OAR 411-049-0105: Temporary rule language in effect until 01/27/2027. License

(1) REQUIRED. Any facility that meets the definition of an AFH or limited AFH in OAR 411-049-0102 must apply for and obtain a license from the LLA before providing care to any resident for compensation. (2) A person or entity may not represent themselves as operating an AFH or accept placement of a resident without being licensed as an AFH. (3) DURATION. (a) A license is valid for one year unless revoked or suspended by the Department; or (b) A license may be valid for two years if the LLA determines the licensee, or administrator has demonstrated substantial compliance for three consecutive years. (A) Eligibility to extend the renewal period to two years must be documented and maintained by the LLA. (B) To be eligible for the two-year license duration, the licensee or administrator must: (i) Be licensed for a minimum of three years. (ii) Not have any substantiated final orders for level three or four abuse within the last three years. (iii) Not have any conditions placed on the license for a pattern of deficiencies, as determined by the LLA and the Department. (C) The licensee will be returned to a one-year renewal period at any time the Department determines the home is no longer in substantial compliance. (4) When the Department reviews a license and determines that the convenience of both the licensee and the Department will be served, a license period may be changed to match the renewal schedule of another license held by the same licensee. The request for a schedule change may be made by either the Department or the licensee. No license period may extend beyond the approved duration based on this section of the rule. (5) NON-TRANSFERABLE LICENSE AND SALE, LEASE OR CHANGE OF OWNERSHIP REQUIREMENTS. A change of ownership of an AFH requires both a new license application and a new license. (a) A license is not transferable and does not apply to any location or person other than the location and person indicated on the license obtained from the LLA. (b) The licensee must inform real estate agents, prospective buyers, lessees, and transferees in all written communication, including advertising and disclosure statements, that the license to operate the AFH is not transferable and the licensee must refer them to the LLA for information about licensing. (c) When a home is to be sold or otherwise transferred or conveyed to another person who intends to operate the home as an AFH, that person must apply for and obtain a license from the LLA before the transfer of operation of the home. (d) Prior to operation of the AFH, the new owner: (A) Must have an approved license from the Department before transfer of ownership. (B) Must not begin operation of the AFH until the Department has issued the license. (C) Must conduct pre-admission screenings according to OAR 411-051-0110(1)(a)(A) - (C) for residents wishing to remain in the AFH. (e) NOTICE OF CHANGE OF OWNERSHIP. (A) The licensee must promptly notify the LLA in writing about the licensee's intent to close or convey the AFH to another person. The licensee must provide written notice to the residents and the residents' representatives and case managers, as applicable, according to OAR 411-050-0760(3)(e). (B) The licensee must inform a person intending to assume operation of an existing AFH that the residents currently residing in the home must be given at least 30 calendar days' written notice of the licensee's intent to close the AFH to convey the home to another person. (C) The licensee must include the following information in the written notice: (i) Names of the present owner and prospective owner. (ii) Name and address of the AFH for which the ownership is being changed. (iii) Date of proposed change. (iv) Any change in the house policies or operations that could impact a resident's ability to continue to live in the home. (v) The licensee must remain licensed and responsible for the operation of the home and care of the residents in accordance with these rules until the home is closed and the residents have been relocated, or the home is conveyed to a new licensee who is licensed by the LLA at a level appropriate to the care needs of the residents in the home. (f) PRIORITY PROCESSING. To prevent disruption to residents, current licensees may request in writing that the Department give priority processing to an applicant seeking to be licensed as the new licensee for the AFH. (6) CAPACITY. Notwithstanding limited AFHs, residents must be limited to no more than five adults who require care and are unrelated to the licensee and resident manager by blood, marriage, or adoption. (a) The number of residents permitted to reside in an AFH is determined by the ability of the staff to meet the care needs of the residents, the fire and life safety standards for evacuation, and compliance with the facility standards of these rules. (b) The licensee must demonstrate, to the LLA's satisfaction, the ability to meet the needs of the residents, in addition to caring for any children or others beyond the license capacity of the AFH. (c) The LLA's determination of maximum capacity must ensure: (A) The ratio of at least one caregiver per five residents, including any adult day services individuals and others requiring care or supervision except as allowed under subsection (d) of this rule section. (B) Children over the age of five have a bedroom available that is separate from the child's parents. (C) The well-being of the household, including any children or other family members, shall not be jeopardized. (d) When a family member who is not a consumer requires care in a home, and when the licensee is the primary live-in caregiver, a maximum capacity of five unrelated residents are allowed if the following criteria are met: (A) The licensee must be able to demonstrate the ability to evacuate all occupants from the AFH as specified in these rules (See OAR 411-050-0725(3)). (B) The licensee must have sufficient, qualified staff and demonstrate the ability to provide appropriate care for all residents (See OAR 411-050-0730). (C) There must be an additional 40 square feet of common living space for each person above the five residents as specified in these rules (See OAR 411-050-0715). (D) Bathrooms and bedrooms must meet the requirements of OAR 411-050-0715. (E) The care needs of adult day services individuals must be within the classification of the license and any conditions imposed on the license. (F) The well-being of the household, including any children or other family members, shall not be jeopardized. (e) When a licensee's family member is a Medicaid consumer, the family member may remain in the home as one of the residents within the home's licensed capacity. Resident records must be maintained for the family member according to OAR 411-050-0750. (7) CHANGE IN CAPACITY. To request a change to the maximum capacity of a licensed home at any time other than the license renewal period, the licensee shall submit to the LLA a written request using the Department's form, DHS 0749, to amend the licensee's previous application for a license. (a) The complete request will include: (A) All the required information and documentation, as applicable, to demonstrate the applicant meets the standards for the requested capacity according to these rules; and (B) A $20 non-refundable fee for each additional resident bed requested. (b) Within 60 calendar days' receipt of the complete written request, the LLA must investigate the information provided and must: (A) Approve the request and issue an amended license with the requested capacity; or (B) Forward a request to deny the applicant's change in capacity to the Safety, Oversight, and Quality Unit, unless the applicant submits written notification to withdraw the requested change in capacity. (i) If the request is denied, the Department shall provide the applicant with notice and an opportunity for a contested case hearing pursuant to ORS 183. The notice shall state the reasons for the denial and shall be served personally upon the applicant or by certified or registered mail. (ii) Any request for a contested case hearing must be submitted to the Department, in writing, by the applicant within 10 days of service. (8) VENTILATOR-ASSISTED CARE. The Department may approve a licensee to care for residents requiring ventilator-assisted care. The licensee, administrator, resident manager, floating resident manager, or shift caregivers, as applicable, must meet the criteria for a Class 3 home according to section (9) of this rule, and comply with the additional requirements for AFHs serving residents requiring ventilator-assisted care outlined in OAR 411-049-0155. (9) CLASSIFICATION. The LLA shall issue a Class 1, Class 2, or Class 3 AFH license only if the qualifications of the applicant, administrator, resident manager, floating resident manager, and shift caregivers, as applicable, fulfill the classification requirements of these rules. (a) After receipt of the completed application materials, including the non-refundable fee, the LLA must investigate the information submitted, including any pertinent information received from outside sources. (b) The LLA shall not issue a license if unsatisfactory references or a history of substantial non-compliance of the applicant within the last 24 months are verified. (c) The LLA may issue a Class 1 license if the applicant, and other caregivers as applicable, complete the training requirements outlined in OAR 411-049-0125. (d) The LLA may issue a Class 2 license if the applicant, and other caregivers as applicable, complete the requirements outlined in OAR 411-049-0125. In addition, these caregivers must each have the equivalent of two years of full-time experience providing direct care to adults who are older or adults with physical disabilities. (e) The LLA may issue a Class 3 license if the applicant, and other caregivers as applicable, complete the training requirements outlined in OAR 411-049-0125 and have a current license as a health care professional in Oregon or possess the following: (A) Have the equivalent of three years of full-time experience providing direct care to adults who are older or adults with physical disabilities and who require full assistance in four or more activities of daily living. (B) Have references satisfactory to the Department. The applicant must submit current contact information from at least two licensed health care professionals who have direct knowledge of the applicant's ability and experience as a caregiver; or (C) A copy of the applicant's current license as a health care professional in Oregon, if applicable. (10) CHANGE IN CLASSIFICATION. To request a change in the classification of a licensed home at any time other than the license renewal period, the licensee shall submit a written request to the LLA, using the Department's form DHS 0748, and DHS 0748A as applicable, to amend the licensee's previous application for a license. (a) The complete request includes all the required information and documentation, as applicable, to demonstrate the applicant meets the standards for the requested classification according to these rules. (b) Within 60 calendar days' receipt of the complete written request, the LLA will investigate the information provided and shall: (A) Approve the applicant's request and issue an amended license with the requested classification; or (B) Forward a request to deny the applicant's request, to the Safety, Oversight, and Quality Unit, unless the applicant submits written notification to withdraw the requested change in classification. (i) If the request is denied, the Department shall provide the applicant with notice and an opportunity for a contested case hearing pursuant to ORS 183. The Notice shall state the reasons for the denial and shall be served personally upon the applicant or by certified or registered mail. (ii) Any request for a contested case hearing must be submitted to the Department, in writing, by the applicant within 10 days of service. (11) A licensee or administrator may only admit or continue to care for residents whose impairment levels are within the classification of the licensed home. A licensee with a: (a) Class 1 license may only admit residents who require assistance in no more than four activities of daily living. (b) Class 2 license may provide care for residents who require assistance in all activities of daily living but require full assistance in no more than three activities of daily living. (c) Class 3 license may provide care for residents who require full assistance in four or more activities of daily living, but only one resident who requires bed-care or full assistance with all activities of daily living, not including cognition or behavior. (12) CLASSIFICATION VARIANCE. A licensee or administrator must request, in writing, a variance from the LLA if: (a) A new resident wishes to be admitted whose impairment level exceeds the license classification. (b) A current resident becomes more impaired, exceeding the license classification. (c) There is more than one resident in the home who requires full bed-care or full assistance with all activities of daily living, not including cognition or behavior. (13) The LLA may grant a variance that allows a resident to be admitted or remain in the AFH. The LLA must respond in writing within 30 calendar days after receipt of the licensee’s or administrator's written variance request. The licensee or administrator must prove the following criteria are met by clear and convincing evidence: (a) It is the choice of the resident to reside in the home. (b) The licensee or administrator can provide appropriate care and service to the resident in addition to meeting the care and service needs of the other residents. (c) Additional staff are hired to meet the additional care requirements of all residents in the home as necessary. (d) Outside resources are available and obtained to meet the resident's care needs. (e) The variance shall not jeopardize the care, health, safety, or welfare of the residents. (f) The licensee or administrator's ability to demonstrate how all occupants shall be safely evacuated in three minutes or less. (14) LICENSE TYPES. (a) LIMITED AFH. Any home that meets the definition of a limited AFH in OAR 411-049-0102 must apply for and obtain a limited license from the LLA before providing care. The license for a limited AFH is limited to the care of a specific resident and the licensee must make no other admissions. The resident receiving care is named on the license. (b) PROVISIONAL. Notwithstanding any other provision of this rule or ORS 443.725 or 443.738, the LLA may issue a 60-day provisional license to a qualified person. A provisional license may be issued if the LLA determines it is in the best interests of the residents currently residing in the home, and any of the following exist: (A) An emergent situation exists after receiving notification that a licensee is no longer overseeing the operation of an AFH. (B) A new, qualified applicant has submitted an application and bed fee for a license to operate a currently licensed home. The applicant has demonstrated a good faith effort to submit a timely and complete application, but the application process cannot be completed before the expiration date of the current license. A person is considered qualified for a provisional license if he or she: (i) Is at least 21 years of age. (ii) Has the necessary experience working with adults who are older or adults with physical disabilities to potentially qualify for the license classification of the home. (iii) Fully understands and has the ability to meet the residents' care needs. (iv) Meets the requirements of a substitute caregiver as described in OAR 411-049-0125(9). (15) DUAL LICENSES. A licensee subject to these rules may not have more than one license type at the same AFH. Examples of other license types may include, but are not limited to, child care, foster care for children, and a care facility for individuals with intellectual or developmental disabilities or mental health needs. (16) LICENSE CONTENTS. The license is completed in full and specifies the type of license granted.