75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
House Bill 2139
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor Theodore R.
Kulongoski for Department of Human Services)
CHAPTER ................
AN ACT
Relating to temporary appointment of person to ensure care
facility compliance; creating new provisions; amending ORS
441.277, 441.281, 441.286, 441.289, 441.293, 441.296, 441.301,
441.303, 441.312, 441.316, 441.318, 441.323, 441.624 and
441.990; and appropriating money.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 441.281 is amended to read:
441.281. (1) The Director of Human Services may petition the
circuit court for { + Marion County or for + } the county in
which a facility is located for an order appointing a trustee to
administer the facility for a period not to exceed 18 months.
(2) The court shall hold a hearing on a petition filed under
{ - subsection (1) of - } this section within 10 days of the
filing of the petition. The petition shall be placed at the head
of the docket.
(3) The petition and notice of the hearing shall be served on
the { - person or body legally responsible - }
{ + licensee + } for the facility. Service at the facility to
the individual in charge shall be considered service on the
{ - owner - } { + licensee + }.
(4) If the court determines at the hearing that grounds exist
{ + under ORS 441.286 + } for the appointment of a trustee
under { - ORS 441.286 - } { + this section + }, the court
shall enter the order.
{ + (5) If there exists a serious and immediate risk of harm
or death to patients of a facility, the director may file with
the petition described in subsection (1) of this section an ex
parte motion for the preliminary appointment of a trustee. The
motion shall be supported by affidavits demonstrating the
qualifications of the proposed trustee and the need for an
immediate appointment of a trustee to protect the patients prior
to a hearing. If the court grants the motion for the preliminary
appointment of a trustee, the court shall set a hearing on the
merits of the petition within five judicial days. Pending the
court's order on the petition described in subsection (1) of this
section, a preliminary trustee appointed pursuant to this
subsection shall have all of the powers and duties described in
ORS 441.289. + }
SECTION 2. ORS 441.286 is amended to read:
Enrolled House Bill 2139 (HB 2139-A) Page 1
441.286. { - The grounds for the appointment of a trustee
shall be - } { + There are grounds for the appointment of a
trustee under ORS 441.281 if a court finds + } that the health
and welfare of patients in a facility are { - now - } or in
the immediate future will be in jeopardy { + and the finding
is + } based on { + one or more of the following + }:
{ - (1) Sufficient prior surveys or investigations of
complaints resulting in the determination that the complaints are
supported by findings, and evidence that the Department of Human
Services has attempted by findings of survey deficiencies and
imposition of civil penalties to bring the long term care
facility into compliance with statute and rules. - }
{ + (1) Prior inspections or investigations of complaints by
the Department of Human Services revealed that the facility was
not in compliance with rules of the department and the
department's attempts to bring the facility into compliance are
unsuccessful. + }
(2) { - No improvement in patient care, health and
welfare - } { + The health and welfare of patients at the
facility are in jeopardy due to continued noncompliance of the
facility + } over a seven-day period after { - the survey - }
{ + an inspection + } or investigation { - as defined by - }
{ + of a complaint, demonstrated by one or more of the
following + }:
(a) Physicians' orders { + are + } not being followed
correctly.
(b) { - The lack of, or inadequate - } Direct patient care
{ + is lacking or inadequate + } to the point that { - the - }
{ + a + } patient has { + suffered + } or is suffering
physical harm.
(c) { - Deficient staffing - } { + The levels of staffing
are deficient + } to the point of causing physical or mental harm
to { - the - } { + a + } patient.
(d) { + The department has determined that a + } physical
injury to a patient of a { - long term care facility which has
been determined by the department to be - } { + facility has
been + } caused by other than accidental means and { - for
which the administrator - } { + the licensee + } has not taken
necessary action.
(3) The { - person or body legally responsible - }
{ + licensee + } is unwilling or unable { - , or both, - } to
upgrade the quality of patient care to the level necessary to
protect the health and welfare of the patients.
(4) The facility is insolvent.
(5) The department has revoked or suspended the license of the
facility.
(6) The { - operator intends - } { + licensee intends to
cease operations and + } to close the facility and has not made
adequate arrangements for relocation of the { - residents - }
{ + patients + }.
(7) The { - facility refuses to allow the - } monitors { +
are refused + } access to the facility.
{ + (8) The licensee agreed to the appointment of a temporary
manager under section 15 of this 2009 Act, but subsequently
revoked consent for a temporary manager or is interfering with
the ability of the temporary manager to operate the facility. + }
SECTION 3. ORS 441.289 is amended to read:
441.289. A trustee appointed under ORS { - 441.286 - } { +
441.281 + }:
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(1) May exercise any powers and shall perform any duties
required by the court.
(2) Shall operate the facility in such a manner as to protect
the health and welfare of the patients.
(3) Shall have the same rights to possession of the building in
which the facility is located and of all goods and fixtures in
the building at the time the petition for the appointment of the
trustee is filed as the { - person or body legally
responsible - } { + licensee + } would have had if the trustee
had not been appointed.
(4) Shall take such action as is reasonably necessary to
protect and conserve the assets and property the trustee takes in
possession, or the proceeds of any transfer thereof, and may use
them only in the performance of the powers and duties set forth
in this section and by order of the court.
(5) May receive and spend the facility's income and encumber
its assets to the extent specifically authorized by the court and
do all acts necessary or appropriate to promote the health and
safety of the { - residents - } { + patients + }.
(6) Shall have the power to maintain an action to reach the
assets of the parent corporation if it appears to the court that
the parent corporation is the actual controlling owner of the
facility and that the named owner is not in control of the
facility.
(7) May use the building, fixtures, furnishings and any
accompanying consumable goods in the provision of care and
services to patients at the time the petition for the appointment
of the trustee was filed.
(8) Shall collect payments for all goods and services provided
to patients during the period of the trust, at the same rate of
payment charged by the facility at the time the petition for the
appointment of the trustee was filed, unless a different rate is
set by the court.
(9) May correct or eliminate any deficiency in the structure or
furnishings of the facility which endangers the health or welfare
of the patients while they remain in the facility. However, the
total cost of correction { - shall - } { + may + } not exceed
$3,000 unless the court orders expenditures for this purpose in
excess of $3,000 upon application by the trustee.
(10) May make contracts and hire agents and employees to assist
the trustee in carrying out the powers and duties described in
this section, subject to approval by the court.
(11) Except as provided in ORS 441.296, shall honor all leases,
mortgages and secured transactions governing the building in
which this facility is located and all goods and fixtures in the
building of which the trustee has taken possession, but only to
the extent of payments which, in the case of a rental agreement,
are for the use of the property during the period of the trust,
or which, in the case of a purchase agreement, come due during
the period of the trust.
(12) May direct, manage and discharge employees of the
facility, subject to any contract rights they may have.
(13) Shall pay employees at the same rate of compensation,
including benefits, that the employees would have received from
the owner, operator or other controlling person, except the
trustee shall compensate employees only for time actually worked
during the period of the trust and shall not be responsible for
reimbursement for vacations or periods of sick leave. However, in
no case shall a trustee compensate any employee of a facility in
an amount which is less than the minimum amount required by law.
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(14) Shall be entitled to take possession of all property or
assets belonging to patients { - which - } { + that + } are
in the possession of the long term care facility.
(15) Shall preserve and protect all property, assets and
records of patients of which the trustee takes possession.
{ + (16) May prohibit any person, including a licensee, from
entering or remaining on the premises if in the opinion of the
trustee the person is interfering or has materially interfered
with the ability of the trustee to exercise the powers and duties
under this section. + }
{ - (16) - } { + (17) + } { - Shall, - } If the facility
ceases to operate { + and closes + } during the period of the
trust and any patient is transferred as a result
{ - thereof - } , { + shall + } ensure that:
(a) Transportation of the patient, the patient's belongings and
the medical record to the new location is provided.
(b) Aid for locating alternative placements is available to the
patient or the patient's legal representative.
(c) Each patient is physically and mentally prepared for
transfer to avoid possible trauma due to the transfer.
(d) Each patient or the patient's legal representative is
permitted to participate in the selection of the new placement.
{ - (17) - } { + (18) + } Is an agent of the state for
purposes of ORS 30.260 to 30.300 for which the Department of
Human Services shall be assessed and the department may use the
{ - account - } { + Facility Fund + } established under ORS
441.303 to pay the assessment.
SECTION 4. ORS 441.293 is amended to read:
441.293. (1) A person who is served with notice of an order of
the court appointing a trustee, with the trustee's name and
address, shall be liable to pay the trustee for any goods or
services provided by the trustee after the date of the order if
the person would have been liable for the goods or services as
supplied by the { - person or body legally responsible for the
facility - } { + licensee + }. The trustee shall give a receipt
for each payment and shall keep a copy of each receipt on file.
The trustee shall deposit amounts received in a special account
and may use this or any other similar account for disbursements.
(2) The trustee may bring an action to enforce the liability
created by subsection (1) of this section. Proof of payment to
the trustee is as effective in favor of the person making the
payment as payment of the amount to the person who would have
been entitled to receive the sum so paid.
(3) A patient shall not be discharged, nor shall any contract
or rights be forfeited or impaired, nor shall forfeiture or
liability be increased, by reason of an omission to pay a
{ - person or body legally responsible for the facility - }
{ + licensee + } a sum paid to the trustee.
SECTION 5. ORS 441.296 is amended to read:
441.296. (1) A trustee is not required to honor any lease,
mortgage, secured transaction or other wholly or partially
executory contract entered into by the { - person or body
legally responsible for the facility - } { + licensee + } if in
the judgment of the court the terms thereof are unconscionable.
(2) If the trustee is in possession of real estate or goods
subject to a lease, mortgage or security interest which the
trustee is permitted to avoid under subsection (1) of this
section, and if the real estate or goods are necessary for the
continued operation of the facility, the trustee may apply to the
court to set a reasonable rental. The court shall hold a hearing
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on the application within 15 days. The trustee shall send notice
of the application to any known owners of the property involved
at least 10 days prior to the hearing. Payment by the trustee of
the amount determined by the court to be reasonable is a defense
to any action against the trustee for payment or for possession
of the goods or real estate subject to the lease or mortgage
involved by any person who received such notice. However, the
payment does not relieve the { - person or body legally
responsible for the facility - } { + licensee + } of any
liability for the difference between the amount paid by the
trustee and the amount due under the original lease or mortgage
involved.
SECTION 6. ORS 441.301 is amended to read:
441.301. If funds collected under ORS 441.289 and 441.293 are
insufficient to meet the expenses of performing the powers and
duties conferred on the trustee by ORS 441.277 to 441.323 { + or
on the temporary manager pursuant to section 15 of this 2009
Act + }, or if there are insufficient funds on hand to meet those
expenses, the Department of Human Services may draw from the
{ - supplemental funds created under - } { + Facility Fund
established in + } ORS 441.303 to pay those expenses.
{ - Operating funds collected under this section and - }
{ + Moneys drawn under this section that are + } not applied to
the expenses of the trust shall be used to reimburse the fund for
advances made under this section.
SECTION 7. ORS 441.303 is amended to read:
441.303. (1) { - To establish and maintain a fund to meet
expenses of a trustee if moneys collected under ORS 441.289 and
441.293 are insufficient, the Department of Human Services shall
require a payment equal to the equivalent of the annual license
fee for the facility. - } { + The Facility Fund is established
in the State Treasury, separate and distinct from the General
Fund, consisting of payments made by facilities to the Department
of Human Services as specified in this section. Interest earned
by the Facility Fund shall be credited to the fund. Moneys in the
fund are continuously appropriated to the department for the
purpose of paying:
(a) The reasonable expenses of a trustee appointed under ORS
441.281 if funds collected by a trustee under ORS 441.289 and
441.293 are insufficient to meet those expenses; or
(b) The reasonable expenses of a temporary manager appointed
under section 15 of this 2009 Act if funds collected by a
temporary manager are insufficient to meet those expenses.
(2) Each licensee shall pay annually to the department an
amount not to exceed the annual license fee for the facility
under ORS 441.020 or 443.415. + } The { + facility + } payment
shall be due annually on a date fixed by the department and
enforced in the same manner as the license fee for the particular
facility is payable and enforceable. The amount of payments shall
be set so as to acquire in the { - account the $300,000 - }
{ + fund the $750,000 + } described in subsection (3) of this
section { - at the end of six years from the initial payment
year - } .
{ - (2) Funds collected under this section and,
notwithstanding ORS 293.140, all interest earned on cash balances
thereof invested by the State Treasurer shall be maintained as a
fund in the State Treasury, separate and distinct from the
General Fund, and are continuously appropriated to the department
to pay the expenses of the trust. - }
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(3) Whenever { + the balance of moneys in + } the fund
established under this section reaches { - $300,000 - } { +
$750,000 + }, the department shall discontinue collecting the
{ + facility + } payment described in subsection { - (1) - }
{ + (2) + } of this section. However, whenever the fund { +
balance + } falls below { - $300,000 - } { + $600,000 + },
the department shall reinstitute the { + facility + } payment
described in subsection { - (1) - } { + (2) + } of this
section until the fund is restored to { + at least $750,000. + }
{ - $300,000. If the amount collected would raise more than
required, the department shall prorate the payment of each
facility so as to raise no more than required. - } { + + }
{ + The department's notice of intent to reinstitute the
facility payment shall include a summary of the amounts expended
by the department from the fund and the balance of the fund on
the date of the notice. + } The department may use reasonable
amounts from the fund necessary to administer the fund.
(4) Whenever the department is required to use any amount in
the fund { - to operate a facility under ORS 441.289 and
441.293 - } { + to meet the expenses of a trustee appointed
under ORS 441.281 or a temporary manager appointed under section
15 of this 2009 Act + }, the amount used shall constitute a loan
to the facility and shall be repayable to the fund under such
terms and conditions as the facility and the department agree.
The rate of interest shall be set by the department to reflect
the prevailing market rate on similar loans. { - The - }
Interest { + earned under this subsection + } shall be credited
to the { - separate fund described in subsection (2) of - }
{ + fund established under + } this section.
(5) The { - assessment imposed under - } { + facility
payment described in subsection (2) of + } this section shall be
considered an allowable cost in setting the reimbursement rates
of a facility by the department.
(6) The court may order that the trustee file an undertaking
with the clerk of the court. The fund { - collected - } { +
established + } under this section may serve as surety for the
undertaking.
SECTION 8. ORS 441.312 is amended to read:
441.312. Notwithstanding other provisions of law concerning
licensing of long term care facilities, a license renewal may be
issued to a facility placed in trust under ORS { - 441.286 - }
{ + 441.281 + }. The duration of a license issued under this
section is limited to the duration of the trust.
SECTION 9. ORS 441.316 is amended to read:
441.316. (1) The court may terminate a trust if the time period
specified in the order appointing the trustee lapses or if the
patients in the facility have been provided with care in another
facility or upon petition of the { - person or body legally
responsible for the facility if the person or body legally
responsible intends to discontinue the operation of or close the
facility during the period of the trust. The court may use its
discretion in terminating a trust upon petition of the person or
body legally responsible for the facility - } { + licensee if
the licensee intends to discontinue the operation of or close the
facility during the period of trust. The court may use its
discretion in terminating a trust upon petition of the
licensee + } to determine whether discontinuance or closure will
promote the health and safety of the patients.
(2) At the expiration of the period for which the trustee was
appointed, the court shall make a determination as to the future
Enrolled House Bill 2139 (HB 2139-A) Page 6
of the facility based upon evidence presented to the court. At
that time the court may decide to:
(a) Order the Department of Human Services to issue a new
license to the { - owners, body or - } person { - legally
responsible for the facility - } { + that was the licensee when
the department filed the petition under ORS 441.281 + } and
permit the facility to continue in operation;
(b) Extend the period of appointment of the trustee by not more
than 90 days; or
(c) Order the department without further administrative hearing
to revoke the license of the facility.
(3) Nothing in ORS 441.277 to 441.323 is intended to limit or
prohibit any { - person or body legally responsible for the
facility from ceasing the operation of and closing a facility
during the period of the trust. However, the person or body
legally responsible intending to do so shall give written notice
of the intended action of the trustee pursuant to rules of the
department. The trustee may continue to operate the facility for
a period of not more than 60 days after notice is received. The
person or body legally responsible shall be liable for any
expenses incurred in the operation - } { + licensee from
ceasing the operation of and closing a facility during the period
of the trust. However, the licensee intending to do so shall give
written notice of the intended action to the trustee pursuant to
rules of the department. The trustee may continue to operate the
facility for a period of not more than 60 days after notice is
received. The licensee shall be liable for any expenses incurred
in the operation + } of the facility during this period.
SECTION 10. ORS 441.318 is amended to read:
441.318. (1) Within 60 days following the creation of the trust
by the court, and every 60 days thereafter, and within 30 days
after the termination of the trust, the trustee shall give the
court and the Department of Human Services a complete accounting
of all property of which the trustee has taken possession, all
funds collected under ORS 441.289 and 441.293 and all expenses
incurred by the trust. The trustee shall prepare { - a
report - } and file { - it - } { + a report + } with the
court and the department making recommendations concerning the
current condition of the facility and projections for future
operation of the facility and the conditions of the health and
welfare of the patients.
(2) { + (a) + } If the { - operating - } funds collected by
the trustee under ORS 441.289 and 441.293 exceed the reasonable
expenses of the trust, the court shall order payment of the
surplus to the
{ - person or body legally responsible - } { + licensee + }
after reimbursement to the department of { - funds - } { +
amounts + } contributed { + from the Facility Fund
established + } under ORS 441.303.
{ + (b) + } If the { - operating - } funds are
insufficient to cover the reasonable expenses of the trust,
{ + the department may move the court for an order requiring + }
the { - person or body legally responsible for the facility
shall be liable for - } { + licensee to pay + } the
deficiency { + to the department + }. { - The person or body
legally responsible for the facility may apply to the court to
determine the reasonableness of any expense incurred by the
trust. - } { + The motion shall contain the following statement
in bold: + }
________________________________________________________________
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{ +
Notice to ______ + }
{ + The Department of Human Services has filed this motion to
recover from you costs incurred as a result of the operation of a
facility under ORS 441.277 to 441.323. The court may enter a
money judgment against you if you fail to respond to this motion
within 20 days of service of this motion upon you. + }
________________________________________________________________
{ + (c) The department shall serve the motion personally or
by first class mail at the last-known address of the licensee. If
the licensee fails to file a response to the motion within 20
days of service, the court shall enter an order and judgment
accordingly. If the licensee files a timely response, the court
shall set a date for a hearing at which the court shall determine
whether the expenses incurred by the trust are reasonable.
(d) + } The { - person or body responsible for the facility
shall not be responsible - } { + licensee is not liable + } for
expenses in excess of what the court finds to be reasonable.
{ + The court shall enter a money judgment against the licensee
in an amount that does not exceed the reasonable expenses. + }
Payment recovered from the { - person or body legally
responsible for the facility - } { + licensee + } shall be
credited to reimburse the { - account for funds contributed by
the department - } { + Facility Fund established + } under ORS
441.303.
(3) The department shall have a lien for any deficiency { +
established + } under subsection (2) of this { - section upon
any beneficial interest, direct or indirect, of any person or
body legally responsible for the facility operation, of any
person or body legally responsible for the building in which the
facility is located or the land on which the facility is located
and any fixtures, equipment or goods used in the operation of the
facility and the proceeds from any conveyance of such property
made by the person or body legally responsible within one year
prior to the filing - } { + section upon any real property and
other beneficial interest, direct or indirect, of any licensee,
any fixtures, equipment or goods used in the operation of the
facility and the proceeds from a conveyance of any such property
or interest made by the licensee within the 12 months prior to
the filing + } of the petition for appointment of a trustee.
(4) The lien provided in subsection (3) of this section is
prior to any lien or other interest { - which - }
{ + that + } originates subsequent to the filing of a petition
for appointment of a trustee under ORS { - 441.286 - } { +
441.281 + }, except for a construction lien arising out of work
performed with the express consent of the trustee.
{ + (5) The lien established under subsection (3) of this
section may be recorded in the County Clerk Lien Record described
in ORS 205.130. + }
SECTION 11. ORS 441.323 is amended to read:
441.323. (1) Nothing in ORS 441.277 to 441.323 is intended:
(a) To relieve any { - person or body legally responsible
for - } { + licensee of + } the facility placed in trust { +
under ORS 441.281 or under temporary management pursuant to
section 15 of this 2009 Act + } of any civil or criminal
liability incurred, or any duty imposed by law by reason of acts
or omissions of the { - person or body legally responsible - }
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{ + licensee + } prior to the appointment of a trustee under ORS
{ - 441.286 - } { + 441.281 + }.
(b) To suspend any obligation of the { - person or body
legally responsible - } { + licensee + } for payment of taxes
or other operating and maintenance expenses of the facility or
payment of mortgages or other liens during the term of the
trust { + or the temporary management + }.
(2) { - No person or body legally responsible shall - } { +
A licensee may not + } be held professionally liable for acts or
omissions of the trustee or the trustee's employees during the
term of the trust { + or of the temporary manager or the
temporary manager's employees during the period of temporary
management + }.
SECTION 12. ORS 441.624 is amended to read:
441.624. (1) ORS 124.050, 124.080, 410.190, 441.020 to 441.057,
441.060, 441.061, 441.067, 441.073, 441.085, 441.087, 441.277 to
441.289, 441.303, 441.316, 441.318, 441.367, 441.600, 441.610,
441.630, 441.650 to 441.665, 441.685, 441.690, 441.703 and
441.705 to 441.720 { + and sections 14 to 18 of this 2009
Act + } address the consolidation of the regulatory functions of
licensing, certification, inspection of care, utilization review,
abuse reporting and abuse investigation.
(2) It is legislative intent that:
(a) The Department of Human Services focus administrative
effort on the integration and consistent application and
interpretation of the regulatory functions at the nursing
facility level;
(b) Surveys and other reports, especially with respect to
client assessment, be consistently and reliably performed
throughout the state;
(c) Positive and negative findings and sanctions be
proportional to the strengths and problems identified, within the
limits of federal statute and regulations; and
(d) The interpretation of regulatory criteria be independent of
influence from budgetary limitations.
SECTION 13. ORS 441.990, as amended by section 9, chapter 602,
Oregon Laws 2007, is amended to read:
441.990. (1) Violation of ORS 441.015 (1) is a violation
punishable, upon conviction, by a fine of not more than $100 for
the first violation and not more than $500 for each subsequent
violation. Each day of continuing violation after a first
conviction shall be considered a subsequent violation.
(2) Any person who willfully prevents, interferes with, or
attempts to impede in any way the work of any duly authorized
representative of the Department of Human Services in the lawful
carrying out of the provisions of ORS 441.087 (1) is guilty of a
Class C misdemeanor.
(3) The removal of the notice required by ORS 441.030 (5) by
any person other than an official of the department is a Class C
misdemeanor.
{ + (4) Any person who, after being excluded by a trustee
pursuant to ORS 441.289 (16), remains upon the premises of a
facility or returns to a facility violates ORS 164.245. + }
SECTION 14. { + As used in sections 14 to 18 of this 2009 Act,
' facility' has the meaning given that term in ORS 441.277. + }
SECTION 15. { + (1) The Department of Human Services, with the
consent of the licensee, may appoint for a period not to exceed
six months a temporary manager to assume control of the
day-to-day operation of the facility if the department determines
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that the health or safety of patients in a facility are, or in
the immediate future will be, in jeopardy based upon:
(a) The facility's unwillingness or inability to comply with
department rules in the operation of the facility;
(b) The imminent insolvency of the facility;
(c) The department's revocation or suspension of the license of
the facility; or
(d) The department's determination that the licensee intends to
cease operations and to close the facility without adequate
arrangements for the relocation of the patients.
(2) A temporary manager has all of the duties and powers, as
prescribed by the department by rule or as agreed upon between
the department and the licensee, that are necessary to ensure the
safety and well-being of the patients and the continued operation
of the facility.
(3) The department shall compensate a temporary manager as
agreed upon by the department and the licensee. Compensation of a
temporary manager and compensation of any employees or agents of
the temporary manager reasonably necessary to assist the
temporary manager in the operation of the facility shall be
considered a reasonable expense for the purpose of withdrawing
funds from the Facility Fund established in ORS 441.303. + }
SECTION 16. { + (1) Within 30 days following the appointment
of a temporary manager under section 15 of this 2009 Act, and
every 30 days thereafter and within 30 days after the termination
of the period of temporary management, the temporary manager
shall give the Department of Human Services and the licensee a
complete accounting of all property that the temporary manager
has taken possession, all funds collected and all expenses
incurred by the temporary manager on behalf of the facility and
the expenditure of any funds withdrawn from the Facility Fund
established under ORS 441.303 to pay those expenses.
(2) If a facility's income or assets are insufficient to meet
the expenses of a temporary manager in the operation of the
facility, the department may withdraw funds from the Facility
Fund established under ORS 441.303 to pay those expenses.
(3) If the department withdraws funds from the Facility Fund
established under ORS 441.303 to pay the expenses of the
temporary manager and compensation of any employees or agents of
the temporary manager pursuant to section 15 of this 2009 Act,
the licensee shall be liable to the department for the
deficiency.
(4) The department shall provide an opportunity to contest the
deficiency in accordance with ORS chapter 183. The department
shall serve a notice of deficiency upon the licensee in
accordance with ORS 183.415 (2). The notice shall conform to ORS
183.415 and shall explain:
(a) The amount of the deficiency; and
(b) That the department may have a lien for the amount of the
deficiency upon any real property and other beneficial interest,
direct or indirect, of the licensee, upon any fixtures, equipment
or goods used in the operation of the facility and upon the
proceeds of any conveyance of such property or interest by the
licensee within the 12 months prior to the appointment of the
temporary manager.
(5) The department shall have a lien for any deficiency
established under subsection (4) of this section upon any real
property and other beneficial interest, direct or indirect, of
the licensee, upon any fixtures, equipment or goods used in the
operation of the facility and upon the proceeds of any conveyance
Enrolled House Bill 2139 (HB 2139-A) Page 10
of such property or interest by the licensee in the 12 months
prior to the appointment of the temporary manager.
(6) The department shall conduct any hearing under this section
as a contested case hearing in accordance with ORS chapter 183
and the rules of the department. The department may serve the
final order without serving a proposed order. The only issues to
be decided in the hearing are:
(a) The amount of the deficiency; and
(b) Whether the expenses incurred by the temporary manager are
reasonable.
(7) The lien authorized by subsection (5) of this section is
prior to any lien or other interest that arises subsequent to the
appointment of a temporary manager, except for a construction
lien arising out of work begun before the appointment and
continued with the express consent of the temporary manager.
(8) The lien provided in subsection (5) of this section may be
recorded in the County Clerk Lien Record maintained under ORS
205.130.
(9) Income received by the temporary manager on behalf of the
facility and not applied to the operating expenses of the
facility and any deficiency recovered by the department under
this section shall be used to reimburse the Facility Fund
established under ORS 441.303 for any withdrawal of funds
authorized by this section. + }
SECTION 17. { + In any action or proceeding brought against a
temporary manager in the temporary manager's official capacity
for acts committed while carrying out the powers and duties
authorized by the Department of Human Services by rule or as
agreed upon between the department and the licensee, the
temporary manager shall be considered an agent of the department
under ORS 30.260 to 30.300. + }
SECTION 18. { + The Department of Human Services shall adopt
rules necessary to implement sections 14 to 18 of this 2009 Act,
including but not limited to the criteria for the appointment of
a temporary manager of a facility, the qualifications of a
temporary manager and the powers and duties of a temporary
manager. + }
SECTION 19. { + On the effective date of this 2009 Act, all
moneys in the fund established under ORS 441.303 are transferred
to the Facility Fund established by the amendments to ORS 441.303
by section 7 of this 2009 Act. + }
SECTION 20. ORS 441.277 is amended to read:
441.277. As used in ORS 441.277 to 441.323:
{ - (1) 'Department' means the Department of Human
Services. - }
{ - (2) 'Director' means the Director of Human Services. - }
{ - (3) - } { + (1) + } 'Facility' means a long term care
facility as defined in ORS 442.015 or a residential care facility
as defined in ORS 443.400. { + 'Facility' does not include + }
facilities licensed under ORS 418.205 to 418.325 by the
Department { + of Human Services. + }
{ - are exempt from ORS 441.277 to 441.323. - }
{ + (2) 'Licensee' means any person licensed by the
department to operate a facility other than a trustee appointed
under ORS 441.281 or a temporary manager appointed under section
15 of this 2009 Act. + }
{ - (4) - } { + (3) + } 'Monitor' means an agent of the
Director { + of Human Services + } designated by the director to
observe the operation of a facility.
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Enrolled House Bill 2139 (HB 2139-A) Page 11
Passed by House April 28, 2009
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 3, 2009
...........................................................
President of Senate
Enrolled House Bill 2139 (HB 2139-A) Page 12
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled House Bill 2139 (HB 2139-A) Page 13