Or. Admin. Code § 407-007-0279 - Federal Mandatory Exclusions
(1) Mandatory exclusions under
42 USC
1320a-7(a) (Exclusion of
certain individuals and entities from participation in Medicare and State
health programs) may result in ineligibility for an SI if the convictions or
conditions meet certain time frames or criteria in
42 USC
1320a-7(c).
(a) Section (1) of this rule applies to an SI
who is or seeks to be:
(A) A home care worker
or personal support worker as defined in ORS
410.600; or
(B) Works for or seeks to work for:
(i) A residential facility as defined in ORS
443.400 that receives Medicare
or state health care funds;
(ii) An
in-home care agency as defined in ORS
443.005 that receives Medicare
or state health care funds;
(iii) A
home health agency as defined in ORS
443.005 that receives Medicare
or state health care funds;
(iv) A
nursing facility licensed by the Department in accordance with OAR chapter 411
division 85;
(v) An assisted living
facility or a residential care facility licensed by the Department in
accordance with OAR chapter 411 division 54;
(vi) A personnel or staffing agency providing
staff to a nursing facility, assisted living facility, or residential care
facility licensed by the Department as listed in this subsection;
(vii) An adult foster home licensed by the
Department or Authority, or licensed locally under the direction of the
Department or Authority.
(viii) Any
other QE determined by the Department or Authority to have a federal
requirement for an OIG check.
(b) Indication that an individual has an
exclusion can be determined by searching the OIG's List of Excluded
Individuals. This exclusion list is available to QEDs when initiating and
before submitting background check requests through ORCHARDS.
(c) If a QED or BCU determines that an
individual subject to this rule has an exclusion listed in
42 USC
1320a-7:
(A)
The QED withdraws the background check application before submitting it because
the SI is not elegible for the position; or
(B) BCU must make the determination of
ineligibility due to mandatory exclusion.
(d) Convictions or conditions requiring
mandatory exclusion include but are not limited to:
(A) Convictions related to the delivery of
Medicare or State health care program services.
(B) Convictions related to the abuse of a
client or patient.
(C) Felony
convictions related to health care fraud.
(D) Felony convictions related to the
manufacture, delivery, prescription or dispensing of a controlled
substance.
(e) When
checking for a background check application, a QED or BCU can consider an SI
has having a mandatory exclusion if the SI is verified using his or her Social
Security Number. Unless the mandatory exclusion has been rescinded under
federal directive and the SI is no longer showing on the Office of the
Inspector General's (OIG's) Exclusion list, an SI remains ineligible for the
following periods of time:
(A) The minimum
period of exclusion is not less than five years from the date of
conviction;
(B) If the SI's
mandatory exclusion is based on a conviction occurring on or after August 5,
1997 and the SI has on one previous occasion one or more convictions which are
also mandatory exclusions, the minimum period of exclusion is not less than 10
years from the date of conviction; or
(C) If the SI's mandatory exclusion is based
on a conviction occurring on or after August 5, 1997 and the SI has on two or
more previous occasions one or more convictions which are also mandatory
exclusions, the minimum period of exclusion is permanent.
(f) Under OAR
125-007-0260(2)(d),
the determination of ineligibility due to mandatory exclusion is considered an
incomplete fitness determination. A fitness determination with a weighing test
is not required regardless of any other potentially disqualifying convictions
and conditions the SI has. When a background check results in an incomplete
fitness determination, the SI shall not be allowed to work, volunteer, be
employed, or otherwise perform in the position listed on the background check
request. An incomplete fitness determination must result in immediate
termination, dismissal, or removal of the SI.
(g) A determination of ineligibility due to
mandatory exclusion is subject to appeal rights only if allowed under
42 UCS
1320a-7(g).
(h) If the SI no longer appears on the OIG's
List of Excluded Individuals, the SI is subject to a fitness determination
under OAR 125-007-0260 and
407-007-0320.
(2) Convictions and conditions
under 42 USC
12645g (Criminal history checks under the
National and Community Service State Grant Program) result ineligibility for an
SI.
(a) Section (2) of this rule applies to
an SI who works or seeks to work as an employee, volunteer, or contractor under
the National and Community Service Act of 1990 as amended by the Serve America
Act, including participants and employees in:
(A) Americorps;
(B) Foster Grandparents;
(C) Senior Companions; or
(D) Any other programs funded under national
service laws.
(b) If BCU
determines that an individual is subject to this rule and has an exclusion
listed in 42 USC
12645g, BCU must make the determination of
ineligibility due to mandatory exclusion. Exclusions include:
(A) Listing on, or requirement to be listed
on, a sex offender registry;
(B)
Conviction for murder.
(C) Refusal
to complete the background check.
(D) False statement by the SI in connection
with criminal history disclosure, specifically intentionally providing false
information impacting the ability to conduct the background check, such as:
(i) A false name;
(ii) A government-issued identification
belonging to another person;
(iii)
A false identification; or
(iv)
Fingerprints of another person.
(c) Under OAR
125-007-0260(2)(d),
a determination of ineligibility due to mandatory exclusion is considered an
incomplete fitness determination. A fitness determination with a weighing test
is not required regardless of whether the SI has any other potentially
disqualifying convictions and conditions. When a background check results in an
incomplete fitness determination, the SI must not be allowed to work,
volunteer, be employed, or otherwise perform in the position listed on the
background check request. An incomplete fitness determination must result in
immediate termination, dismissal, or removal of the SI.
(d) A determination of ineligibility due to
mandatory exclusion is not subject to appeal rights under OAR
125-007-0300,
407-007-0330, or
943-007-0501.
(3) Prohibitions under
42 USC
671(a)(20) under the State
Plan for Foster Care and Adoption Assistance result in ineligibility for an SI.
(a) Section (3) of this rule applies to the
following SIs:
(A) An SI who is an employee of
a QE which is subject to Section 471(a)(20)(D) of the federal 2018 Family First
Prevention Services Act and which receives title IV-E funds; and
(B) For child foster homes licensed by the
Department's DD programs, or child foster or adoptive homes governed by OAR
chapter 419 division 400 and the federal 2006 Adam Walsh Act:
(i) A foster parent or proctor foster
parent;
(ii) An adoptive parent
applicant or an approved adoptive parent;
(iii) A household member in an adoptive or
foster home 18 years of age and over;
(iv) A household member in an adoptive or
foster home under 18 years of age if there is reason to believe that the
household member may pose a risk to children placed in the home.
(b) If BCU determines
that an individual is subject to this rule and has an exclusion listed in
42 USC
671(a)(20)(A), BCU mustmake
the determination of ineligibility due to mandatory exclusion. Exclusions
include:
(A) Felony conviction consisting of:
(i) Child abuse or neglect;
(ii) Spousal abuse;
(iii) A crime against children (including
child pornography);
(iv) A crime
involving violence, including rape, sexual assault, or homicide, but not
including other physical assault or battery;
(B) If, within five years from the date of
the final decision, a felony conviction of:
(i) Physical assault or battery; or
(ii) A drug-related offense.
(c) Under OAR
125-007-0260(2)(d),
the determination of ineligibility due to mandatory exclusion is considered an
incomplete fitness determination. A fitness determination with a weighing test
is not required regardless of any other potentially disqualifying crimes or
conditions the SI has. When a background check results in an incomplete fitness
determination, the SI must not be allowed to work, volunteer, be employed, or
otherwise perform in the position listed on the background check request. An
incomplete fitness determination must result in immediate termination,
dismissal, or removal of the SI.
(d) A determination of ineligibility due to
mandatory exclusion is not subject to appeal rights under OAR
125-007-0300 or
943-007-0501.
Notes
Statutory/Other Authority: ORS 181A.195 & 409.050
Statutes/Other Implemented: ORS 181A.195
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