Oregon Administrative Rules
Chapter 411 - DEPARTMENT OF HUMAN SERVICES, AGING AND PEOPLE WITH DISABILITIES AND DEVELOPMENTAL DISABILITIES
Division 88 - NURSING FACILITIES/LICENSING - TRANSFERS
Section 411-088-0080 - Informal Conference and Hearing
Universal Citation: OR Admin Rules 411-088-0080
Current through Register Vol. 63, No. 3, March 1, 2024
(1) A resident who is to be involuntarily transferred or refused the right of return or readmission is entitled to an informal conference and hearing as provided in this rule.
(2) CONFERENCE REQUEST.
(a) Upon receipt of a notice, a resident, any
designated agency, or person acting on the resident's or former resident's
behalf, may request an informal conference on the form provided on the
brochure, "Leaving the Nursing Facility".
(A)
The request for informal conference must be mailed to the Department within 10
business days of the service or delivery of the notice. The Department shall
immediately notify the licensee of the request.
(B) The Department may extend the time
allowed for requesting an informal conference if the Department determines that
good cause exists for failure to make a timely request.
(C) Any facility management personnel or
employee involved in providing nursing or other direct care who receives any
oral or written indication of a desire for an informal conference from a
resident must immediately notify the facility administrator. The administrator
must immediately thereupon provide notification to the Department.
(b) A resident may not be
transferred after having requested an informal conference or after facility
staff or the licensee has knowledge of any indication of a resident's desire
for an informal conference until:
(A)
Disposition of the request has been completed to the satisfaction of all
parties; or
(B) Authorization for
transfer is provided by a Hearings Officer pursuant to this rule.
(3) INFORMAL CONFERENCE.
(a) The Department shall hold an
informal conference as promptly as reasonably possible but in no event later
than 10 days after the request is received unless a later date is agreed upon
by both the facility and the person or agency requesting the conference. The
Department shall give telephone notice (where a telephone number is available)
and send written notice of the time and place of the informal conference to the
facility and all persons entitled to the notice. The purpose of the informal
conference is to resolve the matter without a formal hearing. If a resolution
is reached at the informal conference, the resolution shall be reduced to
writing and no formal hearing shall be held.
(b) The proceedings shall be conducted at the
facility where the resident is located unless an alternate site is agreed upon
by both the licensee and the person or agency requesting the informal
conference.
(c) If at the end of
an informal conference the licensee wishes to proceed with the transfer, the
Department shall ask if the resident or any person or agency representing the
resident wishes to request a hearing.
(4) HEARING.
(a) A hearing is conducted as a contested
case in accordance with the Administrative Procedures Act, ORS Chapter 183, and
the rules of the Department adopted there under. Parties to the hearing must be
the resident (or former resident) and the licensee. The Hearings Officer is
delegated the authority to issue the final order and shall do so.
(b) If, pursuant to section (3) of this rule,
the Department receives (orally or in writing) a request for a hearing, the
Department shall set the date, time, and place of the hearing as promptly as
possible. Unless a later date is agreed upon by both the licensee and the
person requesting the hearing, the hearing must be held no later than 30 days
after the informal conference.
(c)
An expedited hearing must be conducted In the case of an involuntary transfer
under OAR 411-088-0020(1)(f) (Termination of Nursing Facility Operations).
(A) To request an expedited hearing, the
resident or any agency or person designated to act on the resident's behalf
must verbally request or submit a completed and signed Hearing Request form.
The request for an expedited hearing must be received by the Department within
10 business days after an informal conference.
(B) The Department may extend the time
allowed for requesting an expedited hearing if the Department determines that
good cause exists for failure to make a timely request.
(C) An expedited hearing shall be conducted
within 5 business days of request. The final order shall be issued within 48
hours following the hearing.
(d) Nothing herein shall be construed to
prohibit, at the election of the Department and with the consent of all
interested parties, a hearing immediately following an informal conference.
(e) The Department shall provide
all persons and entities listed in OAR 411-088-0070(3) and the licensee with
notification of a hearing. The hearing notification shall be served on the
parties personally or by registered or certified mail.
(f) At the hearing, the facility must proceed
first by presentation of evidence in support of the transfer of the resident or
of refusal to provide right of return or readmission of the former resident.
The person requesting the hearing must follow the facility by presentation of
evidence in support of their objection to the transfer or of the request of
right of return or readmission.
(A) In a
hearing concerning right of readmission, the only questions raised shall be
whether the application was timely, whether the former resident is eligible by
means of payment, and whether another person was or is entitled to the bed.
(B) In a hearing concerning right
of return, the only questions raised shall be whether full payment is or was
available for the period of hospital stay and whether there was authority under
OAR 411-088-0050(2) for another person to be given the bed.
(C) In a hearing concerning involuntary
transfer under OAR 411-088-0020(1)(f) as a result of termination of nursing
facility operations, the only question raised shall be whether the proposed
transition plan meets the requirements described in OAR 411-085-0025(2)(d).
(g) The licensee has
the burden of establishing that the transfer or denial of return or readmission
is permitted by law.
(h) The
Hearings Officer shall, in determining the appropriateness and timeliness of an
involuntary transfer or a refusal of return or readmission, consider factors
including but not limited to the factors listed in OAR 411-088-0030. The
Hearings Officer may not approve a transfer:
(A) For medical or welfare reasons (under OAR
411-088-0020(1)(a) through (d)) if the risks of physical or emotional trauma
significantly outweighs the risk to the resident or to other residents if no
transfer were to occur; or
(B) For
any other reason if the transfer presents a substantial risk of morbidity or
mortality to the resident.
(i) CONCLUSION OF HEARING. The hearing is
concluded by the issuance of findings and an order:
(A) Affirming the transfer of the refusal to
provide right of return or readmission;
(B) Granting conditional approval of a
transfer when necessary or appropriate for the welfare of the resident.
Conditions may include without limitation the occurrence of any or all of the
following incidents in preparation for a transfer:
(i) Selecting a location for the resident to
be placed consistent with the resident's need for care and as consistent as
possible with the resident's ties with friends and family, if any;
(ii) Soliciting and encouraging participation
of the resident's friends and family in preparing the resident for transfer;
(iii) Visits by the resident to
the proposed site of relocation prior to the actual transfer, accompanied by a
person with whom the resident is familiar and comfortable, unless the resident
is already familiar with the proposed site;
(iv) Arranging at the proposed site of
relocation for continuation (as much as possible) of activities and routines
with which the resident has become familiar; and
(v) Ensuring that the resident is afforded
continuity in the arrangement of an access to personal items significant to the
resident.
(C) Ordering
the licensee to retain the resident, readmit the former resident if the
resident has been transferred, or provide the former resident with the right of
return or readmission;
(D)
Ordering the licensee to retain the resident and establishing standards of
behavior for family members or other visitors necessary for the welfare of
residents; or
(E) Making such
further provisions as are reasonably necessary to give full force and effect to
any order that a licensee retain or readmit the resident or provide the
resident the right of return or readmission.
(j) If the Department approves a transfer
subject to one or more conditions pursuant to this rule, the transfer may not
occur until the licensee has notified the person requesting the hearing and
certified to the Department in writing that all of such conditions have been
complied with and the Department has acknowledged to the licensee in writing
the receipt and sufficiency of such certification. The Department may, upon
request, allow verbal certification and give verbal acknowledgement subject to
subsequent certification and acknowledgement in writing.
(5) EXCEPTIONS.
(a) A resident who is to be involuntarily
transferred or refused the right of return or readmission as a result of
governmental action pursuant to OAR 411-088-0020(1)(b) or (e) is not entitled
to a hearing prior to transfer.
(b) A resident who is to be involuntarily
transferred as a result of termination of nursing facility operations pursuant
to OAR 411-088-0020(1)(f) is entitled to an informal conference and hearing
regarding the resident's proposed transition plan but not regarding transfer
from the facility that is terminating operations.
Stat. Auth.: ORS 410.070 & 441.055
Stats. Implemented: ORS 441.055, 441.600 & 441.615
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