Or. Admin. R. 411-323-0033

Current through Register Vol. 63, No. 6, June 1, 2024

Section 411-323-0033 - Administrative Sanctions

(1) An administrative sanction may be imposed for non-compliance with these rules, the rules in OAR chapter 411 division 004, or the corresponding program rules. An administrative sanction may be imposed immediately if necessary to protect the health and safety of an individual, otherwise, an administrative sanction shall be imposed when an agency fails to come into compliance in a time frame determined by the Department. An administrative sanction on a certificate or endorsement includes one or more of the following actions:

(a) A condition as described in section (2) of this rule.

(b) Denial or revocation of a certificate or endorsement as described in section (3) of this rule.

(c) Immediate suspension of a certificate or endorsement as described in section (4) of this rule.

(2) CONDITIONS.

(a) Conditions may be placed on an agency's certificate and any endorsements simultaneously. More than one type of condition may be placed on a certificate and any endorsements simultaneously.

(b) The Department may attach conditions to a certificate or endorsement that limit, restrict, or specify other criteria for operation of an agency.

(c) The Department may attach a condition to a certificate or endorsement upon any of the following findings including, but not limited to:

(A) Information on the application or initial inspection requires a condition to protect the health, safety, or welfare of individuals.

(B) A threat to the health, safety, or welfare of an individual exists.

(C) There is evidence of abuse, neglect, or exploitation.

(D) The agency is not being operated in compliance with these rules, the rules in OAR chapter 411, division 004, or the corresponding program rules.

(E) A failure to correct a serious violation or health and safety violation within a time frame determined by the Department after receiving a serious violation letter from the Department.

(F) Failure to resolve a violation or demonstrate the absence of a violation identified in an advisory letter.

(G) There is evidence that agency employees or the agency executive director have not completed required training.

(H) The agency employs or contracts with any program staff for whom there is substantiated evidence of abuse, neglect, or mistreatment.

(I) The agency employs or contracts with any program staff that fails to meet relevant minimum qualifications described in these rules, program rules, or other applicable law.

(J) The agency fails to fully implement an ISP or other support documents or protocols.

(K) The Department has issued the agency through two or more consecutive certification reviews substantially similar findings of non-compliance with these rules, program rules, or other applicable administrative rules, statutes, or regulations.

(L) There is a need for increased regulatory oversight of the agency.

(M) The agency fails to comply with any reporting requirements.

(N) The agency's operation varies from the business plan submitted as part of the application process.

(O) There is evidence that the agency's financial situation poses a risk that an individual may lose access to services from the agency or be unable to remain in the setting of the individual's choice.

(P) The agency delivers services in a provider owned, controlled, or operated setting and the setting is unsafe for individuals receiving services.

(d) Conditions that the Department may impose include, but are not limited to:

(A) Restricting the total number of individuals to whom an agency may deliver services.

(B) Restricting the type of support and services an agency may deliver.

(C) Requiring additional employees or employee qualifications.

(D) Requiring training for employees of the agency.

(E) Restricting an agency from allowing a person on the premises who may be a threat to the health, safety, or welfare of an individual.

(F) Requiring additional documentation or reports.

(G) Restricting enrollment of individuals to the program.

(H) Other conditions deemed necessary by the Department to ensure the health and safety of individuals and the public.

(I) Other conditions deemed necessary by the Department for the purpose of ensuring regulatory compliance with these rules or other applicable administrative rules and law.

(e) NOTICE OF CONDITIONS. The Department issues a written notice to the agency when the Department imposes conditions on the certificate or endorsement of the agency. The written notice of conditions includes the conditions imposed by the Department, the reason for the conditions, and the process to request a hearing under ORS chapter 183.

(A) Conditions take effect immediately upon issuance of the written notice of certificate conditions or at a later date as indicated on the notice and are a Final Order of the Department unless later rescinded through the hearing process.

(B) The conditions imposed remain in effect until the Department has sufficient cause to believe the situation that warranted the condition has been remedied or rescinded through the hearing process.

(f) HEARING.

(A) An agency may request a hearing in accordance with ORS chapter 183 and this rule upon receipt of written notice of certificate conditions. The request for a hearing must be in writing, and clearly identify the certificate conditions for which the agency is requesting a hearing. An agency must request a hearing within 21 calendar days from the receipt of the written notice of certificate conditions.

(B) In addition to, or in-lieu of a hearing, an agency may request an administrative review as described in section (5) of this rule. The request for an administrative review must be in writing, and clearly identify the certificate conditions for which the agency is requesting the administrative review. The administrative review does not diminish the right of the agency to a hearing.

(C) The Department shall be allowed reasonable requests for setting or postponement of any hearing to allow for the conclusion of a protective services investigation when a condition is imposed related to the protective services investigation.

(g) An agency may send a written request to the Department to remove a condition if the agency believes the situation that warranted the condition has been remedied.

(3) DENIAL OR REVOCATION.

(a) The Department may deny or revoke a certificate or endorsement when the Department finds an agency, an executive director, or any person with an ownership interest in the agency:

(A) Has been convicted of any crime that would have resulted in an unacceptable background check upon hiring or authorization of program services.

(B) Has been convicted of a crime associated with the operation of an agency or program services.

(C) Falsifies information required by the Department to be maintained or submitted regarding program services, agency finances, or funds belonging to the individuals.

(D) Has been found to have permitted, aided, or abetted any illegal act that has had significant adverse impact on individual health, safety, or welfare.

(E) Based on an evaluation of the background and operating history conducted under OAR 411-323-0030(5)(i), the applicant:

(i) Has demonstrated an inability to operate an agency under applicable rules; or

(ii) Has an association with anyone who had an ownership interest in, or was the executive director for, an agency that has had a certificate issued under these rules denied or revoked within three years preceding the submission of an application due to the abuse of an individual or failure to possess the physical or mental health, or good personal character necessary. An application shall be denied unless the applicant demonstrates to the Department by clear and convincing evidence that the applicant, or the person associated with the applicant, does not pose a threat to any individual. An applicant is "associated with" a person as described above if the applicant receives financial backing from the person for the benefit of the agency or is a family member of the applicant.

(F) Has had a previous certificate issued under these rules denied or revoked, or voluntarily surrendered while corrective action was pending, within three years preceding the submission of an application.

(G) Has had any certification or license suspended or revoked, or voluntarily surrendered while corrective action was pending, by ODDS, the Oregon Health Authority, the Oregon Department of Human Services, or any other similar state agency outside of Oregon within the previous ten years from the date of the application.

(H) Has surrendered a certificate or endorsement following the service of a notice by the Department that would have resulted in a revocation of a certificate or endorsement under this rule.

(I) Has been found to have willfully submitted incomplete, inaccurate, or untruthful information on an application for a certificate or endorsement.

(J) Has been sanctioned by the Oregon Health Authority or is excluded, terminated, or suspended from the Medicaid program in Oregon.

(K) Has been found responsible for fraud or abuse by a state or federal court, or when there exists a credible allegation of fraud or abuse presented by the Department, the Oregon Health Authority's Office of Program Integrity, DOJ MFCU, or law enforcement entity, or where there is a pending investigation or conclusion of legal proceedings related to the alleged fraud or abuse.

(L) Is listed on any Office of Inspector General exclusion list under sections 1128 or 1128A of the Social Security Act or has been convicted of a criminal offense in the last 10 years related to that person's involvement in any program established under Medicare, Medicaid, or Title XX.

(M) Failed to comply with a request from the Department for fingerprinting, background check, documents, records, or access to any agency location for the purpose of a site visit or other inspection by the Department.

(b) The Department may deny or revoke a certificate or endorsement when, after having an opportunity to correct the reason for the denial or revocation:

(A) An agency demonstrates failure to comply with these rules, the rules in OAR chapter 411, division 004, or the corresponding program rules such that the health, safety, or welfare of individuals is jeopardized, and the agency fails to correct the non-compliance from the receipt of an advisory letter, serious violation letter, or other written communication from the Department directing the agency to correct a violation within a time frame specified by the Department.

(B) An agency is not in substantial compliance with the rules of any program for which an agency is licensed or certified by the Department or Oregon Health Authority to operate.

(C) An agency violates the terms of their Provider Enrollment Agreement as described in OAR 411-370-0030(8).

(D) A request for information or documentation related to an application as described in OAR 411-323-0030(3)(b) or (4)(b) is not fulfilled within 30 calendar days of the request.

(E) Upon a change in the executive director, ownership interest, legal entity, legal status, or management corporation of the agency:

(i) The agency does not inform the Department of the change as required in OAR 411-323-0030(6); or

(ii) If the change results in a determination by the Department that following the change the agency no longer qualifies to have a certificate or endorsement.

(F) An agency requires three follow ups during an investigation by the Department, described in OAR 411-323-0040(1), without an adequate response from the agency.

(G) The agency does not have a qualified executive director and fails to implement the policy required in OAR 411-323-0060(13), or has an executive director who:

(i) Does not possess, to the satisfaction of the Department, the skills, knowledge, and ability to deliver a program service; or

(ii) Has not successfully completed the orientation offered by the Department when required.

(H) The agency is not registered as a business with the Oregon Secretary of State in accordance with ORS chapter 648.

(I) The agency does not have adequate policies and procedures required by OAR 411-323-0050 sections (1) and (2), OAR 411-323-0060, and the program rule corresponding to any endorsement.

(J) The agency's business plan does not demonstrate sustainability or demonstrates unacceptable levels of risk that may jeopardize an individual's safety or residential setting.

(K) The agency fails to maintain insurance coverage outlined in the Provider Enrollment Agreement.

(L) The agency delivers services in a provider owned, controlled, or operated setting and the setting is unsafe for individuals receiving services in the setting.

(M) The identity of an applicant cannot be verified by the Department.

(c) The denial or revocation of a certificate by the Department is a denial or revocation of the endorsements associated with the certificate.

(d) NOTICE OF DENIAL OR REVOCATION. The Department must issue a written notice to the agency when the Department denies or revokes a certificate or endorsement.

(e) When the Department issues a notice of denial or revocation of a certificate or endorsement, the Department may inform other state or federal regulatory entities as appropriate and make referrals to OTIS for suspected abuse, law enforcement where required by law, or the Department of Justice for Medicaid fraud investigation if indicated.

(f) HEARING. An applicant or a certified agency, as applicable, may request a hearing in accordance with ORS chapter 183, this rule, and ORS 443.421 upon service of a written notice from the Department of denial or revocation of a certificate or endorsement. The request for a hearing must be in writing.

(A) DENIAL. The applicant must request a hearing within 60 calendar days from the service of the written notice of denial.

(B) REVOCATION.

(i) Notwithstanding subsection (ii) of this section, the agency must request a hearing within 21 calendar days from the service of the written notice of revocation clearly stating the reason for the request and what is being appealed.

(I) In addition to, or in-lieu of a hearing, the agency may request an administrative review as described in section (5) of this rule. The request for an administrative review must be in writing clearly stating the reason for the request and what is being appealed.

(II) The administrative review does not diminish the right of the agency to a hearing.

(ii) An agency endorsed to operate a 24-hour residential program as described in OAR chapter 411, division 325 or a host home program as described in OAR chapter 411, division 348, must request a hearing within 10 calendar days from the receipt of the written notice of revocation.

(4) IMMEDIATE SUSPENSION.

(a) When the Department finds a serious and immediate threat to an individual's health and safety and sets forth the specific reasons for such findings, the Department may, by written notice to an agency, immediately suspend a certificate or endorsement without a pre-suspension hearing and the agency may not continue to deliver any program services under a suspended endorsement. A suspended certificate is a suspension of any attached endorsements.

(b) HEARING. The agency may request a hearing in accordance with ORS chapter 183 upon written notice from the Department of the immediate suspension. The request for a hearing must be in writing.

(A) Notwithstanding subsection (B) of this section, the agency must request a hearing within 90 calendar days from the receipt of the written notice of suspension.

(i) In addition to, or in-lieu of a hearing, the agency may request an administrative review as described in section (5) of this rule. The request for an administrative review must be in writing.

(ii) The administrative review does not diminish the right of the agency to a hearing.

(B) An agency endorsed to operate a 24-hour residential program as described in OAR chapter 411, division 325 or a host home program as described in OAR chapter 411, division 348, must request a hearing within 10 calendar days from the receipt of the written notice of suspension.

(5) ADMINISTRATIVE REVIEW.

(a) Notwithstanding subsection (b) of this section, an agency, in addition to the right to a hearing, may request an administrative review. The request for an administrative review must be in writing clearly stating the reason for the request and what is being appealed.

(b) An agency endorsed to operate a 24-hour residential program as described in OAR chapter 411, division 325 or a host home program as described in OAR chapter 411, division 348, may not request an administrative review for revocation or suspension. An agency endorsed to operate a 24-hour residential program as described in OAR chapter 411, division 325 or a host home program as described in OAR chapter 411, division 348 may request an administrative review for imposition of conditions clearly stating the reason for the request and what is being appealed.

(c) The Department must receive a written request for an administrative review within 10 business days from the service of the notice of suspension, revocation, or imposition of conditions. An agency may submit, along with the written request for an administrative review, any additional written materials the agency wishes to have considered during the administrative review.

(d) The determination of the administrative review shall be issued by the Department in writing within 10 business days from the receipt of the written request for an administrative review, or by a later date as agreed to by the agency.

(e) An agency, notwithstanding subsection (b) of this section, may request a hearing if the decision of the Department is to affirm the suspension, revocation, or condition. The request for a hearing must be in writing. The Department must receive the written request for a hearing within 21 calendar days from the receipt of the original written notice of suspension, revocation, or imposition of conditions.

(6) INFORMAL CONFERENCE. Unless an administrative review has been completed as described in section (5) of this rule, an applicant or agency requesting a hearing may have an informal conference with the Department. The informal conference may result in resolution of the issue.

Or. Admin. R. 411-323-0033

APD 16-2023, adopt filed 09/30/2023, effective 10/1/2023

Statutory/Other Authority: ORS 409.050, 427.104, 430.662 & SB 1548 (2022 OR Law, Ch. 91)

Statutes/Other Implemented: ORS 409.010, 427.007, 427.104, 430.215, 430.610, 430.662 & SB 1548 (2022 OR Law, Ch. 91)