OAR 411-054-0080: Involuntary Move-out Criteria

The Department of Human Services, Aging and People with Disabilities Office encourages facilities to support a resident's choice to remain in his or her living environment while recognizing that some residents may no longer be appropriate for the community-based care setting due to safety and medical limitations. (1) Information must be specified in the facility's disclosure information OAR 411-054-0026 (Notice to Potential Residents) that describes the types of health, nursing, behavior, and care services the facility is able and unable to provide. In addition, facilities endorsed under OAR chapter 411, division 057 (Endorsed Memory Care Communities) must provide services to support residents with the progressive symptoms of dementia. Facilities will not be required to permanently provide staffing beyond the staffing services stated in the residency agreement; however, facilities may need to provide additional services to residents on a short-term basis to ensure safety of residents and to facilitate transfer to a more appropriate setting. The minimum required services identified in the following sections and outlined in disclosure documents must be provided before a resident may be asked to move out: (a) OAR 411-054-0070(1) (Staffing). (b) OAR 411-054-0030 (Resident Services). (c) OAR 411-054-0045(1)(f)(F) (Intermittent Direct Nursing Services). Such services may be of a temporary nature as defined in the facility policy, admission agreements and disclosure information. This means the facility is not required to provide services beyond the scope of the facility license or in a manner that does not support the health and safety of the resident or others in the facility. (2) REASONS FOR INVOLUNTARY 30-DAY MOVE-OUT NOTICE. A resident may be asked to move from a facility if one or more of the following circumstances exists: (a) The resident's needs exceed the level of ADL services the facility provides as specified in the facility's disclosure information; (b) The resident engages in behavior or actions that repeatedly and substantially interferes with the rights, health, or safety of residents or others; (c) The resident has a medical or nursing condition that is complex, unstable or unpredictable, and exceeds the level of health services the facility provides as specified in the facility's disclosure information; (d) The facility is unable to accomplish resident evacuation in accordance with OAR 411-054-0090 (Fire and Life Safety); (e) The resident exhibits behavior that poses a danger to self or others; (f) The resident engages in illegal drug use, or commits a criminal act that causes potential harm to the resident or others; or (g) Non-payment of charges. (3) Prior to issuing a move-out notice, the facility shall communicate with the resident or resident’s legal representative regarding the reasons for the move-out and attempt to resolve the reason for move out. The facility must document efforts to resolve the move out. (4) PROCESS FOR ISSUING AN INVOLUNTARY 30-DAY MOVE-OUT NOTICE. Except as otherwise provided in these rules, the following apply to a 30-day move out: (a) A facility may not require a resident to engage in an involuntary move out from the facility without first providing 30-day notice to the resident, resident’s legal representative, the Office of the Long-Term Care Ombudsman, and the resident’s case manager, if the resident has a case manager. (b) Before the facility issues a 30-day notice to the resident, the resident’s legal representative, the Office of the Long-Term Care Ombudsman, or the resident’s case manager, the facility must first submit the written notice to the Department for review and receive a written response from the Department stating the notice and other documentation submitted by the facility complies with these rules. (5) As part of the facility submission of the 30-day notice to the Department as described in (4), the facility must demonstrate that the facility has made all relevant, appropriate efforts to resolve the reason(s) for the requested move-out. At a minimum, the facility must provide to the Department the following written information concerning the proposed move-out: (a) A copy of the proposed 30-Day Move-out and Administrative Hearing Request (form APD 0567 and form MSC 0443), which includes a written explanation of the reason(s) for the requested move out. (b) The two (2) most recent service plans, showing modifications made in attempt to resolve the reason for the requested move out. The only exception to this specific requirement involves any proposed move-out due to resident non-payment issues. (c) All relevant documentation that supports the facility’s reason(s) for the proposed 30-Day Move-out Notice. (6) After receiving the facility’s documentation under (5) of this rule, the Department may request additional documentation from the facility concerning the proposed move-out. Such requested documentation may include, but is not limited to: (a) Documentation of the facility’s attempts to resolve the reason for the proposed move-out such as related progress notes, relevant Medication Administration Record(s), evaluations, clinical assessments, physician notes, and other documentation demonstrating the facility has attempted to staff resident’s temporary or intermittent needs. (b) Documentation that demonstrates the proposed move-out is consistent with the facility’s: (A) Uniform Disclosure Statement, as required by OAR 411-054-0026(1). (B) Residency Agreement, as required by OAR 411-054-0026(2). (C) Consumer Summary Statement, as required by OAR 411-054-0026(3). (c) Names and contact information of additional parties or witnesses, as appropriate, to allow the Department to obtain additional facts regarding the reason for the move. (7) After receiving all information required under (5) and requested under (6) of this rule, the Department will have two business days to review the 30-day involuntary move out notice and any related documentation and provide the facility with written notice indicating whether or not the Department has determined the facility has provided satisfactory documentation in compliance with these rules. If the Department determines sufficient documentation has not been provided, the Department will deny the move-out notice. A denial does not prohibit a facility from submitting or resubmitting a move-out notice that satisfies the criteria contained in (5) of this rule. (8) The Department will provide written notice to the facility with a determination regarding the proposed move-out. However, if the Department determines regulatory criteria established in rule were not met, the facility may not issue the move-out notice. (9) The facility may issue the notice if the Department has determined regulatory criteria were met; the facility must email a copy of the final version of form APD 0567 to the Department, the resident, the resident's legal representative, the resident’s case manager, and the Office of the Long-Term Care Ombudsman. (a) The 30-Day Move-Out and Hearing Notification form (form APD 0567) must include notice of both the move-out and the right to request a hearing (form MSC 0443). (b) If the correct form, containing both notices, is not delivered to all necessary parties, the 30-Day Move-Out and Hearing Notice form is insufficient, and the timeline does not start until both notices are jointly supplied. (10) Informal conferences and administrative hearings requested under (9) will be conducted according to (19) of this rule. (11) LESS THAN 30-DAY MOVE-OUT NOTICE. The resident must be given 30 days advance written notice before being asked to move out or not return to the facility, except in the following unusual circumstances: (a) A resident has been admitted or treated at a health care facility for a significant medical or psychiatric event. At the time the resident is to return to the facility, qualified facility staff have evaluated the resident's health, medical, behavioral or care needs and have determined the facility is unable to meet the resident's needs pursuant to section (1) of this rule due to the resident’s significant and ongoing change of condition related to a medical or psychiatric event, whether that event was the reason for leaving the facility for treatment, or arose while the resident was being treated at the health care facility. (A) A “significant medical or psychiatric event” is defined as a serious illness, injury, impairment, or physical or mental condition that results in a change of condition such that the facility cannot meet the needs of the resident, and the resident requires inpatient care in a health care facility on a continuing and permanent basis. (B) For the duration of the resident’s time in the health care facility, a facility must stay informed of the status of the resident’s health by communicating with the health care facility on a consistent, ongoing basis. (C) When a resident has been admitted or treated at a health care facility for a significant medical or psychiatric event, once the health care facility has given notice to the facility that the resident is ready to be discharged to return to the facility, qualified facility staff shall evaluate the resident's health, medical, behavioral or care needs within a reasonable time, but no later than 24 hours after the resident has been deemed ready for discharge. (b) The resident’s behavior places the health or safety of the resident or others in jeopardy and undue delay in moving the resident increases the risk of harm. (12) PROCESS FOR ISSUING AN INVOLUNTARY LESS THAN 30-DAY MOVE-OUT NOTICE. A facility may not issue a move-out notice before first submitting written documentation described in (13) of this rule to the Department and then receiving written response from the Department stating the written documentation submitted by the facility is in compliance with these rules. (13) Prior to providing notice to the resident or the resident’s legal representative, the facility must provide to the Department the following written information concerning the proposed less than 30-day move-out: (a) A copy of the proposed Less Than 30-Day Move-out and Hearing Notice form (form APD 0568 and form MSC 0443), which includes a written explanation of the reason(s) for the requested move out. (b) The two (2) most recent service plans, showing service plan modification, if possible. (c) Appropriate documentation that demonstrates the efforts taken to address all service needs of the resident, including providing intermittent direct nursing services or obtaining home health, hospice, or a third-party referral, as required by rule. (d) Documentation demonstrating compliance with 411-054-0070(1) and 411-054-0030(2)(b). (e) Explanation of whether the facility has the ability to respond to 24-hour care needs and also assist residents to access health care services from outside vendors, as defined by 411-054-0045(1) and (2). (f) Any and all additional documentation that supports the facility’s reasons for proposing a Less Than 30-day Move-out notice. (14) After receiving the facility’s documentation under (13) of this rule, the Department may request additional documentation from the facility concerning the proposed less than 30-day move-out, as deemed necessary by the Department. Such requested documentation may include, but is not limited to: (a) Documentation of attempts to resolve the reason for the requested move-out such as related progress notes, relevant Medication Administration Record(s), evaluations, clinical assessments, physician notes, and other documentation demonstrating the facility has attempted to staff resident’s temporary or intermittent needs, as required by OAR 411-054-0045(1)(f)(F). (b) Documentation that demonstrates the proposed move-out is consistent with the facility’s: (A) Uniform Disclosure Statement, as required by OAR 411-054-0026(1). (B) Residency Agreement, as required by OAR 411-054-0026(2). (C) Consumer Summary Statement, as required by OAR 411-054-0026(3). (c) Names and contact information concerning additional parties or witnesses, as appropriate, to allow the Department to obtain additional statements or evidence regarding the reason for the move. (15) After receiving all information required under (13) and requested under (14) of this rule, the Department will have two business days to review the involuntary move-out notice and any related documentation and provide the facility with written notice indicating whether or not the Department has determined the facility has provided documentation in compliance with these rules. If the Department determines sufficient documentation has not been provided, the Department will deny the move-out notice. A denial does not prohibit a facility from submitting or resubmitting a move-out notice that satisfies the criteria contained in (13) of this rule. (16) The Department will provide written notice to the facility with a determination regarding the proposed move-out. If the Department determines regulatory criteria were not met, the facility may not issue the move-out notice. (17) The facility may issue the notice if the Department has determined regulatory criteria has been met; the facility must submit the final version of form APD 0568 and form MSC 0443 to the Department, the resident, the resident's legal representative, the resident’s case manager, and the Office of the Long-Term Care Ombudsman. (a) The Less Than 30-Day Move-Out and Hearing Notice (form APD 0568) must include notice of both the move-out and the rights to request a hearing (form MSC 0443). The completed form must contain both notices and be delivered to all required parties. (b) The facility must provide as much notice to the resident as possible but must always provide at least 24 hours. (c) The facility must email a copy of the Less Than 30-Day Move-Out and Hearing Notice form to the Department and to the Office of the Long-Term Care Ombudsman on the same day the notice is delivered to the resident or the resident's legal representative. (d) The facility is responsible for providing a request for hearing from the resident or the resident’s legal representative, to the Department, within 24 hours of receiving it. (18) Administrative hearings requested under (17) will be conducted according to (19) of this rule. (19) INFORMAL CONFERENCE AND ADMINISTRATIVE HEARING. Except when a facility has had its license revoked, not renewed, voluntarily surrendered, or terminates its Medicaid contract, a resident who receives an involuntary move-out notice is entitled to an administrative hearing, provided the resident or resident's designee requests an administrative hearing in a timely manner. (a) A resident who receives a Move-Out and Hearing Notice can request a formal administrative hearing: (A) Residents have the following deadlines for requesting an administrative hearing after receipt of the notice: (i) Within ten (10) business days, for a 30-day notice. (ii) Within five (5) business days, for a less than 30-day notice. (B) If a resident wants to preserve the right to an administrative hearing, the resident, the resident’s legal representative, or the Long Term Care Ombudsman may check the appropriate box on the Move-Out and Hearing Notice (form APD 0567 and form MSC 0443), and return the notice to the facility. Residents may also exercise their administrative hearing rights by informing the facility, verbally or in writing, of the request for an administrative hearing. (C) If the resident or resident’s legal representative informs the facility of the request for a hearing, the facility must immediately notify the Department. (D) In cases involving a less than 30-day notice or where the resident is incapacitated and does not have a legal representative, the Office of the Long-Term Care Ombudsman is allowed to provide notice to the Department on behalf of the resident, requesting an administrative hearing. (E) The resident, resident’s legal representative, the Long Term Care Ombudsman, or the facility may request the Department facilitate an informal conference before the administrative hearing, to discuss the move-out. (F) The Department may extend the time allowed requesting an informal conference or administrative hearing if the Department determines that good cause exists for failure to make a timely request. (G) The Department shall immediately notify the Office of Administrative Hearings of the request for a formal administrative hearing and, for a less than 30-day move-out, shall request an expedited hearing be held within 5 business days. (H) The Department may decide to hold an informal conference to resolve the matter without a formal administrative hearing. The Department shall notify all appropriate parties of the informal conference and shall facilitate the conference. (I) If the Department decides to hold an informal conference, the conference shall be scheduled to be held: (i) Within ten (10) business days of the Department receiving the request for hearing, for a 30 day move-out. (ii) Within four (4) business days of the Department receiving the request for hearing, for a less than 30-day move-out. (J) No formal administrative hearing shall be held if the resident is satisfied with the outcome of the informal conference. (b) The resident who has received a Less Than 30-Day Move-Out Notice will be allowed to continue to reside in the facility until the hearing process is completed unless substantial evidence is provided by the facility to the Department documenting that the change of behavior or medical condition of the resident creates a serious and immediate threat to the resident, other residents, or staff and all reasonable alternatives to move-out (consistent with the orders of the attending physician or primary care provider) have been attempted and documented in the resident’s medical record. (A) When a hearing has been requested, the Department shall request the Office of Administrative Hearings hold an expedited administrative hearing within five (5) business days. (B) When a hearing has been requested, but the resident has been moved out of the facility, the facility must hold the resident's room, without charge for room and board or services, pending resolution of the administrative hearing. The facility may not rent the resident's unit pending resolution of the administrative hearing. (20) A resident who was admitted January 1, 2006 or later may be moved without advance notice if all of the following are met: (a) The facility was not notified before admission that the resident is on probation, parole, or post-prison supervision after being convicted of a sex crime. (b) The facility learns the resident is on probation, parole, or post-prison supervision after being convicted of a sex crime. (c) The resident presents a current risk of harm to another resident, staff, or visitor in the facility, as evidenced by: (A) Current or recent sexual inappropriateness, aggressive behavior of a sexual nature, or verbal threats of a sexual nature; or (B) Current communication from the State Board of Parole and Post-Prison Supervision, Department of Corrections, or community corrections agency parole or probation officer that the individual's Static 99 score or other assessment indicates a probable sexual re-offense risk to others in the facility. (d) Before the move, the facility must contact the Department's central office in Salem by telephone and review the criteria in sections (11), (12) and (13) of this rule. The Department shall respond within one working day of contact by the facility. The Department of Corrections parole or probation officer must be included in the review, if available. The Department shall advise the facility if rule criteria for immediate move-out are not met. DHS shall assist in locating placement options. (e) A written move-out notice must be completed on form SDS 0568A. The form must be filled out in its entirety and a copy of the notice delivered in person, to the resident, or the resident's legal representative, if applicable. Where a person lacks capacity and there is no legal representative, a copy of the notice to move-out shall be immediately faxed or emailed to the State Long Term Care Ombudsman. (f) Before the move, the facility shall orally review the notice and right to object with the resident or legal representative and determine if a hearing is requested. A request for hearing does not delay the involuntary move-out. The facility shall immediately telephone the Department's central office in Salem when a hearing is requested. The hearing shall be held within five business days of the resident's move. No informal conference shall be held before the hearing.