Or. Admin. Code § 411-089-0040 - Nursing Facility License Denial, Suspension, Revocation
(1) Basis for
Denial, Revocation -- Mandatory. A license shall be suspended or revoked, or
both, or denied if a certificate of noncompliance is issued by the State Fire
Marshal, Deputy, or other approved representative pursuant to ORS Chapter
479.
(2) Basis for Denial or
Revocation -- Discretionary. A license may be denied or revoked by the
Department when it finds the licensee or applicant:
(a) Failed to comply with nursing facility
law such that the health, safety, or welfare of residents is or was
jeopardized;
(b) Failed to
substantially comply with nursing facility law during any three inspections
within a five year period. For the purpose of this rule, "inspection" means an
on-site visit to the facility by the Department for licensing or
certification;
(c) Has been
convicted, under any state or federal law, of a felony or of a misdemeanor
associated with the operation of a health care facility or agency within the
preceding ten years;
(d) Had an
incident of ownership of ten percent or greater in or had a management or
control interest in any facility in any state when the facility was terminated
from participation in the Medicaid or Medicare program, or at a time when the
facility voluntarily terminated participation in the Medicaid or Medicare
program during any state or federal termination process;
(e) Had an incident of ownership of ten
percent or greater in any facility in any state that failed to reimburse any
state or the federal government for Medicaid or Medicare overpayments on a
timely basis within the preceding five year period;
(f) Had an incident of ownership of ten
percent or greater or a management or control interest in a health care
facility or agency whose license was involuntarily suspended, revoked, or not
renewed within the preceding five years;
(g) Had a nursing home administrator's
license revoked, suspended, or not renewed in any state, excluding revocation
based on failure to pay license fee or failure to maintain required continuing
education requirements when not serving as an administrator, within the
preceding five year period;
(h)
Provided false, incorrect, or misleading information to the Department on the
license application form;
(i)
Provided false, incorrect, or misleading information to the Department
regarding care of residents, facility finances, or resident funds;
(j) Failed to provide workers' compensation
coverage for health care facility employees when required by state law in any
state;
(k) Permitted, aided, or
abetted any illegal act that had a significant adverse impact on resident
health, safety, or welfare within the preceding five year period;
(l) Had an incident of ownership of ten
percent or greater in any health care facility in any state at a time when the
facility was denied an operating license, excluding denial based upon absence
of bed need;
(m) Demonstrated
fiscal instability within the preceding five years and such instability relates
to the licensee or applicant's ability to provide care or operate a facility,
or both provide care and operate a facility. Examples of fiscal instability
include, but are not limited to, experiencing more than one instance of any of
the following events or experiencing more than one of the following events:
(A) Failure to compensate employees in a
timely manner;
(B) Failure to
maintain, in any facility, an adequate inventory of medical supplies, personal
supplies, or food;
(C) Failure to
promptly pay any judgments, taxes, warrants, or other liens;
(D) Failure to pay utility bills or other
bills related to the operation or maintenance of any facility, excluding
failure to pay when the facility has a clear basis to dispute the billing;
or
(E) A poor credit
rating.
(n) Has
demonstrated fiscal instability within the past five years by having
experienced a history of poor credit or poor financial management; or
(o) Has failed to pay a civil penalty imposed
by the Department.
(p) The facility
shall not interfere with a good faith disclosure of information by an employee
or volunteer concerning the abuse or other action affecting the welfare of a
resident in the facility as described in
411-085-0360(6)(d).
(3) Notice of Intent to Revoke or
Deny. The Department's notice of its intent to deny or revoke a nursing
facility license shall include:
(a) A
statement that the licensee or applicant has a right to a contested case
hearing or a statement of the time and place of the hearing;
(b) A statement of the authority and
jurisdiction under which the hearing is to be held;
(c) A reference to the particular sections of
the statute and rules involved;
(d)
A short and plain statement of the matters asserted or charged;
(e) A statement that the licensee or
applicant is entitled to be represented by counsel and to respond and present
evidence and argument on all issues involved;
(f) A statement that the record of the
proceeding to date, including information in the Department's file or files on
the subject of the revocation or denial of the license, automatically becomes
part of the contested case record upon default for purposes of proving the
Department's prima facie case; and
(g) A statement that if the licensee or
applicant fails to request a hearing within 21 days of the date the notice of
revocation was received, or within 60 days of the date the notice of denial was
received, whichever is applicable, the licensee or applicant shall have waived
the right to a hearing.
(4) Informal Conference. When the Department
issues a notice of intent to revoke or deny a license, the licensee or
applicant shall be entitled to an informal conference to respond to the notice.
The conference shall be held before a person authorized to issue the order or
to make recommendations regarding issuance of the order. A request for an
informal conference must be received in writing by the Department within 10
days of the date the notice of the intent to revoke or deny the license was
received by the licensee or applicant. If the licensee or applicant fails to
submit a timely request for a conference, the licensee or applicant shall have
waived the right to the conference.
(5) Hearing:
(a) Right to Hearing. When the Department
issues a notice of intent to revoke or deny a license, the licensee or
applicant shall be entitled to a contested case hearing in accordance with the
provisions of ORS Chapter 183.
(b)
Request for Hearing. A request for hearing must be in writing and must be
received by the Department within:
(A) 21 days
of the date the licensee received the notice of revocation; or
(B) 60 of the date the applicant received the
notice of denial of licensure.
(c) Date of Hearing. The hearing shall be
held within 60 days of the request for hearing unless the Department and the
licensee or applicant agree to a later date.
(d) Continued Operation Prohibited. A
facility may not continue operation if the facility license is immediately
suspended because of serious and immediate danger to resident health or safety
pursuant to OAR 411-089-0040(2).
(6) Default Order. If the licensee or
applicant fails to request a contested case hearing within the prescribed time
period, withdraws a previous hearing request, or fails to appear at a scheduled
hearing, the Department may enter an order denying or revoking the license by
default. In the event of a default, the Department's files on the subject of
revocation or denial automatically become part of a contested case record for
the purposes of proving the Department's prima facie case.
(7) Emergency Suspension Order.
(a) When the Department finds a serious and
immediate threat to resident health and safety exists, the Department may
immediately suspend a nursing facility license. An emergency suspension order
must be in writing. The order may be issued without prior notice to the
licensee and without prior opportunity for a contested case hearing.
(b) Except where the threat to residents is
so imminent that the Department determines that pre-suspension notice is not
practical, the Department must provide the licensee with a pre-suspension
notice and an opportunity to object before issuing an emergency suspension
order. The pre-suspension order shall:
(A)
Describe generally the acts of the licensee or circumstances that are grounds
for an emergency suspension order under this rule, or both;
(B) Describe generally the reasons why the
acts of the licensee or the circumstances seriously and immediately endanger
resident health and safety, or both; and
(C) Identify a person whom the licensee may
contact at the Department who is authorized to make recommendations regarding
issuance of the order.
(c) If a pre-suspension notice is issued, the
licensee shall be entitled to an immediate opportunity to respond to the notice
before an authorized person issues the order or makes recommendations regarding
issuance of the order. The emergency suspension order may be issued at any time
thereafter.
(d) When an emergency
suspension order is issued, the Department must serve the order on the licensee
either personally or by registered or certified mail. The order shall include
the following statements:
(A) The licensee's
right to a hearing, or a statement of the time and place of the
hearing;
(B) The authority and
jurisdiction under which the hearing is to be held;
(C) A short plain statement of the matters
asserted or charged;
(D) A
reference to the particular sections of the statutes and rules
involved;
(E) That the licensee may
elect to be represented by counsel and may respond and present evidence and
argument on all issues involved;
(F) That the licensee has a right to demand a
hearing, if requested, be held as soon as practical;
(G) That if the demand for a hearing is not
received by the Department within 90 days of the date of the emergency
suspension order, the licensee shall have waived its right to a hearing under
ORS Chapter 183;
(H) The effective
date of the emergency suspension order;
(I) Findings of the specific acts or
omissions of the licensee that are the grounds for the suspension, and the
reasons the acts or omissions seriously and immediately threaten the health and
safety of the residents; and
(J)
That the Department may combine the hearing on the emergency suspension order
with any other Department proceeding affecting the license. The procedures for
the combined proceeding shall be those applicable to the other proceeding
affecting the license.
(e) If a timely request for a hearing is
received, the Department must hold the hearing as soon as practical. At the
hearing the Department shall consider the facts and circumstances, including,
but not limited to:
(A) Whether the acts or
omissions of the licensee pose a serious danger to resident health and safety;
and
(B) Whether the circumstances
at the time of the hearing justify confirmation, alteration, or revocation of
the order.
(8)
License Expiration. If the Department determines a license has expired due to
the facility's discontinued operation, the licensee has a right to an informal
conference under section (4) of this rule and a hearing under section (5) of
this rule. The Department may issue a default order pursuant to section (6) of
this rule.
Notes
Statutory/Other Authority: ORS 410.070, 441.030, 441.055 & 441.615
Statutes/Other Implemented: ORS 441.030 & 441.615
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.