Or. Admin. R. 411-375-0055 - Standards for Common Law Employers for Personal Support Workers
(1) A common law
employer is required when a personal support worker is selected by an
individual, or as applicable their legal or designated representative, to
deliver supports. Only one common law employer is permitted to be the employer
for all personal support workers delivering services to an
individual.
(2) The Department,
provider agencies, or case management entities may not act as the common law
employer for a personal support worker.
(3) The relationship between a personal
support worker and an individual, or their designated common law employer, is
an employee and employer relationship.
(4) Common law employers do not qualify for
any benefits including, but not limited to, financial compensation.
(5) COMMON LAW EMPLOYER REQUIREMENTS.
(a) Common law employers may be one of the
following:
(A) The individual.
(B) The legal or designated representative of
the individual.
(C) A person who is
designated by the individual, or as applicable their legal or designated
representative, to act as the designated common law employer on behalf of the
individual.
(i) A designated common law
employer or proxy must sign a Department-approved form affirming the designated
common law employer or proxy is able to fulfill the responsibilities, or
responsibilities delegated to them, as outlined in subsection (b) of this
section.
(ii) A designated common
law employer must not have any of the following:
(I) A history of substantiated abuse of an
adult as described in OAR 407-045-0250 through 407-045-0370.
(II) A history of substantiated abuse of an
adult as described in OAR chapter 411, division 020.
(III) A history of founded abuse of a child
as described in ORS
419B.005.
(IV) A conviction of any crime in ORS
443.004.
(iii) A common law employer must
not currently be employed as a provider in any capacity for the individual
receiving services.
(iv) A common
law employer must meet federal and state requirements to enter into an
employment relationship.
(v) A
common law employer may not have an indictment or conviction of fraud according
to
42 CFR
455.23.
(b) Common law employers have the following
responsibilities:
(A) Locating, screening,
and hiring a qualified personal support worker.
(i) A common law employer may not
discriminate on the basis of race, color, religion, sex, gender identity,
sexual orientation, national origin, marital status, age, disability, source of
income, duration of Oregon residence, or other protected classes under federal
and Oregon Civil Rights laws.
(ii)
A common law employer may make hiring and termination decisions based on the
vaccination status of a personal support worker, including COVID-19 vaccination
status.
(B) Assisting in
developing a Service Agreement with the case management entity as
needed.
(C) Ensuring services are
delivered in accordance with the Service Agreement.
(D) Supervising and training the personal
support worker.
(E) Scheduling
work, leave, and coverage.
(F)
Tracking the hours worked and verifying the authorized hours completed by the
personal support worker.
(G)
Recognizing, discussing, and attempting to correct, with the personal support
worker, any performance deficiencies and provide appropriate and progressive
disciplinary action as needed.
(H)
Notifying the case management entity of any suspected fraud or abuse by the
personal support worker.
(I)
Discharging an unsatisfactory personal support worker.
(J) Understanding and acting upon
correspondence from the Department or the Department's contractors related to
their role as the employer.
(c) A common law employer must meet all of
the employer responsibilities described in subsection (b) of this section. By
January 1, 2021, common law employers must agree to meet the employer
responsibilities on a Department approved form.
(d) The Department or case management entity
may be required to intervene as described in section (6) of this rule when a
common law employer, proxy, or a designated common law employer has
demonstrated an inability to meet one or more of the employer responsibilities
described in subsection (b) of this section. Indicators that a common law
employer, proxy, or a designated common law employer may not be meeting one or
more of the responsibilities include, but are not limited to the following:
(A) Complaints to the case management entity
or Department from the personal support worker.
(B) Scheduling personal support workers for
more time than authorized in the Service Agreement.
(C) Scheduling multiple personal support
workers for the same time period without authorization.
(D) Approving time worked without verifying
services were delivered as described in the Service Agreement.
(E) Verifying time not actually worked by a
personal support worker.
(F)
Refusal to verify time worked by a personal support worker for services
delivered as described in the Service Agreement.
(G) Complaints to Medicaid fraud involving
the common law employer, proxy, or designated common law employer.
(H) Documented observation by the case
management entity or Department services are not being delivered as identified
in a Service Agreement.
(e) In the event an individual is unable or
unwilling to perform the duties of a common law employer and has not already
designated a common law employer, the individual, or as applicable their legal
or designated representative, must either:
(A)
Designate a proxy meeting the requirements of a designated common law employer
described in subsection (a)(C) of this section.
(i) A proxy may not be delegated all of the
responsibilities of the common law employer.
(ii) The proxy may not perform any common law
employer tasks not delegated to the proxy on a Department approved
form.
(iii) The employer
responsibilities described in section (b) of this rule must be assigned to
either the individual common law employer or the proxy on a Department approved
form. By January 1, 2021, the individual common law employer and the proxy must
agree to fulfill the assigned responsibilities on a Department approved
form.
(B) Select a
designated common law employer as outlined in subsection (a)(C) of this
section.
(f) A
designated common law employer must be able to fulfill all of the duties
outlined in subsection (b) of this section and may not utilize a
proxy.
(g) If an individual is
unable to fulfill the responsibilities of a common law employer and is unable
to select a proxy or designated common law employer who meets the requirements
outlined in subsection (a)(C) of this section, the individual may only select
services from providers who are not personal support workers.
(6) INTERVENTION.
(a) For the purposes of this rule,
"intervention" means the action the Department or the case management entity
requires when a common law employer fails to meet the responsibilities
described in section (5)(b) of this rule.
(b) Interventions may include any of the
following:
(A) A review of the employer
responsibilities described in section (5)(b) of this rule.
(B) Training related to employer
responsibilities or referral to a Department approved resource for
training.
(C) Corrective action
taken as a result of a personal support worker filing a complaint with the
Department or the case management entity.
(D) Recommending alternative designation of
common law employer responsibilities, such as a new designated common law
employer or proxy.
(c)
Any intervention initiated by the Department or the case management entity
against a common law employer designated prior to October 1, 2016 must include
the common law employer accepting, on a Department approved form, the
responsibilities outlined in section (5)(b) of this rule.
(7) REMOVAL OF COMMON LAW AND DESIGNATED
COMMON LAW EMPLOYERS AND PROXIES.
(a) The
individual, or their legal or designated representative, may remove a
designated common law employer or proxy at any time, for any reason. Such an
action by the individual, or their legal or designated representative, is not
subject to sections (7)(b) through (8) of this rule.
(b) Prior to the removal of any common law
employer, designated common law employer, or proxy by the Department or case
management entity, the Department or case management entity must intervene at
least once, as described in section (6) of this rule, unless:
(A) There is an imminent danger to the health
and safety of the individual receiving services, including any of the
following:
(i) Pending charges against or
conviction of the designated common law employer or proxy for any crime in ORS
443.004.
(ii) An open protective services case for an
allegation of abuse as defined in OAR 407-045-0260 against the designated
common law employer or proxy.
(iii)
Finding of substantiated abuse of an adult as described in OAR 407-045-0250
through 407-045-0370.
(iv) Finding
of substantiated abuse of an adult as described in OAR chapter 411, division
020.
(v) Finding of abuse of a
child as described in ORS
419B.005.
(B) There is a credible
allegation, indictment, or conviction of fraud according to
42 CFR
455.23.
(C) The common law employer has committed
fiscal improprieties.
(c) The Department or case management entity
shall remove any designated common law employer or proxy for any violation of
section (5)(a)(C)(ii) or subsection (b) of this section.
(d) Any common law employer, designated
common law employer, or proxy may be removed by the case management entity or
Department for failure to meet the responsibilities of a common law employer as
referenced in section (5)(b) after a documented intervention as outlined in
section (6) of this rule.
(e) A
common law employer, designated common law employer, or proxy, who is removed
by the case management entity or Department may not act in any capacity as a
common law employer or proxy for any individual receiving Department-funded
services effective:
(A) 30 calendar days from
the date of removal; or
(B)
Immediately if removed for reasons listed under section (5)(b) of this
rule.
(f) If a
designated common law employer or proxy is removed, the individual, or their
legal or designated representative, may select another designated common law
employer or proxy. If a designated common law employer or proxy is not selected
and the individual is unable or unwilling to serve as their own common law
employer, the individual may only select providers who are not personal support
workers.
(8)
NOTIFICATION OF DESIGNATED COMMON LAW EMPLOYER OR PROXY REMOVAL. The Department
or case management entity shall notify the designated common law employer or
proxy, the individual and their legal or designated representative (as
applicable), and any personal support workers currently employed by the
designated common law employer or proxy of the removal of the designated common
law employer or proxy.
(9) REQUEST
FOR REINSTATEMENT OF COMMON LAW EMPLOYER, DESIGNATED COMMON LAW EMPLOYER, OR
PROXY STATUS.
(a) An individual, designated
common law employer, or proxy, is eligible to request reinstatement of their
previous common law employer status if:
(A)
The common law employer was the individual; or
(B) The designated common law employer or
proxy no longer meets the criteria in section (7)(b) of this rule or is removed
under section (7)(c) of this rule and the individual or their legal or
designated representative agrees to the reinstatement.
(b) Requests for reinstatement:
(A) Must be submitted to the case management
entity.
(B) Must include evidence
of improvement in the areas for which they were removed. Evidence may include,
but is not limited to:
(i) Improvements in
health and cognitive functioning; or
(ii) Participation in a Department or case
management entity approved training plan.
(C) May be approved by the case management
entity when there is evidence of improvement in the ability to perform the
responsibilities of being a designated common law employer and the individual
agrees with the reinstatement.
(c) A request for reinstatement may not be
submitted more than once in a six-month period unless approved by the case
management entity.
Notes
Statutory/Other Authority: ORS 409.050
Statutes/Other Implemented: ORS 409.010, 410.600, 410.606-410.619 & 427.007
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