Or. Admin. R. 411-360-0260 - Civil Penalties
(1) A civil
penalty of not less than $100 and not more than $250 per violation, except as
otherwise provided in this rule, is imposed on a licensee for a general
violation of these rules.
(2) A
civil penalty of up to $500, unless otherwise required by law, is imposed for
falsifying individual or AFH-DD records or causing another to falsify
individual or AFH-DD records.
(3) A
civil penalty of $250 is imposed on a licensee for failure to have either the
provider, resident manager, or other qualified caregiver on duty 24 hours per
day in the AFH-DD per ORS
443.725(3),
unless permitted under OAR
411-360-0180(5).
(4) A civil penalty of $250 is imposed for
dismantling or removing the battery from any required smoke alarm or failing to
install any required smoke alarm.
(5) A civil penalty of not less than $250 and
not more than $500, unless otherwise required by law, is imposed on a licensee
who admits knowing that the care or service needs of an individual exceed the
license classification of the AFH-DD if the admission places the individual or
other individuals at grave risk of harm.
(6) Civil penalties of up to $1,000 per
occurrence may be assessed for substantiated abuse.
(7) If the Department conducts an abuse
investigation and the substantiated abuse resulted in the death, serious
injury, rape, or sexual abuse of an individual, a civil penalty of not less
than $2,500 is imposed for each violation.
(a) To impose the civil penalty in section
(7) of this rule, the Department must establish that:
(A) The abuse arose from deliberate or other
than accidental action or inaction;
(B) The conduct resulting in the abuse was
likely to cause death, serious injury, rape, or sexual abuse of an individual;
and
(C) The person with the
substantiated finding of abuse had a duty of care and services toward the
individual.
(b) For the
purpose of the civil penalty in section (7) of this rule, the following
definitions apply:
(A) "Serious injury" means
a physical injury that creates a substantial risk of death or that causes
serious disfigurement, prolonged impairment of health, or prolonged loss or
impairment of the function of any bodily organ.
(B) "Rape" means rape in the first, second,
or third degree as described in ORS
163.355,
163.365, and
163.375.
(C) "Sexual abuse" means any form of
nonconsensual sexual contact including, but not limited to, unwanted or
inappropriate touching, sodomy, sexual coercion, sexually explicit
photographing, or sexual harassment. The sexual contact must be in the form of
any touching of the sexual or other intimate parts of a person or causing such
person to touch the sexual or other intimate parts of the actor for the purpose
of arousing or gratifying the sexual desire of either party.
(D) "Other than accidental" means failure on
the part of the licensee, employees, agents, or volunteers for whose conduct
licensee is responsible, to comply with applicable Oregon Administrative
Rules.
(8) In
addition to any other liability or penalty, the Department may impose a civil
penalty for any of the following:
(a)
Operating the AFH-DD without a license;
(b) The number of individuals exceeds the
licensed capacity for the AFH-DD;
(c) The licensee fails to achieve
satisfactory compliance with the requirements of these rules within the time
specified or fails to maintain such compliance;
(d) The AFH-DD is unable to provide an
adequate level of care and services to support individuals in the
AFH-DD;
(e) There is retaliation or
discrimination against an individual, family member, employee, or any other
person for making a complaint against the AFH-DD;
(f) The licensee fails to cooperate with the
Department, physician, registered nurse, or other health care provider in
carrying out the ISP or Service Agreement for an individual;
(g) The licensee fails to obtain an approved
background check from the Department on a subject individual as defined in OAR
411-360-0020 prior to the
subject individual operating, working, training in, or residing in an
AFH-DD;
(h) Violations are found on
two consecutive inspections of an AFH-DD after a reasonable amount of time
prescribed for elimination of the violations has passed; or
(i) Violations other than those involving the
health, safety, or welfare of an individual if the licensee fails to correct
the violation as required when a reasonable timeframe for correction was
given.
(9) In imposing a
civil penalty pursuant to this rule, except for a civil penalty imposed
pursuant to section (7) of this rule, the following factors are considered by
the Department:
(a) The past history of the
licensee incurring a civil penalty in taking all feasible steps or procedures
necessary or appropriate to correct any violation;
(b) Any prior violations of statutes or rules
pertaining to AFH-DD;
(c) The
economic and financial conditions of the licensee incurring the civil penalty;
and
(d) The immediacy and extent to
which the violation threatens or threatened the health, safety, and welfare of
the individuals.
(10)
The notice of civil penalty is delivered in person or sent by registered or
certified mail and includes:
(a) A reference
to the particular sections of the statute, rule, standard, or order
involved;
(b) A short and plain
statement of the matter asserted or charged;
(c) A statement of the amount of the civil
penalty or penalties imposed; and
(d) A statement of the right of the licensee
to request a contested case hearing.
(11) The licensee has10 calendar days after
the receipt of the notice of civil penalty in which to make a written
application for a contested case hearing before the Department. A final order
by default is issued by the Department if a written request for a contested
case hearing is not timely received.
(12) All contested case hearings are
conducted pursuant to the applicable provisions of ORS chapter 183.
(13) Except as may be prohibited by state
law, a civil penalty imposed under ORS
443.455 or
441.710 may be remitted or
reduced upon such terms and conditions as the Director of the Department
considers proper and consistent with individual health and safety.
(14) If a final order is not appealed, the
amount of the civil penalty is payable within 10 days after the final order is
entered. If the final order is appealed and is sustained, the amount of the
civil penalty is payable within 10 days after the court decision. The final
order, if not appealed or sustained on appeal, constitutes a judgment and may
be filed in accordance with provisions of ORS Chapter 18. Execution may be
issued upon the order in the same manner as execution upon a judgment of a
court of record.
(15) A violation
of any general order or final order pertaining to an AFH-DD issued by the
Department is subject to a civil penalty in the amount of not less than $5 and
not more than $500 for each and every violation.
(16) Judicial review of civil penalties
imposed under ORS 441.710 is provided under ORS
183.480, except that the court
may, in its discretion, reduce the amount of the penalty.
(17) All penalties recovered under ORS
443.455 and
441.710 to
441.740 are to be paid into the
Quality Care Fund.
Notes
Statutory/Other Authority: ORS 409.050, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.765, 443.767, 443.775 & 443.790
Statutes/Other Implemented: ORS 443.705 - 443.825
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