OAR 411-034-0040
Employer-Employee Relationship
(1)
EMPLOYER - EMPLOYEE RELATIONSHIP. The relationship between a provider and an eligible individual or the individual’s representative is that of employee and employer.(2)
JOB DESCRIPTION. As an employer, it is the responsibility of an individual or the individual’s representative to create and maintain a job description for a potential provider that is in coordination with the individual’s plan for services.(3)
PROVIDER BENEFITS. The only benefits available to homecare and personal support workers are those negotiated in a collective bargaining agreement and as provided in statute. The collective bargaining agreement does not include participation in the Public Employees Retirement System or the Oregon Public Service Retirement Plan. Homecare and personal support workers are not state or Division employees.(4)
EMPLOYER RESPONSIBILITIES. For an individual to be eligible for State Plan personal care services, the individual or the individual’s representative must demonstrate the ability to:(a)
Locate, screen, and hire a provider meeting the requirements in OAR 411-034-0050 (Provider Qualifications);(b)
Supervise and train a provider;(c)
Schedule work, leave, and coverage;(d)
Track the hours worked and verify the authorized hours completed by a provider;(e)
Recognize, discuss, and attempt to correct any performance deficiencies with the provider and provide appropriate, progressive, disciplinary action as needed; and(f)
Discharge an unsatisfactory provider.(g)
Abide by federal and state laws related to employer responsibilities, including ensuring the employee is not harassed.(5)
An eligible individual exercises control as the employer and directs the provider in the provision of the services.(6)
The Department makes payment for State Plan personal care services to the provider on an individual’s behalf. Payment for services is not guaranteed until the Department, Division, or Designee has verified that an individual’s provider meets the qualifications in OAR 411-034-0050 (Provider Qualifications).(7)
In order to receive State Plan personal care services from a personal support worker or homecare worker, an individual must be able to:(a)
Meet all of the employer responsibilities described in section (4) of this rule; or(b)
Designate a representative to meet the employer responsibilities described in section (4) of this rule.(8)
TERMINATION OF PROVIDER EMPLOYMENT. Termination and the grounds for termination of employment are determined by an individual or the individual’s representative. An individual has the right to terminate an employment relationship with a provider at any time and for any reason. An individual or the individual’s representative must establish an employment agreement at the time of hire. The employment agreement may include grounds for dismissal, notice of resignation, work scheduling, and absence reporting.(9)
After appropriate intervention, an individual unable to meet the employer responsibilities in section (4) of this rule may be determined ineligible for State Plan personal care services.(a)
Contracted in-home care agency services are offered when an individual is ineligible for State Plan personal care services. Other community-based or nursing facility services are offered to an individual if the individual meets the eligibility criteria for community-based or nursing facility services.(b)
An individual determined ineligible for State Plan personal care services may request State Plan personal care services at the individual’s next annual re-assessment. Improvements in health and cognitive functioning may be factors in demonstrating the individual’s ability to meet the employer responsibilities described in section (4) of this rule. The waiting period may be shortened if an individual is able to demonstrate the ability to meet the employer responsibilities sooner than the individual’s next annual re-assessment(10)
REPRESENTATIVE:(a)
An individual or an individual’s legal representative may designate a representative to act on the individual’s behalf to meet the employer responsibilities in section (4) of this rule. An individual’s legal representative may be designated as the individual’s representative.(b)
The Department, Division, or Designee may deny an individual’s request for a representative if the representative has --(A)
A history of a substantiated abuse of an adult as described in OAR chapter 411, division 020, OAR chapter 407, division 045, or OAR chapter 943, division 045;(B)
A history of founded abuse of a child as described in ORS 419B.005 (Definitions);(C)
Participated in billing excessive or fraudulent charges; or(D)
Failed to meet the employer responsibilities in section (4) of this rule, including previous termination as a result of failing to meet the employer responsibilities in section (4) of this rule.(c)
An individual is given the option to select another representative if the Department, Division, or Designee suspends, terminates, or denies an individual’s request for a representative for the reasons described in subsection (b) of this section.(d)
An individual with a guardian must have a representative for service planning purposes. A guardian may designate themselves the individual’s representative.
Source:
Rule 411-034-0040 — Employer-Employee Relationship, https://secure.sos.state.or.us/oard/view.action?ruleNumber=411-034-0040.