Or. Admin. Code § 411-054-0027

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

Section 411-054-0027 - [Effective until 12/27/2024] Resident Rights and Protections

(1) GENERAL RIGHTS. The facility must implement a residents' Bill of Rights. Each resident and the resident's designated representative, if appropriate, must be given a copy of the resident's rights and responsibilities before moving into the facility. The Bill of Rights must state that residents have the right:

(a) To be treated with dignity and respect.

(b) To be given informed choice and opportunity to select or refuse service and to accept responsibility for the consequences.

(c) To be given informed consent before any nontherapeutic examination, observation or treatment is provided.

(d) To participate in the development of their initial service plan and any revisions or updates at the time those changes are made.

(e) To receive information about the method for evaluating their service needs and assessing costs for the services provided.

(f) To exercise individual rights that do not infringe upon the rights or safety of others.

(g) To be free from neglect, financial exploitation, verbal, mental, physical, or sexual abuse.

(h) To receive services in a manner that protects privacy and dignity.

(i) To have prompt access to review all of their records and to purchase photocopies. Photocopied records must be promptly provided, but in no case require more than two business days (excluding Saturday, Sunday, and holidays).

(j) To have medical and other records kept confidential except as otherwise provided by law.

(k) To associate and communicate privately with any individual of choice, to send and receive personal mail unopened, and to have reasonable access to the private use of a telephone.

(l) To be free from physical restraints and inappropriate use of psychoactive medications.

(m) To manage personal financial affairs unless legally restricted.

(n) To have access to, and participate in, social activities.

(o) To be encouraged and assisted to exercise rights as a citizen.

(p) To be free of any written contract or agreement language with the facility that purports to waive their rights or the facility's liability for negligence.

(q) To voice grievances and suggest changes in policies and services to either staff or outside representatives without fear of retaliation.

(r) To be free of retaliation after they have exercised their rights provided by law or rule.

(s) To have a safe and homelike environment.

(t) To be free of discrimination in regard to race, color, national origin, gender, sexual orientation, or religion.

(u) To receive proper notification if requested to move-out of the facility, and to be required to move-out only for reasons stated in OAR 411-054-0080 (Involuntary Move-out Criteria) and have the opportunity for an administrative hearing, if applicable.

(2) LGBTQIA2S+ PROTECTIONS. A facility and the staff of the facility may not take any of the following actions based in whole or in part on a resident's actual or perceived sexual orientation, gender identity, gender expression or human immunodeficiency virus status:

(a) Deny admission to a facility, transfer or refuse to transfer a resident within a facility or to another facility or discharge or evict a resident from a facility;

(b) Deny a request by a resident to choose the resident's roommate, when a resident is sharing a room;

(c) Refuse to assign a room to a transgender or other LGBTQIA2S+ resident other than in accordance with the resident's gender identity, unless at the request of the resident or if required by federal law;

(d) Prohibit a resident from using, or harass a resident who seeks to use or does use, a restroom that is available to other individuals of the same gender identity as the resident, regardless of whether the resident is making a gender transition, has taken or is taking hormones, has undergone gender affirmation surgery or presents as gender nonconforming. Harassment includes, but is not limited to, requiring a resident to show documentation of gender identity in order to gain entrance to a restroom or other area of a care facility that is available to other individuals of the same gender identity as the resident;

(e) Repeatedly and willfully refuse to use a resident's name or pronouns after being reasonably informed of the resident's name or pronouns;

(f) Deny a resident the right to wear or be dressed in clothing, accessories or cosmetics, or to engage in grooming practices, that are permitted to any other resident;

(g) Restrict a resident's right to associate with other residents or with visitors, including the resident's right to consensual sexual relations or to display physical affection, unless the restriction is uniformly applied to all residents in a nondiscriminatory manner;

(h) Deny or restrict medical or nonmedical care that is appropriate to a resident's organs and bodily needs, or provide medical or nonmedical care that, to a similarly situated, reasonable person, unduly demeans the resident's dignity or causes avoidable discomfort;

(i) Fail to accept a resident's verbal or written attestation of the resident's gender identity or require a resident to provide proof of the resident's gender identity using any form of identification;

(j) Fail to take reasonable actions, within the care facility's control, to prevent discrimination or harassment when the facility knows or should have known about the discrimination or harassment;

(k) Refuse or willfully fail to provide any service, care or reasonable accommodation to a resident; or

(l) Refuse or willfully fail to provide any service, care or reasonable accommodation to a potential resident applying for services or care.

(3) HCBS RIGHTS.

(a) Effective January 1, 2016 for providers initially licensed after January 1, 2016, and effective no later than June 30, 2019 for providers initially licensed before January 1, 2016 the following rights must include the freedoms authorized by 42 CFR 441.301(c)(4) & 42 CFR 441.530(a)(1):

(A) Live under a legally enforceable residency agreement.

(B) The freedom and support to access food at any time.

(C) To have visitors of the resident's choosing at any time.

(D) Choose a roommate when sharing a bedroom.

(E) Furnish and decorate the resident's bedroom according to the Residency Agreement.

(F) The freedom and support to control the resident's schedule and activities.

(b) The rights described in (B) through (F) of this section must meet the requirements set forth in OAR 411-054-0038 and shall not be limited without the informed, written consent of the resident or the resident's representative, and approved by the person-centered service plan coordinator.

(4) Licensees and facility personnel may not act as a resident's guardian, conservator, trustee, or attorney-in-fact unless related by birth, marriage, or adoption to the resident, as follows, parent, child, brother, sister, grandparent, grandchild, aunt or uncle, or niece or nephew. An owner, administrator, or employee may act as a representative payee for the resident or serve in other roles as provided by law.

(5) Licensees and facility personnel may not spend resident funds without the resident's consent.

(a) If the resident is not capable of consenting, the resident's representative must give consent.

(b) If the resident has no representative and is not capable of consenting, licensees and facility personnel must follow the requirements described in OAR 411-054-0085 and may not spend resident funds for items or services that are not for the exclusive benefit of the resident.

Or. Admin. Code § 411-054-0027

SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07; SPD 11-2012, f. 8-31-12, cert. ef. 9-1-12; APD 26-2015(Temp), f. 12-29-15, cert. ef. 1-1-16 thru 6-28-16; APD 10-2016, f. 6-27-16, cert. ef. 6/28/2016; APD 30-2017, amend filed 12/01/2017, effective 12/15/2017; APD 17-2017(Temp), f. & cert. ef. 8-1-17 thru 1-27-18; APD 28-2024, temporary amend filed 06/21/2024, effective 7/1/2024 through 12/27/2024

Statutory/Other Authority: ORS 410.070, 441.122 & 443.450

Statutes/Other Implemented: ORS 441.112, 441.114, 443.400 - 443.455 & 443.991