OAR 309-035-0220: Civil Penalties

(1) For purposes of imposing civil penalties, programs licensed under ORS 443.400 to 443.455 are long-term care facilities subject to ORS 441.705 to 441.745. (2) Violations of any requirement within any part of these rules may result in a civil penalty. (3) Civil penalties will be assessed in accordance with the following guidelines: (a) Civil penalties not to exceed $250 per violation to a maximum of $1,000 may be assessed for general violations of these rules. Such penalties will be assessed after the procedures outlined in OAR 309-035-0110(8) have been implemented; (b) A mandatory penalty up to $500 must be assessed for falsifying individual service records or program records or causing another to do so; (c) A mandatory penalty of $250 per occurrence must be imposed for failure to have direct care staff on duty 24 hours per day; (d) Civil penalties up to $1,000 per occurrence may be assessed for substantiated abuse; (e) In addition to any other liability or penalty provided by the law, the Division may impose a penalty for any of the following: (A) Operating the program without a license; (B) Operating with more individuals than the licensed capacity; and (C) Retaliating or discriminating against an individual, family member, employee, or other person for making a complaint against the program. (f) In imposing a civil penalty, the following factors must be taken into consideration: (A) The history of the provider incurring the penalty in taking all feasible steps or procedures to correct the violation; (B) Any prior violations of statutes, rules, or orders pertaining to the program; (C) The economic and financial conditions of the provider incurring the penalty; (D) The immediacy and extent to which the violation threatens or threatened the health, safety, or welfare of one or more residents; and (E) The degree of harm caused to individuals. (4) Any civil penalty imposed under this section becomes due and payable ten days after notice is received unless a request for a hearing is filed. The notice shall be delivered in person or sent by registered or certified mail and shall include a reference to the particular section of the statute or rule involved, a brief summary of the violation, the amount of the penalty or penalties imposed, and a statement of the right to request a hearing. (5) The person to whom the notice is addressed has 20 days from the date of receipt of the notice to request a hearing. This request must be in writing and submitted to the Division. If the written request for a hearing is not received, the Division will issue a final order. (6) All hearings must be conducted pursuant to the applicable provisions of ORS Chapter 183. (7) Unless the penalty is paid within ten days after the order becomes final, the order constitutes a judgment and may be recorded by the County Clerk that becomes a lien upon the title to any interest in real property owned by the person. The Division may also take action to revoke the license upon failure to comply with a final order. (8) Civil penalties are subject to judicial review under ORS 183.480. (9) All penalties recovered under ORS 443.790 to 443.815 shall be paid into the State Treasury and credited to the General Fund.