Or. Admin. Code § 411-054-0110 - Conditions
(1) The Department
may impose a condition on the license of a residential care or assisted living
facility in response to a substantiated finding of rule violation, including,
but not limited to a substantiated finding of abuse. A condition shall be
imposed 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 imposed.
(2) 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 license condition.
(3) Conditions that may be imposed on a
licensee include, but are not limited to:
(a)
Restricting the total number of residents;
(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 residents;
(c) Requiring additional staff or staff
qualifications;
(d) Requiring
additional training for staff;
(e)
Requiring additional documentation; or
(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.
(4) IMPENDING IMPOSITION OF LICENSE
CONDITION.
(a) Except where the threat to
residents is so imminent that 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
must:
(A) 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, a:
(i)
Substantiated finding of abuse.
(ii) Finding of immediate jeopardy.
(B) Describe why the acts or
omissions and the circumstances create a situation for which the imposition of
a 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 condition.
(E) Provide a brief statement of the
requirements for withdrawal of the condition.
(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
take effect.
(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 (5)(a)
within 48 hours after issuing an order imposing the license
condition.
(5) INFORMAL
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.
(6) 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.
(b) The Order must include the following
statements:
(A) The authority under which the
condition is being issued.
(B) A
reference to the specific sections of the statute and administrative rules
involved.
(C) The effective date of
the condition.
(D) A short and
plain statement of the matters asserted or charged.
(E) The specific terms of the license
condition.
(F) A specific
description of how the scope and manner of the license condition is designed to
remediate the findings 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 the
acts or omissions create a situation for which the imposition of a license
condition is warranted.
(L) That
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
license.
(7)
A licensee who has been ordered to restrict admissions to a facility must
immediately post a "Restriction of Admissions Notice" that is provided by the
Department, on both the inside and outside faces of each door of the facility
through which any person enters or exits a facility. The notices must not be
removed, altered or obscured until the Department has lifted the restriction or
the restriction is automatically removed pursuant to subsection (10)(d) of this
rule.
(8) HEARING.
(a) Right to Hearing. If the Department
imposes an Order, the licensee is entitled to a contested case hearing pursuant
to ORS chapter 183.
(b) Hearing
Request. The Department must receive the licensee's request for a hearing
within 21 calendar days of the date of 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
183.
(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
practical.
(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
hearing.
(9) REQUEST FOR
REINSPECTION OR REEVALUATION.
(a) Assertion of
substantial compliance. Following the 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
compliance.
(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
reevaluation.
(C) Issue a written
report to the facility within 30 business days after the reinspection or
reevaluation notifying the facility of the Department's
determinations.
(b) If
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.
(c) 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
reevaluation.
(A) The Department shall provide
the facility notice of the decision not to withdraw the Order in
writing.
(B) The notice shall
inform the facility of the right to a contested case hearing pursuant to ORS
chapter 183.
(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.
(10) EXCEPTIONS TO ORDER IMPOSING
LICENSE CONDITION. When a restriction of admissions is in effect pursuant to an
Order, the Department, in its sole discretion, may authorize the facility to
admit new residents for whom the Department determines that alternate placement
is not feasible.
(11) Conditions
may be imposed for the duration of the licensure period (two years) or limited
to some other shorter period of time. If the condition corresponds to the
licensing period, the reasons for the condition will be considered at the time
of renewal to determine if the conditions are still appropriate. The effective
date and expiration date of the condition will be indicated on the attachment
to the license.
Notes
Statutory/Other Authority: ORS 183, 410.070 & 443.450
Statutes/Other Implemented: ORS 183, 443.400 - 443.455 & 443.991
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