OAR 411-320-0170
Contracts and Contractor Disputes
(1)
CONTRACTS.(a)
If the CDDP, or any of the CDDPs services as described in the Department’s contract with the county, is not operated by the county, there must be a contract between the county and the organization operating the CDDP or the services, or a contract between the Department and the operating CDDP. The contract must specify the authorities and responsibilities of each party and conform to the requirements of the rules of the Department pertaining to contracts or any contract requirement with regard to operation and delivery of services.(b)
The CDDP may purchase certain services that are necessary for the CDDP to carry out its operations from a contractor without first providing an opportunity for competition among other contractors.(A)
The contractor selected must also meet Department certification or licensing requirements to provide the type of service to be contracted.(B)
There must be a contract between the service provider and the CDDP that specifies the authorities and responsibilities of each party and conforms to the requirements of the rules of the Department pertaining to contracts or any contract requirement with regard to operation and delivery of services.(c)
When a CDDP contracts with a public agency or private corporation for services, the CDDP must include in the contract only terms that are substantially similar to model contract terms established by the Department. The CDDP may not add contractual requirements, including qualifications for contractor selection that are nonessential to the services being provided under the contract. The CDDP must specify in contracts that disputes arising from these limitations must be resolved according to the complaint procedures contained in section (3) of this rule. For purposes of this rule, the following definitions apply:(A)
“Model contract terms established by the Department” means all applicable material terms and conditions of the omnibus contract, as modified to appropriately reflect a contractual relationship between the contractor and CDDP and any other requirements approved by the Department as local options under procedures established in these rules.(B)
“Substantially similar to model contract terms” means that the terms developed by the CDDP and the model contract terms require the service provider to engage in approximately the same type activity and expend approximately the same resources to achieve compliance.(C)
“Nonessential to the services being provided” means requirements that are not substantially similar to model contract terms developed by the Department.(d)
As a local option, the CDDP may impose a requirement on a public agency or private corporation delivering developmental disabilities services under a contract with the CDDP that is in addition to or different from requirements specified in the omnibus contract if all of the following conditions are met:(A)
The CDDP has provided the affected contractors with the text of the proposed local option as it is to appear in the contract. The proposed local option must include:(i)
The date upon which the local option is to become effective; and(ii)
A complete written description of how the local option is to improve individual independence, productivity, or integration or the protection of individual health, safety, or rights.(B)
The CDDP has sought input from the affected contractors concerning ways the proposed local option impacts individual services;(C)
The CDDP, with assistance from the affected contractors, has assessed the impact on the operations and financial status of the contractors if the local option is imposed;(D)
The CDDP has sent a written request for approval of the proposed local option to the Director of the Department that includes:(i)
A copy of the information provided to the affected contractors;(ii)
A copy of any written comments and a complete summary of oral comments received from the affected contractors concerning the impact of the proposed local option; and(iii)
The text of the proposed local option as it is to appear in contracts with service providers, including the proposed date upon which the requirement is to become effective.(E)
The Department has notified the CDDP that the new requirement is approved as a local option for that program; and(F)
The CDDP has advised the affected contractors of their right and afforded them an opportunity to request mediation as provided in these rules before the local option is imposed.(e)
The CDDP may add contract requirements that the CDDP considers necessary to ensure the siting and maintenance of residential facilities in which individual services are provided. These requirements must be consistent with all applicable state and federal laws and regulations related to housing.(f)
The CDDP must adopt a dispute resolution policy that pertains to disputes arising from contracts with service providers funded by the Department and contracted through the CDDP. Procedures implementing the dispute resolution policy must be included in the contract with any such service provider.(2)
CONTRACT MONITORING. The CDDP must monitor all community developmental disabilities subcontractors to assure that:(a)
Services are provided as specified in the contract between the CDDP and the Department; and(b)
Services are in compliance with these rules and other applicable Department rules.(3)
When a dispute exists between a CDDP and a subcontracted provider regarding the terms of the contract or the interpretation of administrative rule and local dispute resolution efforts have been unsuccessful, either party may request assistance from the Department in mediating the dispute.(a)
The parties must demonstrate a spirit of cooperation, mutual respect, and good faith in all aspects of the mediation process. Mediation must be conducted as follows:(A)
The party requesting mediation must send a written request to the Director of the Department, the CDDP Director, and the Executive Director of the provider, unless other people are named as official contact people in the specific rule or contract under dispute. The request must describe the nature of the dispute and identify the specific rule or contract provisions that are central to the dispute.(B)
Department staff shall arrange the first meeting of the parties at the earliest possible date. The agenda for the first meeting shall include:(i)
Consideration of the need for services of an outside mediator. If the services of an unbiased mediator are desired, agreement shall be made on arrangements for obtaining these services;(ii)
Development of rules and procedures that shall be followed by all parties during the mediation; and(iii)
Agreement on a date by which mediation shall be completed, unless extended by mutual agreement.(C)
Unless otherwise agreed to by all parties:(i)
Each party shall be responsible for the compensation and expenses of their own employees and representatives; and(ii)
Costs that benefit the group, such as services of a mediator, rental of meeting space, purchase of snack food and beverage, etc. shall be shared equally by all parties.(b)
A written statement documenting the outcome of the mediation must be prepared. This statement must consist of a brief written statement signed by all parties or separate statements from each party declaring their position on the dispute at the conclusion of the mediation process. In the absence of written statements from other parties, the Department shall prepare the final report. A final report on each mediation must be retained on file at the Department.(4)
A provider may appeal the imposition of a disputed term or condition in the contract if the provider believes that the contract offered by the CDDP contains terms or conditions that are not substantially similar to those established by the Department in the model contract. The appeal of the imposition of the disputed terms or conditions must be in writing and sent to the Director of the Department within 30 days after the effective date of the contract requirement.(a)
A copy of the notice of appeal must be sent to the CDDP. The notice of appeal must include:(A)
A copy of the contract and any pertinent contract amendments;(B)
Identification of the specific terms that are in dispute; and(C)
A complete written explanation of the dissimilarity between terms.(b)
Upon receipt of the notice of appeal, the CDDP must suspend enforcement of compliance with any contract requirement under appeal by the provider until the appeal process is concluded.(c)
The Director of the Department must offer to mediate a solution in accordance with the procedure outlined in sections (3)(a) and (3)(b) of this rule.(A)
If a solution cannot be mediated, the Director of the Department shall declare an impasse through written notification to all parties and immediately appoint a panel to consider arguments from both parties. The panel must include, at a minimum:(i)
A representative from the Department;(ii)
A representative from another CDDP; and(iii)
A representative from another provider organization.(B)
The panel must meet with the parties, consider the respective arguments, and send written recommendations to the Director of the Department within 45 business days after an impasse is declared, unless the Director of the Department grants an extension.(C)
If an appeal requiring panel consideration has been received from more than one contractor, the Department may organize materials and discussion in any manner deemed necessary, including combining appeals from multiple contractors, to assist the panel in understanding the issues and operating efficiently.(D)
The Director of the Department must notify all parties of his or her decision within 15 business days from the receipt of the recommendations of the panel. The decision of the Department is final. The CDDP must take immediate action to amend contracts as needed to comply with the decision.(d)
Notwithstanding subsection (c) of this section, the Director of the Department has the right to deny the appeal or a portion of the appeal if, upon receipt and review of the notice of appeal, the Director of the Department finds that the contract language being contested is identical to the current language in the county financial assistance agreement with the Department.(e)
The CDDP or the contractor may request an expedited appeal process that provides a temporary resolution if it can be shown that the time needed to follow procedures to reach a final resolution would cause imminent risk of serious harm to individuals or organizations.(A)
The request must be made in writing to the Director of the Department. The request must describe the potential harm and level of risk that shall be incurred by following the appeal process.(B)
The Department must notify all parties of the decision to approve an expedited appeal process within two business days.(C)
If an expedited process is approved, the Department shall notify all parties of the decision concerning the dispute within three additional business days. The decision resulting from an expedited appeal process shall be binding, but temporary, pending completion of the appeal process. All parties must act according to the temporary decision until notified of a final decision.
Source:
Rule 411-320-0170 — Contracts and Contractor Disputes, https://secure.sos.state.or.us/oard/view.action?ruleNumber=411-320-0170.