Current through Register Vol. 63, No. 3, March 1, 2024
(1) Contents of Notice. The notice of intent
to impose a civil money penalty under these rules shall include:
(a) Nature of the noncompliance;
(b) Statutory basis for the
penalty;
(c) Amount of penalty per
day of noncompliance;
(d) Any
factors specified in OAR 411-073-0090(3)(b) that were considered when the
amount of the penalty was determined;
(e) Date upon which the penalty begins to
accrue;
(f) Date the penalty
stopped accruing or circumstances under which the penalty will stop accruing;
and
(g) Instructions for responding
to the notice, a statement of the facility's right to a hearing, and the
implication of waiving the hearing.
(2) Waiver of Hearing.
(a) The facility may waive, in writing, the
right to a hearing within 60 days from the date of the Division's notice of
intent to impose the civil money penalty.
(b) If the facility waives the right to a
hearing in accordance with subsection (2)(a) of this rule, the amount of the
civil money penalty shall be reduced by 35 percent.
(3) Hearing.
(a) Reduction of Penalty. If the hearings
officer finds the basis for imposing a civil money penalty exists, (s)he may
not reduce the amount of the civil money penalty below the level required by
the scope and severity of noncompliance found pursuant to OAR 411-073-0040, OAR
411-073-0090 and Exhibit 1.
(b)
Issues Considered. The only issues the hearings officer may consider in
reviewing the amount of the civil money penalty are:
(A) The facility's history of noncompliance,
including repeated deficiencies;
(B) The facility's financial
condition;
(C) The factors listed
in OAR 411-073-0030(2); and
(D) The
facility's degree of culpability. The absence of culpability is not a
mitigating circumstance in reducing the amount of the civil money
penalty.
(c) Standard of
Review. The Division's determination as to a facility's level of noncompliance
pursuant to OAR 411-073-0030(2) shall be upheld by the hearings officer unless
(s)he determines it is clearly erroneous.
(4) Order Of Payment.
(a) The Division shall issue a "Final Order
for Payment of Civil Money Penalty" when
(A)
The facility did not request a hearing; or
(B) The facility waived the right to a
hearing; or
(C) The civil money
penalty was upheld after a hearing; and
(D) The facility has been determined to be in
substantial compliance; or
(E) The
facility has been terminated from participation.
(b) The final order for payment shall
include:
(A) The nature of the
noncompliance;
(B) The statutory
basis of the penalty;
(C) The
amount of the penalty per day of noncompliance;
(D) Any factors specified in OAR
411-073-0090(2)(b) that were considered when determining the amount of the
penalty;
(E) The dates for which
the penalty was charged;
(F) The
total amount due;
(G) The due date
the penalty must be paid; and
(H)
The rate of interest assessed on any unpaid balance after the due
date.
(c) The Division
may deduct the amount of the penalty from any sum then or later owed to the
facility by the Division or HCFA.
(d) The civil money penalty is due 15 days
after the Final Order for Payment of Civil Money Penalty is mailed.
(5) Interest. The Division shall
assess interest on any unpaid balance of the penalty, beginning on the date the
penalty is due. The interest rate is the rate established by ORS
82.010.
(6) Use Of Civil Penalty Monies. Civil money
penalties collected by the Division pursuant to these rules (OAR Chapter 411,
Division 73) shall be applied to the protection of the health and property of
residents in facilities found to be deficient by the Division or HCFA. Uses may
include but not be limited to:
(a) Relocation
costs;
(b) Division costs related
to temporary management; or
(c)
Reimbursement of resident funds or property lost at the facility as a result of
actions by the facility or by employees of the facility.
Stat. Auth.: ORS
410.070
Stats. Implemented: ORS
410.070