OAR 411-052-0025: Sanctions - Civil Penalties

(1) Except as otherwise provided in this rule, civil penalties of not less than $100 per violation, and not more than $250 per violation may be assessed for a general violation of these rules. (2) Mandatory penalties up to $500, unless otherwise required by law, shall be assessed for falsifying resident or facility records or causing another to do so. (3) A mandatory penalty of $250 shall be imposed for failure to have either the licensee or other qualified caregiver on duty 24 hours per day in the AFH. (4) A mandatory penalty of not less than $100 and not more than $250 shall be imposed for dismantling or removing the battery from, or failing to install, any required smoke or carbon monoxide alarm. (5) The Department shall impose a civil penalty of not less than $250 and no more than $500 on a licensee who admits a resident knowing that the resident's care needs exceed the license classification of the licensee and the admission places the resident or other residents at risk of harm. (6) A mandatory penalty of $500 shall be assessed for interfering with or retaliating against an individual making a good faith disclosure of information concerning the abuse or mistreatment of an individual receiving care and services in an adult foster home. (7) Civil penalties of not less than $100 and not more than $1,000 per occurrence may be assessed for substantiated abuse. (8) If the Department, or the Department's designee, conducts an investigation and abuse is substantiated and if the abuse resulted in the death, serious injury, rape, or sexual abuse of a resident, the Department shall impose a civil penalty of not less than $2,500 for each violation. (a) To impose this civil penalty, the Department must establish: (A) The abuse arose from deliberate or other than accidental action or inaction. (B) The conduct resulting in the abuse was likely to cause death, serious injury, rape, or sexual abuse of a resident. (C) The person with the finding of abuse had a duty of care toward the resident. (b) For the purposes of this civil penalty, the following definitions apply: (A) "Serious injury" means a physical injury that creates a substantial risk of death or that causes serious disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ. (B) "Rape" means rape in the first, second, or third degree as described in ORS 163.355, 163.365, and 163.375. (C) "Sexual abuse" means any form of nonconsensual sexual contact including, but not limited to, unwanted or inappropriate touching, sodomy, sexual coercion, sexually explicit photographing, or sexual harassment. The sexual contact must be in the form of any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party. (D) "Other than accidental" means failure on the part of the licensee, or licensee's employees, agents, or volunteers for whose conduct licensee is responsible, to comply with applicable Oregon Administrative Rules. (9) In addition to any other liability or penalty provided by law, the Department may impose a penalty for any of the following: (a) Operating the home without a license. (b) The number of residents exceeds the licensed capacity. (c) The licensee fails to achieve satisfactory compliance with the requirements of these rules within the time specified or fails to maintain such compliance. (d) The home is unable to provide adequate level of care to the residents. (e) There is retaliation or discrimination against a resident, family, employee, volunteer or any other person for making a complaint against the home. (f) The licensee fails to cooperate with the Department or fails to cooperate with the prescribing practitioner or licensed health care professional in carrying out a resident's care plan. (g) The licensee fails to obtain an approved background check from the Department before employing a caregiver in the home. (10) A civil penalty may be imposed for violations other than those involving the health, safety, or welfare of a resident if the licensee fails to correct the violation as required when a reasonable time frame for correction was given. (11) Violations requiring a mandatory civil penalty that occurred while the licensee was operating the AFH will be imposed by the Department, even if the licensee subsequently closes the home or voluntarily surrenders the license. (12) Any civil penalty imposed under this rule becomes due and payable 10 calendars days after the order imposing the civil penalty becomes final by operation of law or on appeal. The notice must be delivered in person or sent by registered or certified mail and must include: (a) A reference to the sections of the statute, rule, standard, or order involved. (b) A short and plain statement of the matters asserted or charged. (c) A statement of the amount of the penalty or penalties imposed. (d) A statement of the right to request a hearing. (13) The person to whom the notice is addressed shall have 20 calendar days from the date the notice is mailed to make written application for a hearing. If a written request for a hearing is not timely received, the Department shall issue a final order by default. (14) All hearings shall be conducted according to the applicable provisions of ORS 183. (15) When imposing a civil penalty, the Department shall consider the following factors: (a) The history of the person 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 facility. (c) The economic and financial conditions of the person 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. (e) The degree of harm to residents. (16) If the person notified fails to request a hearing within the time specified, or if after a hearing the person is found to be in violation of a license, rule, or order, an order may be entered assessing a civil penalty. (17) Unless the penalty is paid within 10 calendar days after the order becomes final, the order constitutes a judgment and may be recorded by the county clerk, which becomes a lien upon the title to any interest in real property owned by that person. The Department may also initiate a notice of revocation for failure to comply with a final order. (18) Civil penalties are subject to judicial review under ORS 183.480, except that the court may, at its discretion, reduce the amount of the penalty. (19) All penalties recovered under ORS 443.790 to 443.815 are paid to the Quality Care Fund.