Or. Admin. R. 411-089-0030 - Civil Penalties
(1) For
purposes of imposing civil penalties, facilities licensed under ORS
441.015 are considered to be
long-term care facilities subject to ORS
441.705 to
441.745.
(2) For purposes of this rule:
(a)"Resident rights" means that each resident
must be assured the same civil and human rights accorded to other citizens as
described in OAR 411-085-0310 through
411-085-0350.
(b) "Harm" means a measurable negative impact
to a resident's physical, mental, financial, or emotional well-being.
(c) "Minor harm" means harm resulting in no
more than temporary physical, mental, or emotional discomfort or pain without
loss of function, or in financial loss of less than $1,000.
(d) "Moderate harm" means harm resulting in
temporary loss of physical, mental, or emotional function, or in financial loss
of $1,000 or more, but less than $5,000.
(e) "Serious harm" means harm resulting in
long-term or permanent loss of physical, mental, or emotional function, or in
financial loss of $5,000 or more.
(f) "Financial loss" means loss of resident
property or money as a result of financial exploitation, as defined in ORS
124.050. Financial loss does not
include loss of resident property or money that results from action or inaction
of an individual not employed or contracted with the facility, or that arises
from the action or inaction of an individual employed or contracted with the
facility if the action or inaction occurs while the individual is not
performing employment or contractual duties.
(3) CIVIL PENALTIES REQUIRING REPEAT
VIOLATIONS. Violation of any Department rule is subject to a civil penalty
under the following circumstances:
(a) Such
violation is determined to exist on two consecutive surveys, inspections, or
visits; and
(b) The Department
prescribed a reasonable time for elimination of the violation at the time of,
or subsequent to, the first citation.
(4) The Director shall assess the severity of
a violation using the following criteria:
(a)
Level 1 - is a violation that results in no actual harm or in potential for
only minor harm.
(b) Level 2 - is a
violation that results in minor harm or potential for moderate harm.
(c) Level 3 - is a violation that results in
moderate harm or potential for serious harm.
(d) Level 4 - is a violation that results in
serious harm or death.
(5) The Director shall assess the scope of a
violation using the following criteria:
(a)
An isolated violation occurs when one or a very limited number of residents or
employees are affected or a very limited area or number of locations within a
facility are affected.
(b) A
pattern violation occurs when more than a very limited number of residents or
employees are affected, or the situation has occurred in more than a limited
number of locations but the locations are not dispersed throughout the
facility.
(c) A widespread
violation occurs when the problems causing the deficiency are pervasive and
affect many locations throughout the facility or represent a systemic failure
that affected, or has the potential to affect, a large portion or all of the
residents or employees.
(6) Determining Civil Penalties.
(a) When the Director is considering
imposition of a civil penalty under ORS
443.455(2)(a),
ORS 441.710, or Or Laws 2017, ch
679, ยง 4 on a nursing facility the Director shall comply with the
requirements of this section.
(b)
When imposing a civil penalty on a facility pursuant to this section, the
Director shall consider:
(A) Any prior
violations of laws or rules pertaining to the facility and, as a mitigating
factor, whether violations were incurred under prior ownership or management of
the facility.
(B)The financial
benefits, if any, realized by the facility as a result of the
violation.
(C) The facility's past
history of correcting violations and preventing the reoccurrence of
violations.
(D)The severity and
scope of the violation.
(7) Civil penalty amounts.
(a) The Director may impose civil penalties
as follows:
(A) For a Level 1 violation, the
Director may not impose a civil penalty.
(B) For a Level 2 violation, the Director may
impose a penalty in an amount no less than $250 per violation, not to exceed
$500 per violation.
(C) For a Level
3 violation, the Director may impose a civil penalty in an amount no less than
$500 per violation, not to exceed $1,500 per violation.
(D) For a Level 4 violation, the Director may
impose a civil penalty in an amount no less than $1,500 per violation, not to
exceed $2,500 per violation.
(E)
For a failure to report abuse of a resident to DHS as required by state law,
the Director may impose a civil penalty in an amount of no more than $1,000 per
violation.
(b) The
penalties imposed under paragraph (a)(A) to (D) of this section may not exceed
$20,000 in the aggregate for violations occurring in a single facility within
any 90-day period.
(c) In imposing
civil penalties under this section, the Director may take into account the
scope of the violation.
(8) Additional Civil Penalties. The
Department shall impose a civil penalty of not less than $2,500 and not more
than $15,000 for each occurrence of substantiated abuse that resulted in the
death, serious injury, rape, or sexual abuse of a resident. The civil penalty
may not exceed $40,000 for all violations occurring in a single facility within
any 90-day period.
(a) To impose this civil
penalty, the Department must establish all of the following:
(A) The abuse arose from deliberate, or other
than accidental action or inaction;
(B) The conduct resulting in the abuse was
likely to cause a negative outcome by a person with a duty of care toward a
resident of a facility; and
(C) The
abuse resulted in the serious injury, rape, sexual abuse, or death of a
resident.
(b) For
purposes of this civil penalty, the following definitions apply:
(A) "Negative Outcome" includes serious
injury, rape, sexual abuse, or death.
(B) "Serious injury" means a physical injury
that creates a substantial risk of death or that causes serious and protracted
disfigurement, protracted impairment of health, or protracted loss or
impairment of the function of any bodily organ.
(C) "Rape" means rape in the first degree as
defined in ORS 163.375, rape in the second
degree as defined in ORS
163.365, and rape in the third
degree as defined in ORS
163.355.
(D) "Sexual Abuse" means any form of sexual
contact between an employee of a residential care facility or a person
providing services in the facility and a resident of that facility, including,
but not limited to:
(i) Sodomy.
(ii) Sexual coercion.
(iii) Taking sexually explicit
photographs.
(iv) Sexual
harassment.
(9) ADMINISTRATOR SANCTIONS - NURSING
FACILITY CLOSURES. Any individual who is or was the administrator of a facility
and fails or failed to comply with the requirements at OAR
411-085-0025(2)(d)(e)(f)(h),
OAR 411-085-0025(3)(a),
or OAR 411-088-0070(1)(g), (3)(d), or
(4):
(a) Is
subject to a civil monetary penalty as follows:
(A) A minimum of $500 for the first
offense;
(B) A minimum of $1,500
for the second offense; and
(C) A
minimum of $3,000 for the third and subsequent offenses.
(b) May be subject to exclusion from
participation in any Federal health care program as defined in section 1128B(f)
of the Patient Protection and Affordable Care Act; and
(c) Is subject to any other penalties that
may be prescribed by law.
(10) A notice of civil penalty shall be sent
by registered or certified mail and shall include:
(a) A reference to the specific sections of
the statute, rule, standard, or order involved.
(b) A short and plain statement of the
matters asserted or charged.
(c) A
statement of the amount of the penalty or penalties imposed.
(d) A statement of the party's right to
request a hearing.
(e) A
description of specific remediation the facility must make in order to achieve
substantial compliance.
(f) A
statement specifying the amount of time for the elimination of the violation.
(A) The time specified shall not exceed 30
calendar days after the first notice of a violation; or
(B) In cases where the violation requires
more than 30 days to correct, a reasonable time shall be specified in a plan of
correction, as found acceptable by the Director.
(11) For a level 2 or level 3 violation, the
Department shall hold in abeyance the penalty proposed for the period of time
specified in the Notice pursuant to subsection (10)(f) above.
(12) Hearing Requests. The person to whom the
notice is addressed shall have 10 calendar days from the date specified in the
Notice pursuant to subsection (10)(f) above to make written application for a
hearing before the Department.
(13)
All hearings shall be conducted pursuant to the applicable provisions of ORS
chapter 183.
(14) If the person
notified fails to request a hearing within the time specified in the notice, an
order may be entered by the Department assessing a civil penalty.
(15) If, after a hearing, the Department
prevails, an order may be entered by the Department assessing a civil
penalty.
(16) A civil penalty
imposed by the Department shall be remitted or reduced in a manner consistent
with the public health and safety, as follows:
(a) The Department shall reduce the penalty
by not less than 25 percent if the facility self-reports abuse that results in
less than serious harm.
(b) The
Department shall withdraw some or all of the penalty if the facility achieves
substantial compliance for a level 2 or 3 violation.
(17) If the order is not appealed, the amount
of the penalty is payable within 10 calendar days after the order is entered.
If the order is appealed and is sustained, the amount of the penalty is payable
within 10 calendar days after the court decision. The order, if not appealed or
sustained on appeal, shall constitute a judgment and may be filed in accordance
with the provisions of ORS
18.005 to
18.428. Execution may be issued
upon the order in the same manner as execution upon a judgment of a court of
record.
(18) A violation of any
general order or final order pertaining to a nursing facility issued by the
Department, other than a Level 1 violation, is subject to a civil
penalty.
(19) Judicial review of
civil penalties imposed under ORS
441.710 shall be as provided
under ORS 183.480, except the court may,
in its discretion, reduce the amount of the penalty.
(20) PAYMENT TO BE CONSIDERED ADMISSION OF
VIOLATION. Unless the Department agrees otherwise, for purposes of history of
the facility, any payment of a civil penalty is treated by the Department as a
violation of the statutes or rules alleged in the civil penalty notice for
which the civil penalty was paid.
(21) All penalties recovered are deposited in
the Quality Care Fund.
Notes
Tables referenced are not included in rule text. Click here for PDF copy of table(s).
Statutory/Other Authority: ORS 441.615, 441.637, 441.710, 441.715 & 441.990
Statutes/Other Implemented: ORS 410.070, 441.055, 441.615, 441.637, 441.715 & 441.990
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