(1) Purpose. The
purpose of this rule is to protect nursing facility residents and prospective
residents from threats to their health, safety, and welfare, and to help ensure
the attention of facilities with serious deficiencies is directed toward
correcting those deficiencies.
For the purpose of these rules, the following definitions apply:
(a) "Immediate Jeopardy" means a situation in
which the failure of a nursing facility to comply with a rule of the Department
has caused or is likely to cause serious injury, serious harm, serious
impairment, or death to a resident.
(b) "Substantial Compliance" means a level of
compliance with state law and with rules of the Department such that any
identified deficiencies pose no actual harm or no more than potential for minor
harm to the health or safety of residents of a facility.
(3) The Department may impose a condition on
the license of a nursing facility in response to a substantiated finding of
rule violation, including, but not limited to a substantiated finding of abuse,
or in response to a finding of immediate jeopardy, whether or not the finding
of immediate jeopardy is substantiated at the time the license condition is
(4) The Department shall
immediately remove the license condition if the finding of immediate jeopardy
is not substantiated within 30 calendar days after the imposition of the
may be attached to a license upon a finding that:
(a) Information on the application or
inspection requires a condition to protect the health and safety of
(b) There exists a
threat to the health, safety, and welfare of a resident;
(c) There is reliable evidence of abuse,
neglect, or exploitation; or
The facility is not being operated in compliance with these rules.
Conditions that may be imposed
on a licensee include, but are not limited to:
(a) Restricting the total number of
(b) Restricting the
number and impairment level of residents based upon the capacity of the
licensee and staff to meet the health and safety needs of all
(c) Requiring additional
staff or staff qualifications;
Requiring additional training for staff;
(e) Requiring additional documentation;
(f) Restriction on admissions,
if the Department makes a finding of immediate jeopardy that is likely to
present an immediate jeopardy to future residents upon admission.
NOTICE OF IMPENDING IMPOSITION
OF LICENSE CONDITION.
Except where the
threat to residents is so imminent the Department determines it is not safe or
practical to give the facility advance notice, the Department shall provide the
licensee with a Notice of Impending Imposition of License Condition (Notice) at
least 48 hours prior to issuing an Order Imposing License Condition (Order).
The Notice may be provided in writing, sent by certified or registered mail to
the licensee, or provided orally in person or by telephone to the licensee or
to the person represented by facility staff to be in charge at the facility.
When the Notice is delivered orally, the Department must subsequently provide
written notice to the licensee by registered or certified mail. The Notice
Describe the acts or omissions of
the licensee that support the imposition of the license condition and the
circumstances that led to the substantiated finding of a rule violation,
including, but not limited to:
substantiated finding of abuse.
(ii) A finding of immediate
why the acts or omissions and the circumstances create a situation for which
the imposition of a license condition is warranted.
(C) Provide a brief statement identifying the
nature of the impending condition.
(D) Provide a brief statement describing how
the license condition is designed to remediate the circumstances that lead to
the license condition.
a brief statement of the requirements for withdrawal of the license
(F) Identify a person at
the Department whom the licensee may contact and who is authorized to enter the
Order or to make recommendations regarding issuance of the Order.
(G) Specify the date and time an informal
conference will be held, if requested by the licensee.
(H) Specify the date and time the Order will
(b) If the
threat to residents of a facility is so imminent the Department determines it
is not safe or practical to give the facility advance notice of a license
condition, the Department must provide the notice required under section (7)(a)
within 48 hours after issuing an order imposing the license
CONFERENCE. If an informal conference is requested, the conference will be held
at a location designated by the Department. If determined to be appropriate by
the Department, the conference may be held by telephone.
(a) With Notice. If a Notice of Impending
License Condition is issued, the licensee must be provided with an opportunity
for an informal conference to object to the Department's proposed action before
the license condition is scheduled to take effect. The Order Imposing License
Condition may be issued at any time after the informal conference.
(b) Without Notice. If an Order Imposing
License Condition is issued without a prior Notice of Impending License
Condition, the licensee may request an immediate informal conference to object
to the Department's action.
ORDER IMPOSING LICENSE CONDITION.
(a) When an Order Imposing License Condition
(Order) is issued, the Department must serve the Order to the licensee either
personally or by registered or certified mail.
The Order must include the following
(A) The authority under which the
condition is being issued.
reference to the specific sections of the statute and administrative rules
(C) The effective date of
(D) A short and
plain statement of the matters asserted or charged.
(E) The specific terms of the license
(F) A specific
description of how the scope and manner of the license condition is designed to
remediate the circumstances that lead to the license condition.
(G) A specific description of the
requirements for withdrawal of the license condition.
(H) Statement of the licensee's right to
request a hearing.
(I) That the
licensee may elect to be represented by counsel and to respond and present
evidence and argument on all issues involved. If the licensee is to be
represented by counsel, the licensee must notify the Department.
(J) That, if a request for hearing is not
received by the Department within 21 calendar days from the date of the Order,
the licensee has waived the right to a hearing under ORS chapter 183.
(K) Findings of specific acts or omissions of
the licensee that are grounds for the license condition, and the reasons these
acts or omissions create a situation for which the imposition of a license
condition is warranted.
the Department may combine the hearing on the Order with any other Department
proceeding affecting the licensee. The procedures for the combined proceeding
must be those applicable to the other proceedings affecting the
Posting of Admission Restriction Order. A licensee who has been ordered to
restrict admissions to a facility shall immediately post a "Restriction of
Admissions Notice" on both the inside and outside faces of each door of the
facility through which any person may enter or exit the facility. Such public
notices shall be provided by the Department. The notices shall not be removed,
altered, or obscured until the restriction has been lifted by the Department.
Removal of the notice without the Department's authorization is a Class C
(a) Right to Hearing. If the Department
imposes an Order, the licensee is entitled to a contested case hearing pursuant
to ORS chapter 183.
Request. The Department must receive the licensee's request for a hearing
within 21 calendar days of the date of the Order. If a request for hearing is
not received by the Department within 21 calendar days of the date of the
Order, the licensee will have waived the right to a hearing under ORS chapter
(c) A licensee's request for a
hearing does not delay enforcement.
(d) Date of Hearing. When a timely request
for hearing is received, the hearing shall be held as soon as
(e) Consolidation. If a
request for hearing is received on an Order, and a subsequent Order is issued,
the Department may consolidate the Orders into a single contested case
At the hearing, the
Department shall consider the facts and the circumstances including, but not
(A) Whether at the time of the
issuance of the restriction there was probable cause from evidence available to
the Department to believe there were grounds for the Admission Restriction
(B) Whether the acts or
omissions of the licensee posed an immediate threat to resident health and
(C) Whether changed
circumstances, including implementation of effective systems to help ensure
deficiencies causing the restriction do not recur, eliminate the need for
continuing the restriction; and
Whether the agency followed the appropriate procedures in issuing the
REQUEST FOR REINSPECTION OR
Assertion of substantial
compliance: Following the Order Imposing License Condition (Order) on a
facility, the Department shall:
(A) Within 15
business days of receiving the facility's written assertion of substantial
compliance and request for reinspection, the Department shall reinspect or
reevaluate the facility to determine if the facility has achieved substantial
(B) Notify the facility
by telephone or electronic means of the findings of the reinspection or
reevaluation within five business days after completion of the reinspection or
(C) Issue a written
report to the facility within 30 business days after the reinspection or
reevaluation notifying the facility of the Department's
the Department finds the facility has achieved substantial compliance and that
systems are in place to ensure similar deficiencies do not reoccur, the
Department shall withdraw the Order.
If after reinspection or reevaluation,
the Department determines the violation continues to exist, the Department may
not withdraw the Order and is not obligated to reinspect or reevaluate the
facility again for at least 45 business days after the first reinspection or
(A) The Department shall
provide the facility notice of the decision not to withdraw the Order in
(B) The notice shall
inform the facility of the right to a contested case hearing pursuant to ORS
(d) If the
Department does not meet the requirements of this section, a license condition
is automatically removed on the date the Department failed to meet the
requirements of this section, unless the Director extends the applicable period
for no more than 15 business days. The Director may not delegate the power to
make a determination regarding an extension under this paragraph.
(e) Nothing in this section limits the
Department's authority to visit or inspect the facility at any time.
(13) Exceptions to Admission
Restriction Order. While an Admission Restriction Order is in place, the
Department, in its sole discretion, may authorize the facility to admit former
residents with a right of return or right of readmission. The Department, in
its sole discretion, may also authorize the facility to admit new residents for
whom the Department determines that alternate placement is not