Bill Text: OR HB4159 | 2012 | Regular Session | Introduced
Bill Title: Relating to residential facilities; declaring an emergency.
Sponsorship: Slight Partisan Bill (Republican 2-1)
Status: (Failed) 2012-03-05 - In committee upon adjournment. [HB4159 Detail]
Download: Oregon-2012-HB4159-Introduced.html
76th OREGON LEGISLATIVE ASSEMBLY--2012 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 205
House Bill 4159
Sponsored by Representative BREWER; Representatives PARRISH, J
SMITH (Presession filed.)
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.
Modifies definition of 'treatment' for purpose of describing
residential facilities that are subject to licensing
requirements. Excludes facility from licensing requirements if
facility provides access to substantially less than 24-hour
on-site care. Directs Oregon Health Authority and Department of
Human Services to identify which agency is responsible with
respect to residential facility operating without license.
Requires certificate of need for residential treatment facility
to be based on community need within 10-mile radius.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to residential facilities; amending ORS 443.400,
443.405, 443.410, 443.420 and 443.455; and declaring an
emergency.
Whereas the Legislative Assembly finds that residential
facilities provide needed care and services to thousands of
Oregonians who have disabilities and who might otherwise be
institutionalized; and
Whereas the Legislative Assembly finds that the protection of
the health, safety and well-being of the residents of residential
facilities is an important function of licensing agencies; and
Whereas the Legislative Assembly finds that consistent
interpretation, application and enforcement of regulatory
standards is necessary and desirable for the protection of
residential facility residents; and
Whereas it is the Legislative Assembly's intent that licensing
agencies provide training and guidelines for employees assigned
to licensing and enforcement to encourage consistency; and
Whereas it is the intent of the Legislative Assembly that
licensing agencies take vigorous action to ensure that
inspections and investigations are carried out as required by
law; now, therefore,
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 443.400 is amended to read:
443.400. As used in ORS 443.400 to 443.455 and 443.991, unless
the context requires otherwise:
(1) 'Director' means the director of the licensing agency for
the residential facility.
(2) 'Licensing agency' means:
(a) The Department of Human Services, if the residential
facility that is licensed, or that the Director of Human Services
determines should be licensed, is a residential care facility,
residential training facility or residential training home; or
(b) The Oregon Health Authority, if the residential facility
that is licensed, or that the Director of the Oregon Health
Authority determines should be licensed, is a residential
treatment facility or residential treatment home.
(3) 'Resident' means any individual residing in a facility who
receives residential care, treatment or training. For purposes of
ORS 443.400 to 443.455, an individual is not considered to be a
resident if the individual is related by blood or marriage within
the fourth degree as determined by civil law to the person
licensed to operate or maintain the facility.
(4) 'Residential care' means services such as supervision;
protection; assistance while bathing, dressing, grooming or
eating; management of money; transportation; recreation; and the
providing of room and board.
(5) 'Residential care facility' means a facility that provides,
for six or more socially dependent individuals or individuals
with physical disabilities, residential care in one or more
buildings on contiguous properties.
(6) 'Residential facility' means a residential care facility,
residential training facility, residential treatment facility,
residential training home or residential treatment home.
(7) 'Residential training facility' means a facility that
provides, for six or more individuals with mental retardation or
other developmental disabilities, residential care and training
in one or more buildings on contiguous properties.
(8) 'Residential training home' means a facility that provides,
for five or fewer individuals with mental retardation or other
developmental disabilities, residential care and training in one
or more buildings on contiguous properties, when so certified and
funded by the Department of Human Services.
(9) 'Residential treatment facility' means a facility that
provides, for six or more individuals with mental, emotional or
behavioral disturbances or alcohol or drug dependence,
residential care and treatment in one or more buildings on
contiguous properties.
(10) 'Residential treatment home' means a facility that
provides for five or fewer individuals with mental, emotional or
behavioral disturbances or alcohol or drug dependence,
residential care and treatment in one or more buildings on
contiguous properties.
(11) 'Training' means the systematic, planned maintenance,
development or enhancement of self-care skills, social skills or
independent living skills, or the planned sequence of systematic
interactions, activities or structured learning situations
designed to meet each resident's specified needs in the areas of
physical, social, emotional and intellectual growth.
(12) 'Treatment' means { - a planned, - } { + an + }
individualized program of { + medication management, or a
planned individualized program of + } medical, psychological or
rehabilitative procedures, experiences and activities { + , + }
designed to relieve or minimize mental, emotional, physical or
other symptoms or social, educational or vocational disabilities
resulting from or related to the mental or emotional disturbance,
physical disability or alcohol or drug problem.
SECTION 2. ORS 443.405 is amended to read:
443.405. For purposes of ORS 443.400 to 443.455 and 443.991, '
residential facility' does not include:
(1) A residential school;
(2) A state or local correctional facility, other than a local
facility for persons enrolled in work release programs maintained
under ORS 144.460;
(3) A youth correction facility as defined in ORS 420.005;
(4) A youth care center operated by a county juvenile
department under administrative control of a juvenile court
pursuant to ORS 420.855 to 420.885;
(5) A juvenile detention facility as defined in ORS 419A.004;
(6) A nursing home;
(7) A hospital;
(8) A place primarily engaged in recreational activities;
(9) A foster home; or
(10) A place { - providing - } { + where there is access to
on-site + } care { - and - } { + or + } treatment on
{ + substantially + } less than a 24-hour basis.
SECTION 3. ORS 443.410 is amended to read:
443.410. (1) A license issued by the Department of Human
Services is required in order to operate or maintain a
residential care facility, residential training facility or
residential training home.
(2) A license issued by the Oregon Health Authority is required
in order to operate or maintain a residential treatment facility
or residential treatment home.
(3) A facility may not be subject to licensing by both the
department and the authority under this section. If a facility
could be licensed under either subsection (1) or (2) of this
section, the Director of Human Services and the Director of the
Oregon Health Authority shall determine the category of licensure
that applies to the facility.
{ + (4) The authority, in conjunction with the department,
shall determine which agency has jurisdiction regarding a
residential facility suspected of operating without a
license. + }
SECTION 4. ORS 443.420 is amended to read:
443.420. (1) A person applying for a license under ORS 443.415
must, in the judgment of the director of the licensing agency, be
a person:
(a) Who demonstrates an understanding and acceptance of the
rules governing residential facilities;
(b) Mentally and physically capable of caring for such
residents; and
(c) Who employs or utilizes only individuals whose presence
does not jeopardize the health, safety or welfare of residents.
(2) A residential facility shall not be operated or maintained
in combination with a nursing home or hospital unless licensed,
maintained and operated as a separate and distinct part.
(3) All physical residential facilities used for residents
shall meet applicable requirements of the State Fire Marshal.
(4) Prior to licensure, a residential facility must be in
substantial compliance with applicable state and local laws,
rules, codes, ordinances and permit requirements.
(5) Prior to licensure, a residential facility that proposes to
house persons under the age of 21 years shall submit written
proof to the licensing agency demonstrating that the facility
will:
(a) Comply with ORS 336.575; and
(b) Ensure that the children who reside at the residential
facility receive appropriate educational services that are:
(A) Comprehensive and age-appropriate;
(B) In compliance with requirements of state and federal law;
and
(C) If applicable, in compliance with the individual education
program of the child.
(6) Prior to an initial licensure of a residential care
facility, the licensing agency shall consider:
(a) The license applicant's history of regulatory compliance
and operational experience;
(b) The need in the local community for the services offered by
the license applicant, as demonstrated by a market study produced
by the license applicant;
(c) The willingness of the license applicant to serve
underserved populations; and
(d) The willingness of the license applicant to contract with
the licensing agency to provide services through the state
medical assistance program.
{ + (7) Prior to an initial licensure of a residential
treatment facility, the licensing agency shall consider:
(a) The license applicant's history of regulatory compliance
and operational experience;
(b) The need within a 10-mile radius of the proposed location
for the services offered by the license applicant, as
demonstrated by a market study produced by the license applicant;
(c) The willingness of the license applicant to serve
underserved populations; and
(d) The willingness of the license applicant to contract with
the licensing agency to provide services through the state
medical assistance program. + }
SECTION 5. ORS 443.455 is amended to read:
443.455. (1) For purposes of imposing civil penalties,
residential facilities approved under ORS 443.400 to 443.455 are
subject to ORS 441.705 to 441.745.
(2) The Director of Human Services shall by rule prescribe a
schedule of penalties for residential care facilities,
residential training facilities and residential training homes
that are not in compliance with ORS 443.400 to 443.455 { + ,
including operating without a license + }.
(3) The Director of the Oregon Health Authority shall by rule
prescribe a schedule of penalties for residential treatment
facilities and residential treatment homes that are not in
compliance with ORS 443.400 to 443.455 { + , including operating
without a license + }.
(4) If the department or authority investigates and makes a
finding of abuse arising from deliberate or other than accidental
action or inaction that is likely to cause a negative outcome by
a person with a duty of care toward a resident of a residential
facility and if the abuse resulted in the death, serious injury,
rape or sexual abuse of a resident, the department or authority
shall impose a civil penalty of not less than $2,500 for each
occurrence of substantiated abuse, not to exceed $15,000 in any
90-day period. As used in this subsection:
(a) 'Negative outcome' includes serious injury, rape, sexual
abuse or death.
(b) 'Rape' means rape in the first, second or third degree as
described in ORS 163.355, 163.365 and 163.375.
(c) 'Serious injury' means physical injury that creates a
substantial risk of death or that causes serious and protracted
disfigurement, protracted impairment of health or protracted loss
or impairment of the function of any bodily organ.
(d) 'Sexual abuse' means any form of nonconsensual sexual
contact, including but not limited to unwanted or inappropriate
touching, sodomy, sexual coercion, sexually explicit
photographing and sexual harassment.
SECTION 6. { + This 2012 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2012 Act takes effect on its
passage. + }
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