OAR 411-340-0135
Standards for Employers
(1)
EMPLOYER OF RECORD. An employer of record is required when a personal support worker who is not an independent contractor is selected by an individual to provide supports. The Department may not act as the employer of record.(2)
SERVICE AGREEMENT. The employer must create and maintain a service agreement for a personal support worker that is in coordination with the services authorized in the ISP. The service agreement serves as a written job description for the employed personal support worker.(3)
BENEFITS. Only personal support workers qualify for benefits. The benefits provided to personal support workers are described in OAR chapter 411, division 375.(4)
INTERVENTION. For the purpose of this rule, “intervention” means the action the Department or the designee of the Department requires when an employer fails to meet the employer responsibilities described in this rule. Intervention includes, but is not limited to:(a)
A documented review of the employer responsibilities described in section (5) of this rule;(b)
Training related to employer responsibilities;(c)
Corrective action taken as a result of a personal support worker filing a complaint with the Department, the designee of the Department, or other agency who may receive labor related complaints;(d)
Identifying an employer representative if an individual is not able to meet the employer responsibilities described in section (5) of this rule; or(e)
Identifying another representative if the current employer representative is not able to meet the employer responsibilities described in section (5) of this rule.(5)
EMPLOYER RESPONSIBILITIES.(a)
For an individual to be eligible for support provided by a personal support worker, an employer must demonstrate the ability to:(A)
Locate, screen, and hire a qualified personal support worker;(B)
Supervise and train the personal support worker;(C)
Schedule work, leave, and coverage;(D)
Track the hours worked and verify the authorized hours completed by the personal support worker;(E)
Recognize, discuss, and attempt to correct, with the personal support worker, any performance deficiencies and provide appropriate, progressive, disciplinary action as needed; and(F)
Discharge an unsatisfactory personal support worker.(b)
Indicators that an employer may not be meeting the employer responsibilities described in subsection (a) of this section include, but are not limited to:(A)
Personal support worker complaints;(B)
Multiple complaints from a personal support worker requiring intervention from the Department or Brokerage as defined in section (4) of this rule;(C)
Frequent errors on timesheets, mileage logs, or other required documents submitted for payment that results in repeated coaching from the Department or Brokerage;(D)
Complaints to Medicaid Fraud involving the employer; or(E)
Documented observation by the Department or Brokerage of services not being delivered as identified in an ISP.(c)
The Department or the Brokerage may require intervention as defined in section (4) of this rule when an employer has demonstrated difficulty meeting the employer responsibilities described in subsection (a) of this section.(d)
An individual may not receive support provided by a personal support worker if, after appropriate intervention and assistance, an employer is not able to meet the employer responsibilities described in subsection (a) of this section.(A)
An individual determined ineligible to be an employer of a personal support worker and unable to designate an employer representative, may not request support provided by a personal support worker until the next annual ISP. Improvements in health and cognitive functioning may be factors in demonstrating the ability of the individual to meet the employer responsibilities described in subsection (a) of this section. If an individual is able to demonstrate the ability to meet the employer responsibilities sooner than the next annual ISP, the individual may request the waiting period be shortened.(B)
An individual determined ineligible to be an employer of a personal support worker is offered other available service options that meet the service needs of the individual, including support through a contracted qualified provider organization or general business provider when available. As an alternative to in-home support, the Department or the designee of the Department may offer other available services through the Home and Community Based Services Waiver or State Plan.(6)
DESIGNATION OF EMPLOYER RESPONSIBLITIES.(a)
An individual not able to meet all of the employer responsibilities described in section (5)(a) of this rule must:(A)
Designate an employer representative in order for the individual to receive or continue to receive in home support provided by a personal support worker; or(B)
Select a provider organization or general business provider to provide support for the individual.(b)
An individual able to demonstrate the ability to meet some of the employer responsibilities described in section (5)(a) of this rule must:(A)
Designate an employer representative to fulfill the responsibilities the individual is not able to meet in order for the individual to receive or continue to receive support provided by a personal support worker; and(B)
On a Department approved form, document the specific employer responsibilities performed by the individual and the employer responsibilities performed by the employer representative of the individual.(c)
When the employer representative of an individual is not able to meet the employer responsibilities described in section (5)(a) or the qualifications in section (7)(c) of this rule, an individual must:(A)
Designate a different employer representative in order for the individual to receive or continue to receive in home support provided by a personal support worker; or(B)
Select a provider organization or general business provider to provide in-home support for the individual.(7)
EMPLOYER REPRESENTATIVE.(a)
An individual, or the legal representative of an individual, may designate an employer representative to act on behalf of the individual, to meet the employer responsibilities described in section (5)(a) of this rule. The legal or designated representative of an individual may be the employer.(b)
An employer who is also the personal support worker of support must seek an alternate employer for purposes of the employment of the personal support worker. The alternate employer must:(A)
Track the hours worked and verify the authorized hours completed by the personal support worker; and(B)
Document the specific employer responsibilities performed by the employer on a Department approved form.(c)
The Department or the Brokerage may suspend, terminate, or deny a request for an employer representative if the requested employer representative has:(A)
A history of substantiated abuse of an adult as described in OAR 411-045-0250 to 411-045-0370;(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 (5)(a) or (7)(b) of this rule, including previous termination as a result of failing to meet the employer responsibilities in section (5)(a) or (7)(b).(d)
If the Department or Brokerage suspends, terminates, or denies a request for an employer representative for the reasons described in subsection (c) of this section, an individual may select another employer representative.(8)
NOTICE.(a)
The Department or the Brokerage, respectively, shall mail a notice identifying the individual, and if applicable the employer representative and legal or designated representative of the individual, when:(A)
The Department or the Brokerage denies, suspends, or terminates an employer from performing the employer responsibilities described in sections (5)(a) or (7)(b) of this rule; and(B)
The Department or the Brokerage denies, suspends, or terminates an employer representative from performing the employer responsibilities described in section (5)(a) or (7)(b) of this rule because the employer representative does not meet the qualifications in section (7)(c) of this rule.(b)
BROKERAGE ISSUED NOTICES. An individual receiving support from a personal support worker, or as applicable the legal or designated representative or employer representative of the individual, may appeal a notice issued by the Brokerage by requesting a review by Director of the Brokerage.(A)
For an appeal regarding denial, suspension, or termination of an employer to be valid, written notice of the appeal and request for review must be received by the Brokerage within 45 days from the date of the notice.(B)
The Brokerage Director shall complete a review and issue a decision within 30 days of the date the written appeal was received by the Brokerage.(C)
If an individual, or as applicable the legal or designated representative or employer representative of the individual, is dissatisfied with the decision of the Brokerage Director, the individual, or as applicable the legal or designated representative or employer representative of the individual, may request an administrator review by the Director of the Department.(D)
For an appeal of the decision of the Brokerage to be valid, written notice of the appeal and request for an administrator review must be received by the Department within 15 days from the date of the decision of the Brokerage.(E)
The Director shall complete an administrator review within 30 days from the date the written appeal was received by the Department.(F)
The determination of the Director is the final response from the Department.(c)
DEPARTMENT ISSUED NOTICES. An individual receiving support from a personal support worker, or as applicable the legal or designated representative of the individual, may appeal a notice issued by the Department by requesting an administrator review by the Director of the Department.(A)
For an appeal regarding denial, suspension, or termination of an employer to be valid, written notice of the appeal and request for an administrator review must be received by the Department within 45 days of the date of the notice.(B)
The Director shall complete an administrator review and issue a decision within 30 days from the date the written appeal was received by the Department.(C)
The determination of the Director is the final response from the Department.(d)
When a denial, suspension, or termination of an employer results in the Department denying, suspending, or terminating an individual from in-home support, the hearing rights in OAR chapter 411, division 318 apply.
Source:
Rule 411-340-0135 — Standards for Employers, https://secure.sos.state.or.us/oard/view.action?ruleNumber=411-340-0135.