Current through Register Vol. 63, No. 9, September 1, 2024
(1) The Division
may elect at any time and at its discretion to place conditions on a
certificate upon a finding that:
(a) The
applicant or provider employs or contracts with any program staff for whom
there is substantiated evidence of abuse, neglect, or mistreatment;
(b) The applicant or provider employs or
contracts with any program staff that fails to meet relevant minimum
qualifications described in these rules, service delivery rules, or other
applicable law;
(c) There is
substantiated evidence of abuse, neglect, or mistreatment;
(d) The applicant or provider operates such
that there is a threat to the health, welfare, or safety of an individual or
the public;
(e) The applicant or
provider has substantially failed to comply with these rules, service delivery
rules, or other applicable law;
(f)
The applicant or provider fails to fully implement a POC or adequately maintain
a corrective action;
(g) The
Division has issued the applicant or provider through two or more consecutive
certification reviews substantially similar findings of non-compliance with
these rules, service delivery rules, or other applicable administrative rules,
statutes, or regulations;
(h) There
is a need for increased regulatory oversight of the applicant or provider;
or
(i) The applicant or provider
fails to comply with any reporting requirements relating to funding
certification.
(2) The
Division shall consider the sum of the circumstances including but not limited
to the following criteria when deciding whether to impose conditions as opposed
to denying, suspending, refusing to renew, or revoking a certificate:
(a) The expressed willingness and
demonstrated ability of the applicant or provider to gain and maintain
compliance with all applicable administrative rules and law;
(b) Submission of a POC prescribing
reasonable, sustained, and timely resolution to areas of
non-compliance;
(c) The relative
availability of alternative providers to address any service needs that would
be unmet if the applicant or provider is not issued a certificate with
conditions as an alternative to revocation or refusal to award a certificate;
or
(d) The applicant or provider's
historical compliance with Division rules, previous conditions placed on
certificates, and previous POC's.
(3) Conditions to the certificate may
include:
(a) Requiring corrective actions
with associated timeframes for completion necessary for the applicant or
provider to correct areas of non-compliance or concerns identified by the
Division;
(b) Limiting the total
number of individuals enrolled in services or on a waitlist for
services;
(c) Limiting the
population such as narrowing the age range of individuals who the applicant or
provider may serve;
(d) Limiting
the scope and type of services that the applicant or provider may
provide;
(e) Other conditions
deemed necessary by the Division to ensure the health and safety of individuals
and the public; and
(f) Other
conditions deemed necessary by the Division for the purpose of ensuring
regulatory compliance with this or other applicable administrative rules and
law.
(4) The Division
may issue a notice of intent to impose conditions as described in section (15)
of this rule or may impose conditions on a certificate with notice or without
notice as described in sections (4) to (8). In imposing conditions with notice
or without notice, a provider or an applicant may request an informal
conference:
(a) The Division may issue the
conditions with notice by issuing a Notice of Impending Imposition of
Certificate Condition (Notice) at least 48 hours prior to issuing an Order
Imposing Certificate Condition (Order) to a provider or an applicant. After the
Order is issued, the Division shall revise the certificate to indicate the
conditions that have been ordered;
(b) The Division may impose the conditions
without notice only if the Division determines that there is an imminent threat
to individuals such that the Division determines it is not safe or practical to
give an applicant or a provider advance notice. The Division may impose the
conditions without notice by issuing an Order to a provider or an applicant.
After the Order is issued, the Division shall revise the certificate to
indicate the conditions that have been ordered.
(5) The Notice may be provided in writing or
orally. When the Notice is provided in writing, it shall be sent by certified
or registered mail or delivered in person to the applicant or provider. If the
Notice is provided orally, it may be provided by telephone or in person to the
applicant, provider, or person represented as being in charge of the program.
When the Notice is delivered orally, the Division shall subsequently provide
written notice to the applicant or provider by registered or certified mail.
The Notice shall:
(a) Generally describe the
acts or omissions of the applicant or provider and the circumstances that led
to the finding that the imposition of a certificate condition is
warranted;
(b) Generally 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
impending condition;
(d) Identify a
person within the Division whom the applicant or provider may contact and who
is authorized to enter the Order or to make recommendations regarding issuance
of the Order;
(e) Specify the date
and time the Order is scheduled to take effect; and
(f) Offer that the applicant or provider may
request an informal conference prior to the issuance of the Order Imposing
Certificate Condition, or if the provider has already requested an informal
conference, specify the date and time that an informal conference shall be
held.
(6) If an informal
conference is requested regarding conditions, the conference shall be held at a
location designated by the Division. If determined to be appropriate by the
Division, the conference may be held by telephone. Following the informal
conference, the Division may modify the conditions. The timing of the informal
conference is described as follows:
(a) If a
Notice is issued, the applicant or provider may request an informal conference
to object to the Division's proposed action before the condition is scheduled
to take effect. The request for an informal conference shall be made prior to
the date the conditions are intended to be effective. If timely requested, the
informal conference shall be held within seven days of the request. The Order
Imposing Condition may be issued at any time after the informal
conference;
(b) If an Order
Imposing Condition is issued without a prior Notice, the applicant or provider
may within 48 hours of the issuance of the Order request an informal
conference. If timely requested, the informal conference shall be held within
two business days of receipt of the request. Following the informal conference,
the Division at its discretion may modify the conditions.
(7) When an Order is issued, the Division
must serve the Order either personally or by registered or certified mail. The
Order must include the following statements:
(a) The authority and jurisdiction under
which the condition is being issued;
(b) A reference to the particular sections of
the statute and administrative rules involved;
(c) The effective date of the
condition;
(d) A short and plain
statement of the nature of the matters asserted or charged;
(e) The specific terms of the certificate
condition;
(f) Right to request a
contested case hearing under ORS Chapter 183.411 to 500;
(g) A statement that if a request for hearing
is not received by the Division within 21 days of the date of the Order, the
applicant or provider shall have waived the right to a hearing under ORS
Chapter 183.411 to 500;
(h)
Findings of specific acts or omissions of the applicant or provider that are
grounds for the condition and the reasons the acts or omissions create a
situation for which the imposition of a certificate condition is warranted;
and,
(i) A statement that the
Division may combine the hearing on the Order with any other proceeding
affecting the certificate. The procedures for the combined proceeding must be
those applicable to the other proceedings affecting the certificate.
(8) Hearing:
(a) If the Division serves an Order Imposing
Condition, the applicant or provider is entitled to a contested case hearing.;
(b) The Division must receive the
request for a hearing within 21 days of the date of Order. If a request for
hearing is not received by the Division within 21 days of the date of the
Order, the applicant or provider shall have waived the right to a
hearing;
(c) The applicant or
provider may request a contested case hearing regarding the imposition of the
conditions in addition to or in lieu of an informal conference. Requesting a
contested case hearing may not delay the effective date of the
conditions.
(9) When a
restriction of enrollment or intake is in effect pursuant to an Order, the
Division in its sole discretion may authorize the provider to admit or serve
new individuals for whom the Division determines that alternate placement or
provider is not feasible.
(10)
Conditions may be imposed for the duration of the certificate or limited to
some other shorter period of time. If the condition corresponds to the
certificate period, the reasons for the condition shall be considered at the
time of renewal to determine if the conditions are still appropriate. The
effective date and expiration date of the condition shall be indicated on the
certificate.
(11) When the
applicant or provider determines that the circumstances leading to imposition
of the condition no longer exist and that effective systems are in place to
ensure that similar deficiencies do not recur, the applicant or provider may
make written request to the Division for re-inspection.
(12) Re-inspection:
(a) If the Division finds that the situation
for which the condition was imposed has been corrected and finds that systems
are in place to ensure that similar deficiencies do not recur, the condition
shall be withdrawn, and the Division must revise the certificate accordingly.
Following re-inspection, the Division shall notify the facility by telephone of
the decision to withdraw the condition. Telephone notification shall be
followed by written notification;
(b) If the Division determines after a
re-inspection that the situation for which the condition was imposed continues
to exist or that there are not sufficient systems in place to prevent similar
deficiencies, the certificate condition may not be withdrawn, and the Division
is not obligated to re-inspect again for at least 45 days. A decision not to
withdraw the Order shall be given to the applicant or provider in writing, and
the applicant or provider shall be informed of the right to a contested case
hearing. Nothing in this rule is intended to limit the Division's authority to
conduct a certification review at any time.
(13) The Division may deny and refuse to
renew or revoke the certificate when the provider or applicant fails to comply
timely with the condition.
(14)
When the Division orders a condition be placed on a certificate With Notice or
Without Notice under the provisions of this rule, the applicant or provider is
entitled to request a contested case hearing.
(15) In addition to or instead of imposing
conditions With Notice or Without Notice as described in sections (4) to (8)
and (14), the Division may issue a notice of intent to impose a condition with
the opportunity for a contested case hearing prior to imposing the condition.
Notices of intent to impose a condition shall be issued consistent with
sections (1)-(3) and (9)-(13).
Statutory/Other Authority: ORS
179.040,
179.505, ORS
413.042,
413.032-413.033,
426.072,
426.236,
426.500,
430.010,
430.021,
430.256,
430.357,
430.560,
430.640,
430.870 &
743A.168
Statutes/Other Implemented: ORS
413.520,
426.060,
426.140,
430.010,
430.254,
430.335,
430.590,
430.620 &
430.637
