OAR 411-325-0460
Civil Penalties
(1)
For purposes of imposing civil penalties, a 24-hour residential setting licensed under ORS 443.400 (Definitions for ORS 443.400 to 443.455) to 443.455 (Civil penalties) and ORS 443.991 (Penalties)(2) is considered to be a long-term care facility subject to ORS 441.705 (Definitions for ORS 441.705 to 441.745) to 441.745 (Penalties to Quality Care Fund).(2)
The Department issues the following schedule of penalties applicable to 24-hour residential settings as provided for under ORS 441.705 (Definitions for ORS 441.705 to 441.745) to 441.745 (Penalties to Quality Care Fund):(a)
Violations of any requirement within any part of the following rules may result in a civil penalty up to $500 per day for each violation not to exceed $6,000 for all violations for any licensed 24-hour residential setting within a 90-day period:(A)
411-325-0025 (Program Management)(3), (4), (5), (6), (7), or (8);(B)
411-325-0120 (Medical Services)(2) or (4);(C)
411-325-0130 (Food and Nutrition);(D)
411-325-0140 (Physical Environment);(E)
411-325-0150 (General Safety);(F)
411-325-0170 (Staffing Requirements);(G)
411-323-0063 (Abuse and Incident Handling and Reporting);(H)
411-325-0200 (Transportation);(I)
411-325-0220 (Individual Furnishings)(1) or (3);(J)
411-325-0230 (Emergency Plan and Safety Review);(K)
411-325-0240 (Assessment of Fire Evacuation Assistance), 411-325-0250 (Fire Drill Requirements and Fire Safety), 411-325-0260 (Individual Fire Evacuation Safety Plans), 411-325-0270 (Fire Safety Requirements for Homes on a Single Property or on Contiguous Property Serving Six or More Individuals), 411-325-0280 (Fire Safety Requirements for Homes or Duplexes Serving Five or Fewer Individuals), and 411-325-0290 (Fire Safety Requirements for Apartments Serving Five or Fewer Individuals);(L)
411-325-0300 (Residency Agreements, Individual Rights, Complaints, Notification of Planned Action, and Hearings) and 411-325-0350 (Behavior Supports and Physical Restraints);(M)
411-325-0360 (Psychotropic Medications and Medications for Behavior);(N)
411-325-0380 (Handling and Managing Individuals’ Money); and(O)
411-004-0020 (Home and Community-Based Services and Settings), 411-004-0030 (Person-Centered Service Plans), and 411-004-0040 (Individually-Based Limitations).(b)
Civil penalties of up to $300 per day per violation may be imposed for violations of any section of these rules not listed in subsection (a)(A) to (a)(O) of this section if a violation has been cited on two consecutive inspections or surveys of a 24-hour residential setting where such surveys are conducted by an employee of the Department. Penalties assessed under this section of this rule may not exceed $6,000 within a 90-day period.(3)
Monitoring occurs when a 24-hour residential setting is surveyed, inspected, or investigated by an employee or designee of the Department or an employee or designee of the Office of State Fire Marshal.(4)
In imposing a civil penalty pursuant to the schedule published in section (2) of this rule, the Department considers the following factors:(a)
The past history of the provider incurring a penalty in taking all feasible steps or procedures necessary or appropriate to correct any violation;(b)
Any prior violations of statutes or rules pertaining to 24-hour residential settings;(c)
The economic and financial conditions of the provider incurring the penalty; and(d)
The immediacy and extent to which the violation threatens or threatened the health, safety, or well-being of individuals.(5)
When a provider receives notification from the Department of a violation for which a penalty or other liability may be imposed, the provider must take action to eliminate the violation in a reasonable time:(a)
Not to exceed 30 calendar days after the first notice of a violation; or(b)
In cases where a violation requires more than 30 calendar days to correct, such time as is specified in a plan of correction found acceptable by the Department.(6)
Any civil penalty imposed under ORS 443.455 (Civil penalties) and 441.710 (Civil penalties) becomes due and payable when the provider incurring the penalty receives a notice in writing from the Director of the Department. The notice referred to in this section of this rule is sent by registered or certified mail and includes:(a)
A reference to the particular sections of the statute, rule, standard, or order involved;(b)
A short and plain statement of the matters asserted or charged;(c)
A statement of the amount of the penalty or penalties imposed; and(d)
A statement of the right of the provider to request a hearing.(7)
The person representing the provider to whom the notice is addressed has 20 calendar days from the date of mailing of the notice in which to make a written application for a hearing before the Department.(8)
All hearings are conducted pursuant to the applicable provisions of ORS chapter 183.(9)
If the provider notified fails to request a hearing within 20 calendar days, an order may be entered by the Department assessing a civil penalty.(10)
If, after a hearing, the provider is found to be in violation of a license, rule, or order listed in ORS 441.710 (Civil penalties)(1), an order may be entered by the Department assessing a civil penalty.(11)
A civil penalty imposed under ORS 443.455 (Civil penalties) or 441.710 (Civil penalties) may be remitted or reduced upon such terms and conditions as the Director of the Department considers proper and consistent with individual health and safety.(12)
If the order is not appealed, the amount of the penalty is payable within 10 calendar days after the order is entered. If the order is appealed and is sustained, the amount of the 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 (Civil penalty procedures). Execution may be issued upon the order in the same manner as execution upon a judgment of a court of record.(13)
A violation of any general order or Final Order pertaining to a 24-hour residential setting issued by the Department is subject to a civil penalty in the amount of not less than $5 and not more than $500 for each and every violation.(14)
Judicial review of civil penalties imposed under ORS 441.710 (Civil penalties) are provided under ORS 183.480 (Judicial review of agency orders), except that the court may, in its discretion, reduce the amount of the penalty.(15)
All penalties recovered under ORS 443.455 (Civil penalties) and 441.710 (Civil penalties) to 441.740 (Judicial review) are paid into the State Treasury and shall be deposited in the Long-Term Care Ombudsman account established in ORS 441.419 (Long Term Care Ombudsman Account).
Source:
Rule 411-325-0460 — Civil Penalties, https://secure.sos.state.or.us/oard/view.action?ruleNumber=411-325-0460.