Or. Admin. Code § 309-035-0115

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

Section 309-035-0115 - Licensing

(1) The Division shall license a program that meets the definition of a RTF or RTH and demonstrates compliance with these and all applicable laws and rules. No person or governmental unit acting individually or jointly with any other person or governmental unit shall establish, maintain, manage, or operate a program without a license issued by the Division.

(2) When a program serves or seeks to serve another category of individuals in addition to adults with a mental health disorder, the directors of the Authority and the Department shall determine the department responsible for licensure.

(3) An application for a license must be accompanied by the required fee and submitted to the Division using the forms or format required by the Division. The following information must be included in the application:

(a) Full and complete information as to the identity and financial interest of each individual, including stockholders, having a direct or indirect ownership interest of five percent or more in the program and all officers and directors in the case of a program operated or owned by a corporation;

(b) Name and resume of the program administrator;

(c) Physical address of the setting and mailing address;

(d) Maximum number of individuals to be served at any one time, their age range and evacuation capability;

(e) Proposed annual budget identifying sources of revenue and expenses;

(f) Signed criminal record authorizations for all individuals involved in the operation of the program who contacts the individuals, including but not limited to caregivers;

(g) Written background information pertaining to any current or previous licensure or certification by a state agency, including those licenses or certificates granted to a business or person affiliated with the business, including:

(A) Copies of all current licenses or certificates;

(B) Documentation showing the final disposition of any suspension, denial, revocation, or other disciplinary actions initiated on any current or previous license or certificate, including settlement agreements, where applicable; and

(C) Documentation of any substantiated allegations of abuse or neglect pertaining to the applicant or anyone employed by or contracted with the applicant.

(h) A complete set of policies and procedures;

(i) Setting plans and specifications; and

(j) Other information the Division may reasonably require.

(4) A complete set of plans and specifications must be submitted to the Division at the time of initial application whenever a new structure or addition to an existing structure is proposed or when significant alterations to an existing facility are proposed. Plans shall meet the following criteria:

(a) Plans shall be prepared in accordance with the Building Code and as outlined in OAR 309-035-0140;

(b) Plans shall be to scale and sufficiently complete to allow full review for compliance with these rules; and

(c) Plans shall bear the stamp of an Oregon licensed architect or engineer when required by the Building Code.

(5) Prior to approval of a license for a new or renovated setting, the applicant shall submit the following to the Division:

(a) One copy of written approval to occupy the setting issued by the city or county building codes authority having jurisdiction;

(b) One copy of the fire inspection report from the State Fire Marshal or local jurisdiction indicating that the setting complies with the Fire Code;

(c) When the setting is not served by an approved municipal water system, one copy of the documentation indicating that the state or county health agency having jurisdiction has tested and certified safe the water supply in accordance with OAR chapter 333, Public Health Division rules to public water systems;

(d) When the setting is not connected to an approved municipal sewer system, one copy of the sewer or septic system approval from the Department of Environmental Quality or local jurisdiction.

(6) The following fees shall be submitted with an initial or renewal application:

(a) The RTF license application fee for initial or renewal licensing is $60. No fee is required in the case of a governmentally operated RTF;

(b) The RTH license application fee for initial or renewal licensing is $30. No fee is required in the case of a governmentally operated RTH.

(7) A license is renewable upon submission of a renewal application in the form or format required by the Division and a non-refundable fee as set out in section (6), except that no fee shall be required of a governmentally operated program:

(a) Filing of an application for renewal 60 days before the date of expiration extends the effective date of the current license until the Division takes action upon the renewal application;

(b) The Division shall deny renewal of a license if the program is not in substantial compliance with these rules or if the State Fire Marshal or authorized representative has given notice of noncompliance.

(8) Upon receipt of an application and fee, the Division shall conduct an application review. Initial action by the Division on the application shall begin within 30 days of receipt of all application materials. The review shall:

(a) Include a complete review of application materials;

(b) Determine whether the applicant meets the qualifications outlined in ORS 443.420 including:

(A) Demonstrates an understanding and acceptance of these rules;

(B) Is mentally and physically capable of providing services for individuals;

(C) Employs or utilizes only persons whose presence does not jeopardize the health, safety, or welfare of individuals; and

(D) Provides evidence satisfactory to the Division of financial ability to comply with these rules.

(c) Include a site inspection; and

(d) Conclude with a report stating findings and a decision on licensing of the program.

(9) The Division may elect to deny an application prior to review when:

(a) The applicant has previously had any action taken on a certificate or license; or

(b) Action taken on a certificate or license includes denial, suspension, conditions, intent to revoke, or revocation by the Division, the Authority, the Oregon Department of Human Services, or any other state agency.

(c) The applicant may appeal the denial of the application by submitting a request for reconsideration in writing to the Division within 14 calendar days from receipt of the denial notice. The Division shall make a decision on the appeal within 30 days of receipt of the appeal. The decision of the Division shall be final.

(10) The provider shall submit and complete a plan of correction for each finding of noncompliance:

(a) If the findings of noncompliance substantially impact the welfare, health, and safety of individuals, the provider shall submit a plan of correction that shall be approved by the Division prior to issuance of a license. In the case of a currently operating program, the findings may result in suspension or revocation of a license;

(b) If it is determined that the findings of noncompliance do not threaten the welfare, health, or safety of individuals and the program meets other requirements of licensing, the Division may issue or renew a license with the plan of correction submitted and completed as a condition of licensing;

(c) The Division shall specify required documentation and set the timelines for the submission and completion of plans of correction in accordance with the severity of the findings;

(d) The Division shall review and evaluate each plan of correction. If the plan of correction does not adequately remedy the findings of noncompliance, the Division shall require a revised plan of correction and may apply civil penalties or deny, revoke, or suspend the license;

(e) The provider owner may appeal the finding of noncompliance or the disapproval of a plan of correction by submitting a request for reconsideration in writing to the Division. The Division shall make a decision on the appeal within 30 days of receipt of the appeal. The decision of the Division shall be final.

(11) The Division, in its discretion, may grant a variance to these rules based upon a demonstration by the applicant or provider that an alternative method or different approach provides equal or greater program effectiveness and does not adversely impact the welfare, health, or safety of individuals:

(a) The provider seeking a variance shall submit in writing an application to the Division that identifies the section of the rules from which the variance is sought, the reason for the proposed variance, the proposed alternative method or different approach, and signed documentation from the CMHP indicating approval of the proposed variance;

(b) The director or designee shall review and approve or deny the request for a variance;

(c) The Division shall notify the provider of the decision in writing within 30 days after receipt of the request. A variance may be implemented only after receipt of written approval from the Division;

(d) The provider may appeal the denial of a variance request by submitting a request for reconsideration in writing to the Division's Director. The Director shall make a decision within 30 days of receipt of the appeal. The decision of the Director shall be final; and

(e) A variance shall be reviewed by the Division at least every two years and may be revoked or suspended based upon a finding that the variance adversely impacts the welfare, health, or safety of the individuals.

(12) Upon finding that the applicant is in substantial compliance with these rules, the Division shall issue a license:

(a) The license issued shall state the name of the provider, the name of the program administrator, the address of the setting to which the license applies, the maximum number of individuals to be served at any one time and their evacuation capability, the type of program, and such other information as the Division deems necessary;

(b) A program license shall be effective for two years from the date issued unless sooner revoked or suspended; and

(c) A program license is not transferable or applicable to any setting, location, or management other than that indicated on the application and license.

(13) The license shall be valid only under the following conditions:

(a) The provider may not operate or maintain the program in combination with a nursing facility, hospital, retirement facility, or other occupancy unless licensed, maintained, and operated as a separate and distinct part. Each program shall have sleeping, dining, and living areas for use only by its own individual's caregivers and invited guests;

(b) The provider shall maintain the license posted in the setting and available for inspection at all times; and

(c) A license becomes void immediately upon suspension or revocation of the license by the Division or if the operation is discontinued by voluntary action of the provider or if there is a change of ownership.

(14) Division staff shall visit and inspect every setting at least once every two years to determine whether it is maintained and operated in accordance with these rules. The provider or applicant shall allow Division staff entry and access to the setting and individuals for the purpose of conducting the inspections:

(a) Division staff shall review methods of individual care and treatment, records, the condition of the setting and equipment, and other areas of operation;

(b) All records, unless specifically excluded by law, shall be available to the Division for review; and

(c) The State Fire Marshal or authorized representatives shall, upon request, be permitted access to the setting, fire safety equipment within the setting, safety policies and procedures, maintenance records of fire protection equipment and systems, and records demonstrating the evacuation capability of setting occupants.

(15) Incidents of alleged abuse covered by ORS 430.735 through 430.765 and reported complaints shall be investigated in accordance with OAR 943-045-0250 through 0370. The Division may delegate the investigation to a CMHP or other appropriate entity.

(16) The Division may deny, suspend, revoke or refuse to renew a license when it finds there has been substantial failure to comply with these rules or when the State Fire Marshal or authorized representative certifies that there is failure to comply with the Fire Code:

(a) In cases where there exists an imminent danger to the health or safety of an individual or the public, a license may be suspended immediately; and

(b) The revocation, suspension, or denial shall be done in accordance with ORS 443.440

(17) The provider shall report promptly to the Division any significant changes to information supplied in the application or subsequent correspondence. Changes include but are not limited to changes in the setting or program name, provider, program administrator, telephone number, and mailing address. Changes also include but are not limited to changes in the physical nature of the setting, policies and procedures, or staffing pattern when the changes are significant or impact the individual's health, safety, or well-being.

(18) Enforcement of Home and Community-Based Services and Settings Requirements:

(a) All programs licensed on or after July 1, 2016, shall be in full compliance with all regulatory requirements under these rules at the time of initial licensure;

(b) All programs licensed prior to July 1, 2016, shall come into compliance with rules as follows:

(A) All programs shall be in full compliance with these rules no later than January 1, 2017; and

(B) For the rules designated by the Division to become effective July 1, 2016, the provider shall make measureable progress towards compliance with those rules. The Division may not issue sanctions and penalties for failure to meet the rules effective July 1, 2016, or the obligations imposed by OAR Chapter 411, division 4 until January 1, 2017, if the provider is making measureable progress towards compliance.

Or. Admin. Code § 309-035-0115

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 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; MHS 11-2017, temporary amend filed 10/03/2017, effective 10/03/2017 through 03/30/2018; BHS 5-2018, amend filed 03/21/2018, effective 3/30/2018

Statutory/Other Authority: ORS 413.042, ORS 443.450 & ORS 443.420

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