OAR 411-323-0075: Civil Penalties

(1) In addition to any other liability or penalty, the Department may impose a civil penalty for a violation in accordance with ORS 427.900 when, after being notified of the violation, an agency does not come into compliance within the time frame specified by the Department. Violations that may result in a civil penalty are limited to: (a) Failure to complete a recommended action that resulted from a serious incident, or from an abuse investigation as required in OAR 411-323-0063(8). (b) Failure to implement the requirements of an advisory letter or a serious violation letter as required by OAR 411-323-0055(2). (c) Failure to allow or cooperate with an abuse investigation as required by OAR 411-323-0040(1). (d) Failure to complete the staffing survey as required by OAR 411-323-0055(6) or the report required by OAR 411-323-0055(7). (e) A violation of OAR 411-323-0050(10) or OAR 411-450-0080(29). (2) In addition to any other liability or penalty, the Department may impose a civil penalty in accordance with ORS 427.900 for a substantiated finding of abuse arising from deliberate or other than accidental action or inaction where the abuse resulted in the death, serious injury, rape, or sexual abuse of an individual. For this section: (a) "Rape" means rape in the first degree as defined in ORS 163.375, rape in the second degree as defined in ORS 163.365, and rape in the third degree as defined in ORS 163.355. (b) "Serious injury" means physical injury that creates a substantial risk of death or that causes serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ. (c) "Sexual abuse" has the meaning defined in ORS 430.735. (3) In considering whether to impose a civil penalty and the size of the civil penalty, the Department shall consider all of the following: (a) The past history of the agency incurring a civil penalty in taking all reasonable steps or procedures necessary or appropriate to correct any violation. (b) Any prior violations of statutes or rules pertaining to the agency’s program. (c) The economic and financial conditions of the agency incurring the civil penalty. (d) The immediacy and extent to which a violation threatens or threatened the health, safety, and welfare of individuals. (4) Unless otherwise specified in rule, the amount of a civil penalty may not exceed $500 for each violation. (5) The amount of a civil penalty assessed under section (2) of this rule is not less than $2,500 for each occurrence of substantiated abuse, not to exceed $15,000 in 90 calendar days. (6) When an agency receives notification from the Department of a violation for which a civil penalty or other administrative sanction may be imposed, the agency must take action to immediately eliminate the violation. (7) The Department shall provide the executive director of the agency, or their designee, written notice of the imposition of a civil penalty consistent with ORS 183.415 including all of the following: (a) A statement of the agency’s right to a hearing, with a description of the procedure and time frame to request a hearing, or a statement of the time and place of the hearing. (b) A statement of the authority and jurisdiction under which the hearing is to be held. (c) A reference to the specific sections of the statutes and rules involved. (d) A short and plain statement of the matters asserted or charged. (e) A statement indicating whether and under what circumstances an order by default may be entered. (f) A statement that active duty servicemembers have a right to stay proceedings under the federal Servicemembers Civil Relief Act and may contact the Oregon State Bar or the Oregon Military Department for more information. The statement must include the toll-free telephone numbers for the Oregon State Bar and the Oregon Military Department and the Internet address for the United States Armed Forces Legal Assistance Legal Services Locator website. (8) The executive director, or their designee, has 21 calendar days from the receipt of the notice of civil penalty in which to make a written application for a hearing before the Department. (9) If the agency fails to request a hearing within 21 calendar days, a Final Order may be entered by the Department assessing a civil penalty. (10) All hearings are conducted in accordance with the applicable provisions of ORS chapter 183. (11) If, after a hearing, the agency is found to be in violation, a Final Order shall be mailed by the Department assessing a civil penalty. (12) If the order is not appealed, the amount of the civil penalty is payable within 10 calendar days after the order imposing the civil penalty becomes final by operation of law. If the order is appealed and is sustained, the amount of the civil penalty is payable within 10 calendar days after the court decision. The order, if not appealed or sustained on appeal, constitutes a judgment and may be filed in accordance with the provisions of ORS 183.745. Execution may be issued upon the order in the same manner as execution upon a judgment of a court of record. (13) Judicial review of civil penalties imposed under ORS 427.900 are provided under ORS 183.480, except that the court may, in its discretion, reduce the amount of the civil penalty. (14) Unless otherwise directed by statute, all civil penalties recovered under ORS 427.900 are paid into the State Treasury and shall be deposited to the Oregon Department of Human Services Account established under ORS 409.060 and may be used by the division of the Department that provides developmental disabilities services for system improvements and the implementation of policies.