OAR 309-040-0395: Standards for Admission, Transfers, Respite, Discharges, and Closures

(1) Each adult referred for placement in an AFH may select and choose from available service settings. (2) A provider may only admit a resident with a referral from, or prior written approval of the CMHP or the Division. At the time of the referral, a provider must obtain complete information about the case history of the resident as it relates to behavior, skill level, medical needs, or other relevant information. The provider may deny admission of any person if the provider believes the person cannot be managed effectively in the AFH, or for any other reason not specifically prohibited by this rule. AFHs may not be used as a site for foster care for children, adults from other agencies, or any type of shelter or day care without the written approval of the CMHP or the Division. (3) The provider must screen a prospective resident before admitting the resident. (a) The screening must include but is not limited to diagnoses, medications, personal care needs, individually based limitations, nursing care needs, night care needs, nutritional needs, activities and lifestyle preferences. (b) The screening process must include interviews with the resident and the resident’s representative, as applicable. (c) Verify the individual's resources including potential benefit eligibility and coverage as described in OAR 410-120-1280(2). (d) A copy of the screening must be given to the resident and the resident’s legal representative, as applicable. (4) The provider must provide a copy of the house policies and the provider’s residency agreement to the resident and the resident’s representative, as applicable, at the time of the screening. (5) Each provider’s discharge and transfer policy and procedure must be described in each resident’s Residential Agreement and include the right to at least a written 30 day-notice of discharge or transfer unless discharged under the circumstances described in 309-040-0395(14), right to remedy, and right to appeal. The provider is required to give the resident a written notice of discharge or transfer, that clearly documents the provider reviewed the reason for the discharge or transfer with the resident and the resident’s rights to request an informal conference and administrative hearing. If the resident’s location is unknown, the notice may be given to a legal representative of the resident. The provider must make efforts to prevent unnecessary discharges and transfers by making reasonable accommodations within the program setting. (6) The resident or the resident’s legal representative, as applicable, may end the residency in a facility upon providing at least 30-days’ written notice. Upon mutual agreement between the provider and the resident or legal representative, less than 30 days’ notice may be provided. (a) The provider must promptly notify the CMHP or Division if a resident gives notice or plans to leave the AFH or if a resident abruptly leaves; (b) The provider must immediately document plans to move and voluntary moves in the resident’s record; and (c) The provider remains responsible for the provision of personal care, services, and supports until the resident has moved from the home including the provision of one-to-one supervision if necessary to ensure the safety of all residents. (7) Residents may only be involuntarily moved from the AFH for the following reasons: (a) The resident is assessed by a Licensed Medical Professional (LMP) or other qualified health professional to require services such as continuous nursing care or extended hospitalization that are not available in the local community or cannot be provided in the current placement as determined by the LMP; (b) The resident has engaged in a pattern of behaviors or activities that: (A) Repeatedly and substantially interfere with the rights, health, or safety of the resident or other individuals residing in the AFH; and (B) Presents an imminent threat to the health or safety of the resident or other individuals; and (C) The pattern of behaviors have been documented in individual and facility records and demonstrate the interventions and supports that have been attempted or considered to address the behaviors, including treatment goals, safety plans and progress notes. (c) The resident cannot safely evacuate the setting in accordance with the program’s evacuation plan after efforts described in OAR 309-040-00370(5)(b) have been taken; (d) For private paying individuals, failure of the resident or resident’s representative to make payment for care or failure to make payment for room and board as described in the resident’s residential agreement. For Medicaid recipients, failure to make payment for room and board as described in the resident’s residential agreement; (e) The home was not notified before the individual’s admission or learns following the individual’s admission that the individual is on probation, parole or post-prison supervision after being convicted of a sex crime defined in ORS 163A.005; (f) The provider’s Medicaid Provider Enrollment Agreement is terminated; or (g) The facility license was revoked, not renewed, suspended, or voluntarily surrendered, or the home was voluntarily closed. (8) The provider must make reasonable and good faith efforts to prevent unnecessary transfers or discharges by making reasonable accommodation with the AFH. (9) Prior to initiating an involuntary transfer process, the AFH must consider the following: (a) The availability of alternatives to transfer; (b) The resident’s ties to family and community; (c) The relationships the resident has developed with other residents and facility staff; (d) The duration of the resident’s stay at the facility; (e) The mental health needs of the resident and the availability of mental health services; (f) The availability of a receiving facility that would accept the resident and provide service consistent with the resident’s needs; (g) The consistency of the receiving facility’s services with the activities and routine with which the resident is familiar, and the receiving facility’s ability to provide the resident with similar access to personal items significant to the resident and enjoyed by the resident at the transferring facility; (h) The probability that the transfer would result in improved or worsened mental, physical, or social functioning, or in reduced dependency of the resident; (i) The type and amount of preparation for the move, including but not limited to: (j)Solicitation of the resident’s friends and/or family in preparing the resident for the move; and (k) Visitation by the resident to (prior to actual transfer) or familiarity of the resident with the place to which the resident is to be transferred; and On-site consultation or new mental health assessment by an individual with specific expertise in mental health services if the basis for considering transfer is behavioral. (10) An individual must not be involuntarily transferred to another room in the AFH or moved out of the AFH without the approval of the Division and a minimum of 30 days advance written notice to the individual, the individual’s representative, as applicable, and the CMHP, unless discharged under the circumstances described in 309-040-0395(14). (11) The provider must submit a completed notice of involuntary transfer or discharge request form to the Division in writing using the Division approved form prior to issuing a notice of involuntary transfer or discharge to a resident or representative. (a) The provider must offer the resident the right to remedy when the reason for involuntary transfer or discharge is not due to the closure of the facility, long-term incarceration, or need to transfer as identified by the LMP. The right to remedy must: (A) Be developed in cooperation with the resident, their representative if applicable, the CMHP, and the Division; (B) Identify reasonable behavioral goals that measurable and consistent with standard behavioral treatment practices, and must ensure protection of the individual’s rights; (C) Establish a specific period for the resident to demonstrate compliance with the agreed upon remedy and cannot be used to support future notices of involuntary transfer or discharge; and (D) Document the provider’s reasonable efforts to prevent unnecessary transfer or discharge including, but not limited to, clinical consultations, amending the individual’s residential care plan, requesting updated assessments for changes in behaviors, and developing safety plans. (b) The provider must make reasonable efforts to establish a reasonable end of residency date in consideration of both the program’s needs, and the resident’s needs to find alternative living arrangements; (c) The Division must review the cause for notice, interventions and supports attempted to address the cause for notice, and provide a written response of approval or denial to the provider within two business days of receiving the completed form. (d) Upon receipt of written approval from the Division, the provider must consult with the resident or their representative and present a ’30-day’ or ‘less than 30-day’ notice of involuntary transfer or discharge and the ODHS/OHA form MSC 0443, Administrative Hearing Request (12) The provider must provide at least 30 days’ written notice to the resident and their representative, if applicable, specifying the cause(s) and include steps the individual can take to remedy the cause. (13) The provider may issue a ‘less than 30-day’ notice of involuntary transfer or discharge to the resident and their representative, if applicable, once approved by the Division, if a resident has intentionally injured another resident or staff, has caused intentional significant destruction of property, or is engaged in behaviors that immediately jeopardize the health and safety of others that cannot be mitigated with a safety plan. The provider will not give a ‘less then 30-day’ notice of involuntary transfer or discharge to a resident receiving treatment or services for the purpose of stabilization, in a hospital, at a respite location, or temporarily placed in police custody. (14) Notifications of involuntary transfer or discharge must: (a) Be delivered to the resident in person; (b) Be given to the resident’s legal representative (guardian) as applicable; and (c) Specify the individual’s right to an administrative hearing in accordance with ORS 443.738(11)(c). (15) The provider must hold a pre transfer or discharge meeting with the individual and their representative, if applicable, and with the individual's permission other individuals with an interest in the individual's circumstances. The purpose of the meeting is to: (a) Provide copies of the notice; (b) Explain the cause for the notice and the right to remedy; (c) Explain the resident’s right to request an administrative hearing regarding the notice; and (d) Plan any arrangements necessary to facilitate the transfer or move. (16) The provider must ensure the resident has supports, including interpreter or translation services, to understand the involuntary transfer or discharge notice and the resident’s rights to an administrative hearing regarding the notice. (17) Residents who object to the involuntary transfer or discharge must be given the opportunity for a hearing as provided in ORS 443.738(11)(b) and 441.605(4). Participants may include the resident, and at the resident's request, the provider, a family member, and a CMHP staff member. (18) Residents must not be involuntary transferred or discharged while in the process of an appeal or after the program has knowledge of any indication of a resident’s desire to appeal the notice of involuntary transfer or discharge. (19) The Division determines if the cause for involuntary transfer or discharge is sufficient according to the licensing rules and may take action on a license if the resident is wrongfully discharged. (20) Upon transfer or discharge from the facility, program staff must offer two doses of an FDA-approved short-acting, non-injectable, opioid antagonist medication to the individual. If the individual accepts, program staff must: (a) Provide the individual with an instruction card on the use of short-acting, non-injectable, opioid antagonist medication; and (b) Document distribution of the short-acting, non-injectable, opioid antagonist medication in the individual’s record. (21) At the time of involuntary transfer or discharge, the resident must be given a statement of account, any balance of funds held by the provider, and all property held in trust or custody by the provider. (a) The provider may withhold funds to cover pending charges. Within 30 days after the resident is transferred or discharged, or as soon as pending charges are confirmed, the provider must provide the resident with a final financial statement along with any funds due; (b) If a resident’s property has been left at the AFH for longer than seven days after transfer or discharge of the resident, the provider must make a reasonable attempt to contact the resident or their representative, if applicable. The provider must allow the resident or their representative, if applicable, a minimum of 15 days to make arrangements concerning the property; and (c) If the provider determines the resident has abandoned the property, the provider may then dispose of the property. If the property is sold, proceeds of the sale, minus the amount of any expenses incurred and any amounts owed the provider by or on behalf of the resident, must be forwarded to the resident or their representative, as applicable. (22) Providers must provide written notification to the Division within 10 calendar days after receipt of any notice of default, or any notice of potential default (commonly referred to as foreclosure), with respect to a real estate contract, trust deed, mortgage, or other security interest affecting any property occupied or used by the provider. (23) The provider must provide a copy of the notice of default or warning of potential default to the Division. (24) The provider must provide written updates to the Division at least every 30 days until the default or warning of potential default has been resolved and no additional defaults or potential defaults have been declared and no additional warnings have been issued. Written updates must include: (a) The current status on what action has been or is about to be taken by the provider with respect to the notice received; (b) The action demanded or threatened by the holder of the security interest; and (c) Any other information reasonably requested by the Division. (25) The provider must provide written notification within 24 hours to the Division upon final resolution of the matters leading up to or encompassed by the notice of default or the notice warning of potential default. (26) If the subject default property is licensed as an AFH, the provider must provide written notification of the following within 24 hours to the Division, and all the residents and the residents' representatives, if applicable, regarding: (a) The filing of any litigation regarding such security interest, including the filing of a bankruptcy petition by or against the provider or an entity owning any property occupied or used by the provider; (b) The entry of any judgment with respect to such litigation; (c) The passing of the date 40 days before any sale scheduled pursuant to the exercise of legal rights under a security interest, or a settlement or compromise related thereto, of the provider's property or property occupied or used by the provider; and (d) The sale, pursuant to the exercise of legal rights under a security interest, or a settlement or compromise related thereto, of the provider's property or property occupied or used by the provider. (27) Providers must notify the Division prior to the voluntary closure, proposed sale, or transfer of ownership of an AFH and give residents, families, and the CMHP 30 days’ written notice, except in circumstances where undue delay might jeopardize the health, safety, or well-being of a resident, provider, or caregiver. If a provider has more than one AFH, a resident cannot be shifted from one house to another house without the same period of notice unless prior approval is given and agreement obtained from residents or their guardians, and the CMHP. (28) Provider’s must surrender the physical license to operate their adult foster home to the Division at the time of closure.