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.
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
unless permitted under OAR 411-360-0180
(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.
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.
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;
(C) The person with the
substantiated finding of abuse had a duty of care and services toward the
purpose of the civil penalty in section (7) of this rule, the following
(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
(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
addition to any other liability or penalty, the Department may impose a civil
penalty for any of the following:
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
(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;
The licensee fails to obtain an approved
background check from the Department on a subject individual as defined in OAR
prior to the subject individual operating, working, training in,
or residing in an AFH-DD;
Violations are found on two consecutive inspections of an AFH-DD after a
reasonable amount of time prescribed for elimination of the violations has
(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.
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;
economic and financial conditions of the licensee incurring the civil penalty;
(d) The immediacy and extent to
which the violation threatens or threatened the health, safety, and welfare of
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
(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
may be remitted or reduced upon such terms and conditions as the Director of
the Department considers proper and consistent with individual health and
(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.
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
is provided under ORS
except that the court may, in its discretion, reduce the amount of the
(17) All penalties
recovered under ORS
441.740 are to be
paid into the Quality Care Fund.