OAR 411-340-0190: Civil Penalties

(1) COVID-19. (a) A Brokerage must implement all directives related to staffing and operation of the Brokerage to reduce the spread of the Coronavirus (COVID-19) issued through any of the following: (A) Governor’s Executive Order. (B) Written guidance to the Brokerage from the Local Public Health Authority, Tribe, or the Oregon Health Authority Public Health Division. (C) Department transmittals. (b) If paragraphs (A), (B), or (C) of subsection (a) are in conflict, (A) takes precedence over (B) or (C) and (B) takes precedence over (C). (2) The Department may impose a civil penalty under ORS 427.900 on a Brokerage for a violation of section (1) of this rule. (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 Brokerage 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 Brokerage. (c) 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) When a Brokerage receives notification from the Department of a violation for which a civil penalty or other liability may be imposed, the Brokerage must take action to immediately eliminate the violation. (6) The Department shall provide the Director of the Brokerage written notice of the imposition of a civil penalty consistent with ORS 183.415 including all of the following: (a) A statement of the Brokerage’s right to a hearing, with a description of the procedure and timeframe 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. (7) The Brokerage Director, or their designee, has 20 calendar days from the receipt of the notice of civil penalty in which to make a written application for a hearing before the Department. (8) If the Brokerage fails to request a hearing within 20 calendar days, a final order may be entered by the Department assessing a civil penalty. (9) All hearings are conducted pursuant to the applicable provisions of ORS chapter 183. (10) If, after a hearing, the Brokerage is found to be in violation of section (1) of this rule, an order may be entered by the Department assessing a civil penalty. (11) If the order is not appealed, the amount of the civil penalty is payable within 10 calendar days after the order is entered. 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. (12) 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. (13) 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 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.