Current through Register Vol. 63, No. 9, September 1, 2024
(1) The Division
may at any time and at its discretion place conditions on a certificate upon a
finding that:
(a) The applicant or ADSS
employs or contracts with any program staff for whom there is substantiated
evidence of abuse, neglect, or mistreatment;
(b) The applicant or ADSS 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 ADSS operates such that
there is a threat to the health, welfare, or safety of an individual or the
public;
(e) The applicant or ADSS
has substantially failed to comply with these rules, service delivery rules, or
other applicable law;
(f) The
applicant or ADSS fails to fully implement a Plan of Correction or adequately
maintain a corrective action;
(g)
The Division has issued the applicant or ADSS 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 ADSS; or
(i) The applicant or ADSS 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 ADSS 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 ADSS to address any service needs that would be unmet if the
applicant or ADSS is not issued a certificate with conditions as an alternative
to revocation or refusal to award a certificate; or
(d) The applicant or ADSS' historical
compliance with Division rules, previous conditions placed on certificates, and
previous POCs.
(3)
Conditions to the certificate may include:
(a) Requiring corrective actions with
associated timeframes for completion necessary for the applicant or ADSS 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 ADSS may serve;
(d) Limiting the scope and type of services
that the applicant or ADSS 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 impose
conditions on a certificate With Notice or Without Notice. In both processes,
an ADSS 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 an ADSS 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 an ADSS
advance notice. The Division may impose the conditions without notice by
issuing an Order to an ADSS 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 ADSS. If the Notice is provided orally, it may be provided by
telephone or in person to the applicant, ADSS, 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 ADSS by
registered or certified mail. The Notice shall:
(a) Generally describe the acts or omissions
of the applicant or ADSS 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 an individual within the
Division who the applicant or ADSS 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 ADSS may
request an informal conference prior to the issuance of the Order Imposing
Certificate Condition, or if the ADSS 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
ADSS 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 is issued without a prior
Notice, the applicant or ADSS 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;
(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 ADSS shall have waived the right to a hearing;
(h) Findings of specific acts or omissions of
the applicant or ADSS 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,
the applicant or ADSS is entitled to 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 ADSS shall have waived the right to a hearing;
(c) The applicant or ADSS 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 ADSS to admit or serve new individuals for
whom the Division determines that alternate placement or ADSS 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 ADSS 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 ADSS 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 ADSS in writing, and the
applicant or ADSS 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, suspend, and
refuse to renew or revoke the certificate when the ADSS or applicant fails to
comply timely with the condition.
(14) When the Division orders a condition be
placed on a certificate under the provisions of this rule, the applicant or
ADSS is entitled to request a hearing in accordance with ORS Chapter
183.
Statutory/Other Authority: 413.042 & 430.256
Statutes/Other Implemented: 430.256
