OAR 410-172-0800: Temporary rule language in effect until 02/15/2027. Employer and Co-Employer Responsibilities

(1) The individual or the individual’s authorized representative retains employer responsibilities for workers providing personal care services, including personal care attendants (PCA) and direct support workers (DSW). For purposes of OARs 410-172-0774 through 410-172-0845, an authorized representative who fulfills consumer-employer responsibilities described in this rule on behalf of the individual is sometimes referred to as a “Consumer Employer Representative (CER).” (2) If an individual is authorized to receive personal care services and elects to employ a PCA or co-employ a DSW, the individual or the individual’s authorized representative will be required to perform the following: (a) Identify, screen, and hire a PCA or identify, screen and choose a DSW employed by the Agency with Choice (AWC); (b) Supervise and train a PCA or DSW; (c) Schedule work hours, leave and coverage; (d) Direct the PCA or DSW in the provision of personal care services; (e) Verify the authorized hours completed by a PCA or DSW through an Authority approved electronic visit verification (EVV) method when required by state or federal law; (f) Recognize PCA or DSW performance deficiencies. Upon recognition of performance deficiencies, the individual or the authorized representative must be able to: (A) Discuss the performance deficiencies with the PCA or DSW; (B) Work with the PCA or DSW to correct the performance deficiencies; and (C) Take appropriate corrective action as needed. (g) Discharge a PCA or DSW who does not perform tasks in accordance with these rules or to the reasonable satisfaction of the individual; and (h) Comply with all federal and state laws related to employer responsibilities, including ensuring a safe work environment. (3) An individual or their authorized representative and the PCA or DSW may, at their election, enter into a written agreement that describes their respective responsibilities and obligations as outlined in section (1) above of this rule, and other terms and conditions so long as those terms and conditions of the working relationship, does not conflict with or violate state and federal laws, the administrative rules governing the State Plan Personal Care (SPPC) program, and any applicable collective bargaining agreement or, in the case of a DSW, any policies or procedures required by the AWC. (a) A written agreement is optional and does not limit the individual’s authority to discharge a PCA or DSW in accordance with section (4) of this rule. (b) Other terms and conditions that may be incorporated in the individual agreement include but are not limited to: (A) Requiring a notice of resignation to be submitted by the PCA or DSW; (B) Identifying general expectations regarding performance; and (C) Providing procedures on how to inform the individual of the need to stay home due to illness or otherwise miss a scheduled workday. (4) The individual or the individual’s authorized representative retains the right to select, supervise, and discharge a PCA or DSW, consistent with applicable law The grounds for discharging a PCA or DSW are determined by the individual or the individual’s authorized representative but may include without limitation: (a) Circumstances identified in an individual written agreement that was signed by the PCA or as applicable, the DSW, and the individual or their authorized representative; or (b) Other reasons identified by the individual or authorized representative, provided such discharge does not violate applicable laws and any applicable collective bargaining agreement. (5) When an individual elects to receive services through an AWC: (a) The individual retains the employer responsibilities described in this rule, consistent with the co-employer role defined in applicable AWC rules as described in chapter 309 division 045; and (b) The AWC provider carries out agency and employer-of-record responsibilities in accordance with applicable rules and contracts. (6) An individual may designate an authorized representative to act on their behalf to meet the co-employer responsibilities described in this rule: (a) If an individual has a legal representative, the legal representative may designate themselves or another individual as the individual’s authorized representative; and (b) The Authority has the right to deny the designation of an authorized representative as outlined in OAR 410-172-0805. (7) An individual who is unable to meet the employer or co-employer responsibilities in this rule may be determined ineligible for personal care services.