Bill Text: OR HB2055 | 2011 | Regular Session | Introduced
Bill Title: Relating to nursing assistant registry; declaring an emergency.
Spectrum: Unknown
Status: (Failed) 2011-06-30 - In committee upon adjournment. [HB2055 Detail]
Download: Oregon-2011-HB2055-Introduced.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 806
House Bill 2055
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor John A. Kitzhaber
for Department of Human Services)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Requires Department of Human Services to adopt rules defining '
abuse, neglect or misappropriation of resident property' for
purposes of nursing assistant registry to conform definition to
federal law.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to nursing assistant registry; amending ORS 441.677,
441.678, 441.679 and 443.735; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 441.677 is amended to read:
441.677. (1) Within 60 days of receipt of the investigation
documents and the written report described in ORS 441.650 (6)(d)
and 441.676 (2)(d), the Department of Human Services shall
prepare a written letter of determination that states the
department's determinations concerning each incident or problem
alleged in the complaint. The department shall determine whether
the alleged incident or problem was substantiated or
unsubstantiated or whether the department was unable to
substantiate the alleged incident or problem. The department
shall adopt by rule definitions for the terms 'substantiated,'
'unsubstantiated ' and 'unable to substantiate.' If the
department determines that an incident or problem alleged in the
complaint is substantiated, the letter of determination shall
state whether the substantiated incident was abuse or violation
of another rule. If abuse is substantiated, the letter of
determination shall state whether the facility or an individual,
or both, was responsible. The department shall adopt by rule
criteria for determining responsibility for substantiated abuse.
(2) A copy of the letter of determination shall be placed in
the facility's complaint file. Copies shall be sent to the
facility, the complainant and the local office of the department.
The facility and the complainant receiving the letter of
determination shall be given 10 days to respond with additional
information and shall be informed of the appeals process.
(3) If the department determines that an individual who holds a
license or certificate for a health occupation is directly
responsible for the abuse, the department shall send a copy of
its letter of determination and investigation report to the state
agency responsible for licensing or certifying the individual in
the health occupation. { - In instances involving conduct of a
nursing assistant, the department shall give the nursing
assistant 10 days to respond with additional information. The
department also shall notify by mail the nursing assistant
implicated in the investigation of: - }
{ - (a) The nature of the allegations; - }
{ - (b) The date and time of occurrence; - }
{ - (c) The right to a contested case hearing conducted in
accordance with ORS chapter 183; - }
{ - (d) The department's obligation to report the
substantiated findings in the registry maintained under ORS
441.678 after the nursing assistant has had an opportunity for a
contested case hearing; and - }
{ - (e) The fact that the nursing assistant's failure to
request a contested case hearing within 30 days from the date of
the notice will result in the department's reporting the
substantiated findings in the registry maintained under ORS
441.678. - }
{ - (4) Notice sent to the nursing assistant's last-known
address is sufficient to meet the requirements of subsection (3)
of this section. - }
SECTION 2. ORS 441.678 is amended to read:
441.678. { - (1) If a nursing assistant found by the
Department of Human Services to be responsible for abuse does not
respond to the department within 30 days after notice of the
opportunity for a contested case hearing, the department shall
place the abuse finding in the registry maintained under this
section. - }
{ - (2) If a nursing assistant is found to be responsible for
abuse, the nursing assistant is entitled to a contested case
hearing under ORS chapter 183. Upon a finding of abuse in a final
order, the department shall place the finding in the registry
maintained under this section. - }
{ + (1) As used in this section, 'abuse, neglect or
misappropriation of resident property' has the meaning given that
term in rules adopted by the Department of Human Services. The
definition adopted by the department shall, at a minimum, include
all actions or inactions defined as abuse, neglect or
misappropriation of resident property under 42 C.F.R.
488.301. + }
{ - (3) - } { + (2) + } The department shall maintain a
nursing assistant registry that contains, at a minimum, the
information required by 42 C.F.R. 483.156.
{ + (3) If the department finds, in an investigation of an
abuse complaint that a nursing assistant is responsible for
abuse, neglect or misappropriation of resident property, the
department shall provide written notice to the nursing assistant
at the nursing assistant's last-known address that includes:
(a) The nature of the allegations;
(b) The date and time of the occurrence;
(c) The right to a contested case hearing conducted in
accordance with ORS chapter 183; and
(d) The department's obligation under subsection (4) of this
section to enter the substantiated finding in the nursing
assistant registry.
(4) The department shall enter a finding in the nursing
assistant registry if:
(a) The department determines in a contested case hearing that
the finding is substantiated; or
(b) The nursing assistant fails to request a contested case
hearing within 30 days after mailing of the notice described in
subsection (3) of this section. + }
SECTION 3. ORS 441.679 is amended to read:
441.679. (1) Before employing a registered nurse, licensed
practical nurse or nursing assistant, a long term care facility
shall contact the Oregon State Board of Nursing and inquire
whether { + :
(a) + } The person is currently licensed or certified by the
board { - and whether - } { + ;
(b) + } There has been any disciplinary action against the
person
{ - or substantiated abuse findings against a nursing
assistant. - } { + ; and
(c) A nursing assistant has a finding of abuse, neglect or
misappropriation of resident property entered into the registry
maintained under ORS 441.678. + }
(2) A facility shall not employ or retain in employment any
person found by a court of law to have abused, neglected or
mistreated a person receiving long term care services, nor shall
a facility employ or retain in employment any nursing assistant
against whom a finding of { - resident - } abuse { + , neglect
or misappropriation of resident property + } has been entered
into the registry maintained under ORS 441.678.
SECTION 4. ORS 443.735 is amended to read:
443.735. (1) Applications for a license to maintain and operate
an adult foster home shall be made on forms provided by the
licensing agency. Each application shall be accompanied by a fee
of $20 per bed requested for licensing.
(2) Upon receipt of an application and fee, the licensing
agency shall conduct an investigation.
(3) The licensing agency shall not issue an initial license
unless:
(a) The applicant and adult foster home are in compliance with
ORS 443.002 and 443.705 to 443.825 and the rules of the licensing
agency;
(b) The licensing agency has completed an inspection of the
adult foster home;
(c) The licensing agency has completed a criminal records check
under ORS 181.534 on the applicant and any person, other than a
resident, 16 years of age or older who will be residing in the
adult foster home. The criminal records check shall be conducted
in accordance with rules adopted under ORS 181.534;
(d) The licensing agency has determined that the registry
maintained under ORS 441.678 contains no finding that the
applicant or any nursing assistant employed by the applicant has
been responsible for abuse { + , neglect or misappropriation of
resident property + }; and
(e) The applicant has demonstrated to the licensing agency the
financial ability and resources necessary to operate the adult
foster home. The licensing agency shall adopt rules as the agency
deems appropriate that establish the financial standards an
applicant must meet to qualify for issuance of a license and that
protect financial information from public disclosure. The
demonstration of financial ability under this paragraph shall
include, but need not be limited to, providing the licensing
agency with a list of any unsatisfied judgments, pending
litigation and unpaid taxes and notifying the agency regarding
whether the applicant is in bankruptcy. If the applicant is
unable to demonstrate the financial ability and resources
required by this paragraph, the licensing agency may require the
applicant to furnish a financial guarantee as a condition of
initial licensure.
(4) The licensing agency may not renew a license under this
section unless:
(a) The applicant and the adult foster home are in compliance
with ORS 443.002 and 443.705 to 443.825 and the rules of the
licensing agency;
(b) The licensing agency has completed an inspection of the
adult foster home;
(c) The licensing agency has completed a criminal records check
under ORS 181.534 on the applicant and any person, other than a
resident, 16 years of age or older who will be residing in the
adult foster home. The criminal records check under this
paragraph shall be conducted in accordance with rules adopted
under ORS 181.534; and
(d) The licensing agency has determined that the registry
maintained under ORS 441.678 contains no finding that the
applicant or any nursing assistant employed by the applicant has
been responsible for abuse { + , neglect or misappropriation of
resident property + }.
(5)(a) In seeking an initial license and renewal of a license
when an adult foster home has been licensed for less than 24
months, the burden of proof shall be upon the provider and the
adult foster home to establish compliance with ORS 443.705 to
443.825 and the rules of the licensing agency.
(b) In proceedings for renewal of a license when an adult
foster home has been licensed for at least 24 continuous months,
the burden of proof shall be upon the licensing agency to
establish noncompliance with ORS 443.705 to 443.825 and the rules
of the agency.
(6)(a) Persons who have been convicted of one or more crimes
that, as determined by rules of the licensing agency, are
substantially related to the qualifications, functions or duties
of a provider, substitute caregiver or other household member of
an adult foster home shall be prohibited from operating, working
in or residing in an adult foster home.
(b) The licensing agency shall adopt rules that distinguish the
criminal convictions and types of abuse that permanently prohibit
a person from operating, working in or living in an adult foster
home from the convictions and types of abuse that do not
permanently prohibit the person from operating, working in or
living in an adult foster home.
(c) A provider may not hire, retain in employment or allow to
live in an adult foster home, other than as a resident, any
person who the provider knows has been convicted of a
disqualifying crime or has been found responsible for a
disqualifying type of abuse.
(7) A license under ORS 443.725 is effective for one year from
the date of issue unless sooner revoked. Each license shall state
the name of the resident manager of the adult foster home, the
names of all providers who own the adult foster home, the address
of the premises to which the license applies, the maximum number
of residents and the classification of the adult foster home. If,
during the period covered by the license, a resident manager
changes, the provider must within 15 days request modification of
the license. The request must be accompanied by a fee of $10.
(8) No license under ORS 443.725 is transferable or applicable
to any location, persons operating the adult foster home or the
person owning the adult foster home other than that indicated on
the application for licensing.
(9) The licensing agency shall not issue a license to operate
an additional adult foster home to a provider unless the provider
has demonstrated the qualifications and capacity to operate the
provider's existing licensed adult foster homes and has
demonstrated the ability to provide to the residents of those
adult foster homes care that is adequate and substantially free
from abuse and neglect.
(10)(a) All moneys collected under ORS 443.725 to 443.780 from
adult foster homes that are licensed to serve persons with
mental, emotional or behavioral disturbances or alcohol or drug
dependence shall be deposited in a special account in the General
Fund, and are appropriated continuously for payment of expenses
incurred by the Oregon Health Authority.
(b) All moneys collected under ORS 443.725 to 443.780 from
adult foster homes licensed to serve persons who are elderly,
have physical disabilities or have developmental disabilities
shall be deposited in the Quality Care Fund established in ORS
443.001.
(11) Notwithstanding any other provision of this section or ORS
443.725 or 443.738, the licensing agency may issue a 60-day
provisional license to a qualified person if the agency
determines that an emergency situation exists after being
notified that the licensed provider of an adult foster home is no
longer overseeing operation of the adult foster home.
SECTION 5. { + This 2011 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2011 Act takes effect on its
passage. + }
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