Or. Admin. Code § 411-049-0160 - Variances
(1) An applicant,
licensee, or administrator may request a variance to the provisions of these
rules. The variance request must be in writing and must include clear and
convincing evidence that:
(a) The requested
variance does not jeopardize the care, health, welfare, or safety of the
residents;
(b) All of the
residents' needs shall be met; and
(c) All residents, in addition to other
occupants in the home, may be evacuated in three minutes or less.
(2) VARIANCES NOT ALLOWED. Except
for section (1) of this rule, no variance shall be granted by the LLA from a
regulation or provision of the rules pertaining to:
(a) Resident capacity as described in OAR
411-049-0105.
(b) Minimum age of licensee and any
caregivers as described in OAR
411-049-0125, except as stated
in OAR 411-049-0150(3).
(c) The training requirements of a licensee
and all other caregivers, except as allowed for:
(A) Provisional licenses as described in OAR
411-049-0105(14)(b);
(B) When a substitute caregiver holds an
Oregon health care professional license as described in OAR
411-049-0125; or
(C) A licensee designated as a corporate
entity must obtain a variance to the training requirements as described in OAR
411-049-0125(2)(a)
- (2)(g).
(d) Standards
and practices for care and services as described in OAR chapter 411, division
51.
(e) In-person inspections of
the facility as described in OAR
411-052-0005.
(f) Background checks as described in OAR
411-049-0120.
(3) The LLA shall not grant a
variance request to any rule that is inconsistent with Oregon Revised Statutes
or 42 CFR
441.301(c)(2) (xiii) and
42 CFR
441.530(a)(1)(vi) (See OAR
411-049-0160(4)).
(4) The LLA shall not grant a variance
request related to fire and life safety without prior consultation with the
Department.
(5) In deciding to
grant a variance, the LLA must consider the licensee's history of compliance
with rules governing AFHs or other long-term care facilities for adults who are
older or adults with physical disabilities in Oregon and any other
jurisdiction, if appropriate. The LLA must determine that the variance is
consistent with the intent and purpose of these rules before granting the
variance. The LLA must respond, in writing, within 30 days of receiving a
request for a variance. The written response must include the frequency of
renewal.
(6) A variance is not
effective until granted in writing by the LLA. Variances are reviewed pursuant
to these rules. If applicable, the licensee must re-apply for a variance at the
time of license renewal, or more often if determined necessary by the
LLA.
(7) In seeking a variance, the
burden of proof that the requirements of these rules have been met is upon the
applicant or licensee.
(8) If a
variance to any provision of these rules is denied, the applicant or licensee
may request a meeting with the LLA.
Notes
Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 441.122, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775 & 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 441.116, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
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