Or. Admin. Code § 411-034-0040 - Employer-Employee Relationship

(1) EMPLOYER RESPONSIBILITIES. An individual or the individual's representative must demonstrate the ability to:

(a) Locate, screen, and hire a qualified HCW or employ an IHCA;

(b) Supervise and train a HCW;

(c) Schedule work, leave, and coverage;

(d) Track the hours worked and verify the authorized hours completed by a provider;

(e) Recognize, discuss, and attempt to correct any performance deficiencies with the HCW or IHCA and provide appropriate, progressive, disciplinary action as needed; and

(f) Discharge an unsatisfactory provider.

(g) Abide by federal and state laws related to employer responsibilities, including ensuring the employee is not harassed.

(2) An eligible individual exercises control as the employer and directs the provider in the provision of the services. An individual who is unable or unwilling to act as an employer may select a licensed In-Home Care Agency (IHCA) who is enrolled as a Medicaid provider.

(3) The Department makes payment for State Plan personal care services to the provider on an individual's behalf. Payment for services is not guaranteed until the Department has verified that an individual's provider meets the qualifications in OAR chapter 418, division 020 or for an in-home care agency in chapter 411, division 033.

(4) ENDING CONSUMER-EMPLOYER RELATIONSHIP. Termination and the grounds for termination of employment are determined by an individual or the individual's representative. An individual has the right to terminate an employment relationship with a provider at any time and for any reason. An individual or the individual's representative must establish an employment agreement at the time of hire. The employment agreement may include grounds for dismissal, notice of resignation, work scheduling, and absence reporting.

(5) REPRESENTATIVE.

(a) The Department may require that an individual obtain a representative to act as the consumer-employer for service planning purposes.

(b) The Department, or the Department's designee, may deny an individual's request for any representative if the representative has a history of a substantiated adult protective service complaint as described in OAR chapter 411, division 020.

(c) The individual may select another representative.

(d) An individual with a guardian must have a representative to act as the consumer-employer and for service planning purposes. A guardian may designate themselves as the representative.

(e) A representative may not be a paid caregiver for the individual they are representing.

Notes

Or. Admin. Code § 411-034-0040

SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13; APD 22-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 03/29/2018; APD 8-2018, amend filed 03/28/2018, effective 3/29/2018; APD 28-2022, temporary amend filed 06/22/2022, effective 7/1/2022 through 12/27/2022; APD 57-2022, amend filed 12/22/2022, effective 12/23/2022

Statutory/Other Authority: ORS 409.050 & 410.070

Statutes/Other Implemented: ORS 410.020, 410.070, 410.608, 410.710 & 411.159