OAR 411-346-0220: Conditions, Denial, Suspension, Revocation, Refusal to Renew, and Civil Penalties

(1) CONDITIONS. (a) The Department may attach conditions to a certificate that limit, restrict, or specify other criteria for the operation of a child foster home. The type of condition attached to a certificate must directly relate to the risk of harm or potential risk of harm to children. (b) The Department may attach conditions to a certificate upon any of the following findings: (A) Information on the application or initial inspection requires a condition to protect the health, safety, or welfare of children. (B) A threat to the health, safety, or welfare of a child exists. (C) There is evidence of abuse. (D) The child foster home is not being operated in compliance with these rules or the rules in OAR chapter 411, divisions 004, 304, and 318. (c) Conditions the Department may impose on a certificate include, but are not limited to, the following: (A) Restricting the total number of children in the child foster home based upon the ability and capacity of the foster provider to meet the health and safety needs of the children. (B) Requiring alternate caregivers to meet the needs of the children. (C) Requiring additional qualifications or training of the foster provider and alternate caregivers. (D) Restricting a foster provider from allowing a person on the premises who may be a threat to the health, safety, or welfare of a child. (E) Requiring additional documentation. (F) Restricting a foster provider from opening an additional foster home setting. (G) Limiting a foster provider to the care of a specific child. A foster provider with this condition does not receive referrals. (H) Restricting entry. (d) The Department shall impose a condition prohibiting new entry or transfer into a child foster home when there is a death of a child served by the foster provider that results in a protective services investigation and the foster provider was responsible for delivering supports to the child during the time associated with the child’s death. (A) A new entry or transfer may be accepted while the condition is in place, if the entry or transfer approval is granted by the Department and the case management entity. (B) The condition may be terminated: (i) Following the protective services investigation determination that abuse was not a factor in the child’s death; or (ii) At the discretion of the Department upon satisfactory demonstration by the foster provider that: (I) There are adequate protections in place to prevent or minimize risk of harm to other children receiving the same or similar type of services; and (II) Entry of additional children into the child foster home does not negatively impact the foster provider’s ability to safely serve children. (e) The Department issues a written notice to the foster provider when the Department imposes conditions to a certificate. The written notice of conditions includes the conditions imposed by the Department, the reason for the conditions, and the opportunity to request a hearing under ORS chapter 183. (A) Conditions take effect immediately upon issuance of the written notice of conditions or at a later date as indicated on the notice and are a Final Order of the Department unless later rescinded through the hearing process. (B) The conditions imposed remain in effect until the Department has sufficient cause to believe the situation which warranted the condition has been remedied. (f) The foster provider may request a hearing in accordance with ORS chapter 183 and this rule upon written notice of conditions. The request for a hearing must be in writing. (A) The foster provider must request a hearing within 21 calendar days from the receipt of the written notice of conditions. (B) In addition to, or in lieu of a hearing, the foster provider may request an administrative review as described in subsection (g) of this section. The request for an administrative review must be in writing. The administrative review does not diminish the right of the foster provider to a hearing. (C) The Department shall be allowed reasonable requests for setting or postponement of any hearing to allow for the conclusion of a protective services investigation when a condition is imposed related to the protective services investigation. (g) ADMINISTRATIVE REVIEW. (A) In addition to the right to a hearing, a foster provider may request an administrative review by the Director of the Department for imposition of conditions. The request for an administrative review must be in writing. (B) The Department must receive a written request for an administrative review within 10 business days from the date of the notice of conditions. The foster provider may submit, along with the written request for an administrative review, any additional written materials the foster provider wishes to have considered during the administrative review. (C) The determination of the administrative review is issued in writing within 10 business days from the date of the written request for an administrative review, or by a later date as agreed to by the foster provider. (D) The foster provider may request a hearing if the decision of the Department is to affirm the condition. The request for a hearing must be in writing. The Department must receive the written request for a hearing within 21 calendar days from the date of the original written notice of conditions. (h) A foster provider may send a written request to the Department to remove a condition if the foster provider believes the situation that warranted the condition has been remedied. (i) Conditions must be posted with the certificate in a prominent location and be available for inspection at all times. (2) DENIAL, SUSPENSION, REVOCATION, REFUSAL TO RENEW. (a) The Department shall deny, suspend, revoke, or refuse to renew a certificate where it finds there has been substantial failure to comply with these rules. (b) Failure to disclose requested information on the application or providing falsified, incomplete, or incorrect information on the application shall constitute grounds for denial or revocation of the certificate. (c) The Department shall deny, suspend, revoke, or refuse to renew a certificate if the foster provider fails to submit a plan of correction, implement a plan of correction, or comply with a final order of the Department. (d) Failure to comply with OAR 411-346-0200(5) may constitute grounds for denial, revocation, or refusal to renew. (e) The Department may deny, suspend, revoke, or refuse to renew the child foster home certificate where imminent danger to health or safety of a child exists, including any founded report or substantiated abuse. (f) The Department shall deny, suspend, revoke, or refuse to renew a certificate if the foster provider has been convicted of any crime that would have resulted in an unacceptable background check as defined in OAR 407-007-0210 upon certification. (g) Suspension shall result in the removal of a child placed in the foster home and no placements shall be made during the period of suspension. (h) The applicant or foster provider whose certificate has been denied or revoked may not reapply for certification for five years after the date of denial or revocation. (i) The Department shall provide the applicant or the foster provider a written notice of denial, suspension, or revocation that states the reason for such action. (j) Such revocation, suspension, or denial shall be done in accordance with the rules of the Department and ORS chapter 183 that govern contested cases. (3) CIVIL PENALTIES. (a) The Department may impose a civil penalty under ORS 427.900 on a foster provider for a violation of OAR 411-346-0190(19). (b) A civil penalty of not less than $100 and not more than $250 per violation, except as otherwise provided in this rule, may be imposed on a foster provider for a violation of OAR 411-346-0190(19). (c) When a foster provider receives notification from the Department of a violation for which a civil penalty may be imposed, the foster provider must take action to immediately eliminate the violation. (d) The Department shall give the foster provider written notice of the imposition of a civil penalty consistent with ORS 183.415 including all of the following: (A) A statement of the foster provider’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. (e) The foster provider 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. (f) If the foster provider fails to request a hearing within 20 calendar days, a final order may be entered by the Department assessing a civil penalty. (g) All hearings are conducted pursuant to the applicable provisions of ORS chapter 183. (h) If, after a hearing, the foster provider is found to be in violation of OAR 411-346-0190(19), an order may be entered by the Department assessing a civil penalty. (i) 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. (j) 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. (k) 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.