OAR 415-012-0075: Licensure Conditions

(1) The Division may at any time and at its discretion impose conditions on a license upon a finding that: (a) There is a threat to the health, welfare, or safety of an individual or the public; (b) There is substantiated evidence of abuse, neglect, or mistreatment by the applicant, provider, or provider staff; (c) The applicant or provider employs or contracts with any program staff that fails to meet relevant minimum qualifications described in these rules, service delivery rules, or other applicable law; (d) The applicant or provider substantially fails to comply with these rules, service delivery rules, or other applicable law; or (e) The applicant or provider fails to fully implement a Plan of Correction (POC) or adequately maintain a POC. (2) When deciding whether to impose conditions rather than denying, suspending, refusing to renew, or revoking a license, the Division shall consider all of the circumstances including but not limited to the following criteria: (a) The expressed willingness and demonstrated ability of the applicant or provider to gain and maintain compliance with all applicable administrative rules and laws; (b) The submitted POC prescribing reasonable, sustained, and timely resolution to areas of non-compliance; (c) The relative availability of alternative providers to address any service needs that would be unmet if the applicant or provider is not issued a license with conditions as an alternative to revocation or refusal to award a license; or (d) The applicant or provider’s historical compliance with Division rules or orders, previous conditions placed on licenses, and previous plans of correction. (3) Conditions to the license may include: (a) Requiring corrective actions with timeframes for completion to correct areas of non-compliance or concern identified by the Division; (b) Limiting the total number of individuals enrolled in services or on a waitlist for services; (c) Limiting the population, such as narrowing the age range of individuals who the applicant or provider may serve; (d) Limiting the scope and type of services that the applicant or provider may provide; (e) Other conditions deemed necessary by the Division to ensure the health and safety of individuals and the public; and (f) Other conditions deemed necessary by the Division for the purpose of ensuring regulatory compliance with these or other applicable administrative rules and laws. (4) The Division may issue a notice of intent to impose conditions in accordance as described in section (15) of this rule, or may impose conditions on a license With Notice or Without Notice as described in sections (4) to (8). In imposing conditions With Notice or Without Notice, a provider or applicant may request an informal conference: (a) The Division may issue the conditions With Notice by issuing a Notice of Impending Imposition of License Condition (Notice) at least 48 hours prior to issuing an Order Imposing License Condition (Order) to a provider or applicant. After the Order is issued, the Division shall revise the license to indicate the conditions that have been ordered; (b) The Division may impose the conditions without notice only if the Division determines that there is an imminent threat to individuals and the Division determines it is not safe or practical to give an applicant or provider advance notice. The Division may impose the conditions without notice by issuing an Order to a provider or applicant. After the Order is issued, the Division shall revise the license to indicate the conditions that have been ordered. (5) The Notice shall be provided in writing or orally with subsequent written notice. When the Notice is provided in writing, it shall be sent by certified or registered mail or delivered in person to the applicant or provider. If the Notice is provided orally, it may be provided by telephone or in person to the applicant, provider, or person represented as being in charge of the program. The Notice shall: (a) Describe the acts or omissions of the applicant or provider and the circumstances that led to the finding that the imposition of a license condition is warranted; (b) Describe why the acts or omissions and the circumstances create a situation for which the imposition of a condition is warranted; (c) Provide a brief statement identifying the impending condition; (d) Identify an individual within the Division who the applicant or provider may contact and who is authorized to enter the Order or to make recommendations regarding issuance of the Order; (e) Specify the date and time the Order is scheduled to take effect; and (f) Inform the applicant or provider that they may request an informal conference prior to the issuance of the Order, or if the provider has already requested an informal conference, specify the date and time that an informal conference shall be held. (6) If an informal conference is requested regarding conditions, the conference shall be held at a location designated by the Division. If the Division determines it to be appropriate, the conference may be held by telephone. Following the informal conference, the Division may modify the conditions. The timing of the informal conference is described as follows: (a) If a Notice is issued, the applicant or provider may request an informal conference to object to the Division’s proposed action before the condition is scheduled to take effect. The request for an informal conference shall be made prior to the date the conditions are intended to be effective. If requested timely, the informal conference shall be held within seven days of the request. The Order may be issued at any time after the informal conference; (b) If an Order is issued without a prior Notice, the applicant or provider may within two business days of the issuance of the Order request an informal conference. If timely requested, the informal conference shall be held within two business days of receipt of the request. Following the informal conference, the Division at its discretion may modify the conditions. (7) When an Order is issued, the Division must serve the Order either personally or by registered or certified mail. The Order must include the following statements: (a) The authority and jurisdiction under which the condition is being issued; (b) A reference to the particular sections of the statute and administrative rules involved; (c) The effective date of the condition; (d) A short and plain statement of the nature of the matters asserted or charged; (e) The specific terms of the license condition; (f) Right to request a contested case hearing under ORS Chapter 183; (g) A statement that if a request for hearing is not received by the Division within 21 days of the date of the Order, the applicant or provider shall waive the right to a hearing under ORS Chapter 183; (h) Findings of specific acts or omissions of the applicant or provider that are grounds for the condition and the reasons the acts or omissions create a situation for which the imposition of a license condition is warranted; and, (i) A statement that the Division may combine the hearing on the Order with any other proceeding affecting the license. The procedures for the combined proceeding must be those applicable to the other proceedings affecting the license. (8) Hearing: (a) If the Division issues an Order, the applicant or provider may request a contested case hearing pursuant to ORS Chapter 183; (b) The Division must receive the request for a hearing within 21 days of the date of Order. If a request for hearing is not received by the Division within 21 days of the date of the Order, the applicant or provider shall waive the right to a hearing under ORS Chapter 183; (c) The applicant or provider may request a contested case hearing regarding the imposition of the conditions in addition to or in lieu of an informal conference. Requesting a contested case hearing may not delay the effective date of the conditions. (9) When a restriction of enrollment or intake is in effect pursuant to an Order, the Division in its sole discretion may authorize the provider to admit or serve new individuals for whom the Division determines that alternate placement or provider is not feasible. (10) Conditions may be imposed for the duration of the license or limited to a shorter period of time. If the condition corresponds to the license period, the reasons for the condition shall be considered at the time of renewal to determine if the conditions are still appropriate. The effective date and expiration date of the condition shall be indicated on the license. (11) When the applicant or provider determines that the circumstances leading to imposition of the condition no longer exist and that effective systems are in place to ensure that similar deficiencies do not reoccur, the applicant or provider may make written request to the Division for re-inspection. (12) Re-inspection: (a) If the Division finds that the situation for which the condition was imposed has been corrected and finds that systems are in place to ensure that similar deficiencies do not reoccur, the condition shall be withdrawn, and the Division shall revise the license accordingly. Following re-inspection, the Division shall notify the facility by telephone of the decision to withdraw the condition. Telephone notification shall be followed by written notification; (b) If the Division determines after a re-inspection that the situation for which the condition was imposed continues to exist or that there are not sufficient systems in place to prevent similar deficiencies, the license condition may not be withdrawn, and the Division is not obligated to re-inspect again for at least 45 days. A decision not to withdraw the Order shall be given to the applicant or provider in writing and shall include information of the right to a contested case hearing pursuant to ORS Chapter 183. Nothing in this rule is intended to limit the Division’s authority to inspect facilities at any time. (13) The Division may deny, suspend, refuse to renew, or revoke the license when the provider or applicant fails to timely comply with one or more conditions. (14) When the Division orders a condition be placed on a license With Notice or Without Notice, the applicant or provider may request a contested case hearing. (15) In addition to, or instead of, imposing conditions With Notice or Without Notice as described in sections (4) to (8) and (14), the Division may issue a notice of intent to impose a condition with the opportunity for a contested case hearing under ORS Chapter 183 prior to imposing the condition. Notices of intent to impose a condition shall be issued consistent with sections (1)-(3) and (9)-(13).