediate jeopardy to future residents upon admission.

(4) IMPENDING IMPOSITION OF LICENSE CONDITION.

(a) Except where the threat to residents is so imminent that the Department determines it is not safe or practical to give the facility advance notice, the Department shall provide the licensee with a Notice of Impending Imposition of License Condition (Notice) at least 48 hours prior to issuing an Order Imposing License Condition (Order). The Notice may be provided in writing, sent by certified or registered mail to the licensee, or provided orally in person or by telephone to the licensee or to the person represented by facility staff to be in charge at the facility. When the Notice is delivered orally, the Department must subsequently provide written notice to the licensee by registered or certified mail. The Notice must:

(A) Describe the acts or omissions of the licensee that support the imposition of the license condition and the circumstances that led to the substantiated finding of a rule violation, including, but not limited to, a:

(i) Substantiated finding of abuse.

(ii) Finding of immediate jeopardy.

(B) Describe why the acts or omissions and the circumstances create a situation for which the imposition of a condition is warranted.

(C) Provide a brief statement identifying the nature of the impending condition.

(D) Provide a brief statement describing how the license condition is designed to remediate the circumstances that lead to the condition.

(E) Provide a brief statement of the requirements for withdrawal of the condition.

(F) Identify a person at the Department whom the licensee may contact and who is authorized to enter the Order or to make recommendations regarding issuance of the Order.

(G) Specify the date and time an informal conference will be held, if requested by the licensee.

(H) Specify the date and time the Order will take effect.

(b) If the threat to residents of a facility is so imminent the Department determines it is not safe or practical to give the facility advance notice of a license condition, the Department must provide the notice required under section (5)(a) within 48 hours after issuing an order imposing the license condition.

(5) INFORMAL CONFERENCE. If an informal conference is requested, the conference will be held at a location designated by the Department. If determined to be appropriate by the Department, the conference may be held by telephone.

(a) With Notice. If a Notice of Impending License Condition is issued, the licensee must be provided with an opportunity for an informal conference to object to the Department's proposed action before the license condition is scheduled to take effect. The Order Imposing License Condition may be issued at any time after the informal conference.

(b) Without Notice. If an Order Imposing License Condition is issued without a prior Notice of Impending License Condition, the licensee may request an immediate informal conference to object to the Department's action.

(6) ORDER IMPOSING LICENSE CONDITION.

(a) When an Order Imposing License Condition (Order) is issued, the Department must serve the Order to the licensee either personally or by registered or certified mail.

(b) The Order must include the following statements:

(A) The authority under which the condition is being issued.

(B) A reference to the specific sections of the statute and administrative rules involved.

(C) The effective date of the condition.

(D) A short and plain statement of the matters asserted or charged.

(E) The specific terms of the license condition.

(F) A specific description of how the scope and manner of the license condition is designed to remediate the findings that lead to the license condition.

(G) A specific description of the requirements for withdrawal of the license condition.

(H) Statement of the licensee's right to request a hearing.

(I) That the licensee may elect to be represented by counsel and to respond and present evidence and argument on all issues involved. If the licensee is to be represented by counsel, the licensee must notify the Department.

(J) That, if a request for hearing is not received by the Department within 21 calendar days from the date of the Order, the licensee has waived the right to a hearing under ORS chapter 183.

(K) Findings of specific acts or omissions of the licensee that are grounds for the license condition, and the reasons the acts or omissions create a situation for which the imposition of a license condition is warranted.

(L) That the Department may combine the hearing on the Order with any other Department proceeding affecting the licensee. The procedures for the combined proceeding must be those applicable to the other proceedings affecting the license.

(7) A licensee who has been ordered to restrict admissions to a facility must immediately post a "Restriction of Admissions Notice" that is provided by the Department, on both the inside and outside faces of each door of the facility through which any person enters or exits a facility. The notices must not be removed, altered or obscured until the Department has lifted the restriction or the restriction is automatically removed pursuant to subsection (10)(d) of this rule.

(8) ACUITY-BASED STAFFING TOOL.

(a) The Department of Human Services shall develop or obtain, maintain, and use, in collaboration with residential care facilities, an objective, technology-based, acuity-based staffing tool. The Department may use the tool to:

(A) Evaluate whether a residential care facility has qualified awake caregivers sufficient in number to meet the 24-hour scheduled and unscheduled needs of each resident;

(B) Assess the number of direct care staff hours required by a particular residential care facility to meet each resident's scheduled and unscheduled needs.

(b) The acuity-based staffing tool shall be made available to residential care facilities to:

(A) Enable the residential care facilities to assess their staffing needs and determine whether they have a sufficient number of qualified awake caregivers to meet the 24-hour scheduled and unscheduled needs of each resident;

(B) Communicate the required staffing needs and each residential care facility's staffing plan to residents, their family members, and other persons; and

(C) Demonstrate to the Department that the residential care facility's staffing plan meets the 24-hour scheduled and unscheduled needs of each resident.

(c) The Department is not required to use the tool described in this section in every circumstance in which residential care facility staffing is evaluated, but the Department must use the tool in collaboration with the facility if the Department is considering imposing a staffing requirement on a facility as part of a licensing condition and the Department and the facility are not in agreement about whether staffing meets the residents' scheduled and unscheduled needs or the staffing standards proposed by the Department.

(9) HEARING.

(a) Right to Hearing. If the Department imposes an Order, the licensee is entitled to a contested case hearing pursuant to ORS chapter 183.

(b) Hearing Request. The Department must receive the licensee's request for a hearing within 21 calendar days of the date of Order. If a request for hearing is not received by the Department within 21 calendar days of the date of the Order, the licensee will have waived the right to a hearing under ORS chapter 183.

(c) A licensee's request for a hearing does not delay enforcement.

(d) Date of Hearing. When a timely request for hearing is received, the hearing shall be held as soon as practical.

(e) Consolidation. If a request for hearing is received on an Order, and a subsequent Order is issued, the Department may consolidate the Orders into a single contested case hearing.

(10) REQUEST FOR REINSPECTION OR REEVALUATION.

(a) Assertion of substantial compliance. Following the Order on a facility, the Department shall:

(A) Within 15 business days of receiving the facility's written assertion of substantial compliance and request for reinspection, the Department shall reinspect or reevaluate the facility to determine if the facility has achieved substantial compliance.

(B) Notify the facility by telephone or electronic means of the findings of the reinspection or reevaluation within five business days after completion of the reinspection or reevaluation.

(C) Issue a written report to the facility within 30 business days after the reinspection or reevaluation notifying the facility of the Department's determinations.

(b) If the Department finds the facility has achieved substantial compliance and that systems are in place to ensure similar deficiencies do not reoccur, the Department shall withdraw the Order.

(c) If after reinspection or reevaluation, the Department determines the violation continues to exist, the Department may not withdraw the Order and is not obligated to reinspect or reevaluate the facility again for at least 45 business days after the first reinspection or reevaluation.

(A) The Department shall provide the facility notice of the decision not to withdraw the Order in writing.

(B) The notice shall inform the facility of the right to a contested case hearing pursuant to ORS chapter 183.

(d) If the Department does not meet the requirements of this section, a license condition is automatically removed on the date the Department failed to meet the requirements of this section, unless the Director extends the applicable period for no more than 15 business days. The Director may not delegate the power to make a determination regarding an extension under this paragraph.

(e) Nothing in this section limits the Department's authority to visit or inspect the facility at any time.

(11) EXCEPTIONS TO ORDER IMPOSING LICENSE CONDITION. When a restriction of admissions is in effect pursuant to an Order, the Department, in its sole discretion, may authorize the facility to admit new residents for whom the Department determines that alternate placement is not feasible.

(12) Conditions may be imposed for the duration of the licensure period (two years) or limited to some other shorter period of time. If the condition corresponds to the licensing period, the reasons for the condition will be considered at the time of renewal to determine if the conditions are still appropriate. The effective date and expiration date of the condition will be indicated on the attachment to the license.

Or. Admin. Code § 411-054-0110

SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07; APD 35-2017, temporary amend filed 12/30/2017, effective 01/01/2018 through 06/29/2018; APD 19-2018, amend filed 06/29/2018, effective 6/29/2018; APD 55-2021, amend filed 12/09/2021, effective 12/15/2021; APD 29-2024, temporary amend filed 06/21/2024, effective 7/1/2024 through 12/27/2024

Statutory/Other Authority: ORS 183, 410.070 & 443.450

Statutes/Other Implemented: ORS 183, 443.400 - 443.455 & 443.991