Current through Register Vol. 63, No. 9, September 1, 2024
(1) The
Division may at any time and at its discretion impose conditions on a license
upon a finding that:
(a) There is a threat to
the health, welfare, or safety of an individual or the public;
(b) There is substantiated evidence of abuse,
neglect, or mistreatment by the applicant, provider, or provider
staff;
(c) 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;
(d)
The applicant or provider substantially fails to comply with these rules,
service delivery rules, or other applicable law; or
(e) The applicant or provider fails to fully
implement a Plan of Correction (POC) or adequately maintain a POC.
(2) When deciding whether to
impose conditions rather than denying, suspending, refusing to renew, or
revoking a license, the Division shall consider all of the circumstances
including but not limited to the following criteria:
(a) The expressed willingness and
demonstrated ability of the applicant or provider to gain and maintain
compliance with all applicable administrative rules and laws;
(b) The submitted 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 license with conditions as an alternative to
revocation or refusal to award a license; or
(d) The applicant or provider's historical
compliance with Division rules or orders, previous conditions placed on
licenses, and previous plans of correction.
(3) Conditions to the license may include:
(a) Requiring corrective actions with
timeframes for completion to correct areas of non-compliance or concern
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 these or other applicable administrative rules and
laws.
(4) The Division
may issue a notice of intent to impose conditions in accordance as described in
section (15) of this rule, or may impose conditions on a license With Notice or
Without Notice as described in sections (4) to (8). In imposing conditions With
Notice or Without Notice, a provider or applicant may request an informal
conference:
(a) The Division may issue the
conditions With Notice by issuing a Notice of Impending Imposition of License
Condition (Notice) at least 48 hours prior to issuing an Order Imposing License
Condition (Order) to a provider or applicant. After the Order is issued, the
Division shall revise the license 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 and the Division determines it is not safe
or practical to give an applicant or provider advance notice. The Division may
impose the conditions without notice by issuing an Order to a provider or
applicant. After the Order is issued, the Division shall revise the license to
indicate the conditions that have been ordered.
(5) The Notice shall be provided in writing
or orally with subsequent written notice. 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. The Notice shall:
(a) Describe the acts or omissions of the
applicant or provider and the circumstances that led to the finding that the
imposition of a license condition is warranted;
(b) 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 an individual within the
Division who 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) Inform the applicant or provider that
they may request an informal conference prior to the issuance of the Order, 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 the Division determines it to be appropriate, 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 requested timely, the informal
conference shall be held within seven days of the request. The Order may be
issued at any time after the informal conference;
(b) If an Order is issued without a prior
Notice, the applicant or provider may within two business days 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 license
condition;
(f) Right to request a
contested case hearing under ORS Chapter 183;
(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 waive the right to a hearing under ORS Chapter
183;
(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 license condition is warranted; and,
(i) A statement that the Division may combine
the hearing on the Order with any other proceeding affecting the license. The
procedures for the combined proceeding must be those applicable to the other
proceedings affecting the license.
(8) Hearing:
(a) If the Division issues an Order, the
applicant or provider may request a contested case hearing pursuant to ORS
Chapter 183;
(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 waive the right to a hearing
under ORS Chapter 183;
(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 license or limited to a shorter period of time.
If the condition corresponds to the license 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 license.
(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 reoccur, 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 reoccur, the condition
shall be withdrawn, and the Division shall revise the license 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 license 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
shall include information of the right to a contested case hearing pursuant to
ORS Chapter 183. Nothing in this rule is intended to limit the Division's
authority to inspect facilities at any time.
(13) The Division may deny, suspend, refuse
to renew, or revoke the license when the provider or applicant fails to timely
comply with one or more conditions.
(14) When the Division orders a condition be
placed on a license With Notice or Without Notice, the applicant or provider
may 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 under ORS Chapter 183 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
413.042, ORS
430.256 & ORS
430.357
Statutes/Other Implemented: ORS
413.032,
ORS
430.010, ORS
430.256,
ORS
430.306, ORS
430.397,
ORS
430.405,
ORS
430.450,
ORS
430.630,
ORS
430.850 & ORS
443.400 to
443.455
