Chapter 441 — Health
Care Facilities
ORS sections in this chapter were
amended or repealed by the Legislative Assembly during its 2012 regular
session. See the table of ORS sections amended or repealed during the 2012
regular session: 2012 A&R Tables
New sections of law were added by
legislative action to this ORS chapter or to a series within this ORS chapter
by the Legislative Assembly during its 2012 regular session. See sections in
the following 2012 Oregon Laws chapters: 2012
Session Laws 0070
2011 EDITION
HEALTH CARE FACILITIES
PUBLIC HEALTH AND SAFETY
LICENSING AND SUPERVISION OF FACILITIES
AND ORGANIZATIONS
441.015 Licensing
of facilities and health maintenance organizations; compliance with rules and
standards
441.020 Application;
fees
441.021 Additional
fees for investigation and compliance activities
441.022 Factors
to be considered in licensing
441.025 License
issuance; rules; renewal; disclosure; transfer; posting
441.030 Denial,
suspension or revocation of licenses; restrictions on admission; penalties
441.037 Hearings;
procedures; judicial review
441.050 Additional
remedies
441.055 Rules;
health care facilities to ensure compliance; medical staff bylaws; peer review;
procedure
441.057 Rules
concerning complaints about care; reporting by employee
441.059 Access
to previous X-rays and reports by patients of chiropractic physicians
441.060 Inspections;
approval of plans and specifications; rules; fees
441.061 Delegation
of health inspections to local governmental agencies; financial assistance
441.062 Coordination
of inspections; rules
441.063 Use
of facilities by licensed podiatric physicians and surgeons; regulation of
admission and conduct
441.064 Use
of facilities by licensed nurse practitioners; rules regarding admissions and
privileges
441.065 Exemption
of certain religious institutions
441.067 Inspection
reports, complaint procedures and rules; posting
441.073 Rules
regarding staff ratio in long term care facilities; variances; posting
441.077 Revocation
of license and other penalties for imposing restrictions upon certain
physicians; construction of section
441.079 Eye,
organ and tissue transplants
441.082 Registration
of organ procurement organization, tissue bank and eye bank; rules; penalties
441.083 Drug
information to be provided patients of long term and intermediate care
facilities
441.084 Choice
of patient on suppliers of drugs and supplies
441.086 Ambulatory
surgical centers; rules
441.087 General
inspection of long term care facility
441.089 Application
of Health Care Quality Improvement Act of 1986
441.094 Denial
of emergency medical services because of inability to pay prohibited
441.096 Identification
badges
441.098 Physician
referral of patient to treatment facility
LONG TERM CARE OMBUDSMAN
441.100 Definitions
441.103 Office
of Long Term Care Ombudsman; terms; appointment; confirmation; qualifications
441.107 Funding
of office
441.109 Duties
of ombudsman; rules
441.113 Procedures
to maintain confidentiality
441.117 Right
of entry into facilities and access to records
441.121 Report
after investigation; referral to other agencies
441.124 Notice
of complaint procedures; posting
441.127 Immunity
of employees
441.131 Appointment
of designees; qualifications; duties
441.133 Effect
of ORS 441.100 to 441.153 on right to visitors
441.137 Long
Term Care Advisory Committee; appointment; confirmation; term; qualifications
441.142 Duties
441.146 Appeal
to Long Term Care Advisory Committee
441.147 Officers;
quorum; meetings; expenses
441.153 Long
Term Care Ombudsman Account
HOSPITAL NURSING SERVICES
441.160 Definition
for ORS 441.162 to 441.170
441.162 Written
staffing plan for nursing services
441.164 Variances
in staffing plan requirements
441.166 Need
for replacement staff
441.168 Leaving
a patient care assignment
441.170 Civil
penalties; suspension or revocation of license; rules; records; compliance
audits
441.172 Definitions
for ORS 441.172 to 441.182
441.174 Retaliation
prohibited
441.176 Remedies
for retaliation
441.178 Unlawful
employment practices; civil action for retaliation
441.180 Hospital
posting of notice
441.182 Rights,
privileges or remedies of nursing staff
441.192 Notice
of employment outside of hospital
TRUSTEE OR TEMPORARY MANAGER TO ENSURE
COMPLIANCE
WITH CARE RULES
441.277 Definitions
for ORS 441.277 to 441.323
441.281 Petition
for appointment of trustee; hearing; order
441.286 Grounds
for appointment of trustee
441.289 Powers
and duties of trustee
441.293 Liability
to trustee for goods and services after notice; effect of nonpayment
441.296 Liability
for rent or contracts
441.301 Payment
of expenses when income inadequate
441.303 Establishment
of Facility Fund; fees from facilities in addition to license fee; use of fees
441.306 Compensation
of trustee
441.309 Trustee
as public employee
441.312 License
renewal of facility placed in trust
441.316 Termination
of trust; extension; license revocation
441.318 Trustee
accounting; deficiencies; lien
441.323 Effect
of trust or temporary management on prior obligations or civil or criminal
liabilities
441.331 Definition
of “facility” for ORS 441.331 to 441.341
441.333 Appointment
of temporary manager
441.336 Accounting
by temporary manager; deficiencies; lien
441.338 Temporary
manager as agent of state agency
441.341 Rules
MOVES FROM LONG TERM CARE FACILITIES AND
RESIDENTIAL CARE FACILITIES
441.357 Definitions
for ORS 441.357 to 441.367
441.362 Notice
by Department of Human Services prior to move or termination; hearing; consent
to move; who may consent
441.367 Facility
required to give notice of base rate and policy on nonpayment; rules; notice of
changes; civil penalty
441.373 Admission
to or removal from long term care facility or residential care facility of
person convicted of sex crime
FINANCING OF HEALTH CARE FACILITIES
CONSTRUCTION
441.525 Definitions
for ORS 441.525 to 441.595
441.530 Policy
441.532 Municipalities
authorized to create authority; issuance of obligations; conditions; purpose of
authority
441.535 Procedure
to create public authority
441.540 Board
of directors; rules; conflict of interest; quorum; personnel
441.545 Authority
may not levy taxes
441.550 General
powers
441.555 Issuance
of revenue obligations; nature of obligation; refunding
441.560 Borrowing;
bond anticipation notes
441.565 Obligations
of authority not obligations of municipality
441.570 Payment
of principal and interest
441.575 Authorities
may act jointly
441.580 Authority
as public body; tax status of assets, income and bonds
441.585 Disposition
of excess earnings; disposition of assets on dissolution
441.590 Authority
granted by ORS 441.525 to 441.595
441.595 Construction
of ORS 441.525 to 441.595
LONG TERM CARE FACILITIES
(Nursing Home Patients’ Bill of Rights)
441.600 Definitions
for ORS 441.600 to 441.625
441.605 Legislative
declaration of rights intended for residents
441.610 Nursing
home patients’ bill of rights; rules
441.612 Additional
rights; rules
441.615 Powers
and responsibilities of department; rules
441.620 Disclosure
of business information required
(Enforcement of Nursing Home Laws)
441.624 Purpose
441.625 Retaliation
against resident exercising rights prohibited
(Resident Abuse)
441.630 Definitions
for ORS 441.630 to 441.680 and 441.995
441.635 Legislative
finding
441.637 Rules;
submission of rules to advisory group
441.640 Report
of suspected abuse of resident required
441.645 Oral
report to area agency on aging, department or law enforcement agency
441.650 Investigation
of abuse complaint; initial status report; content; distribution of report;
duties of investigator; investigation report
441.655 Immunity
provided reporter of abuse
441.660 Photographing
resident; photograph as record
441.665 Record
of reports; classification of investigation report
441.671 Confidentiality
of reports; when available
441.675 Certain
evidentiary privileges inapplicable
441.676 Investigation
of licensing violations; powers of investigator
441.677 Letter
of determination; determination rules; distribution of letter; notice to
nursing assistant; right to contested case hearing; rules
441.678 Review
of finding that nursing assistant responsible for abuse; name placed in
registry
441.679 Preemployment
inquiries; when employment prohibited
441.680 Spiritual
healing alone not considered abuse of resident
441.685 Monitors;
designation; duties; peer review of facilities
(Investigation of Complaints)
441.690 Complainant
may accompany investigator
441.695 Conduct
of investigation
(Drug Supplies for Unscheduled Leaves)
441.697 Prescribed
drug supply for unscheduled therapeutic leave from long term care facility;
dispensing of drugs by registered nurse
(Access)
441.700 Access
to facilities by persons providing services
(Complaint File)
441.703 Complaint
file; summary; availability on request
CIVIL PENALTIES
441.705 Definitions
for ORS 441.705 to 441.745
441.710 Civil
penalties; when imposed
441.712 Notice
of civil penalty
441.715 Objective
criteria for civil penalties; rules
441.720 Remittance
or reduction of penalties
441.740 Judicial
review
441.745 Penalties
to Quality Care Fund
SUICIDE ATTEMPTS BY MINORS
441.750 Suicide
attempts by minors; referral; report; disclosure of information; limitation of
liability
441.755 Report
form; contents
MISCELLANEOUS
441.815 Smoking
of tobacco in or near hospital prohibited; rules
441.820 Procedure
for termination of physician’s privilege to practice medicine at health care
facility; immunity from damage action for good faith report
441.825 Authority
of hospital to require medical staff to provide professional liability
insurance
PENALTIES
441.990 Civil
and criminal penalties
441.995 Factors
considered in determining penalties under ORS 441.630 to 441.680; civil penalty
441.005
[Amended by 1971 c.730 §1; 1973 c.840 §1; repealed by 1977 c.751 §57]
441.007 [1973
c.840 §2; repealed by 1977 c.751 §39]
441.010
[Amended by 1971 c.730 §3; 1973 c.840 §3; 1977 c.751 §18; renumbered 442.300]
LICENSING AND SUPERVISION OF FACILITIES
AND ORGANIZATIONS
441.015 Licensing of facilities and health
maintenance organizations; compliance with rules and standards.
(1) No person or governmental unit, acting severally or jointly with any other
person or governmental unit, shall establish, conduct, maintain, manage or
operate a health care facility or health maintenance organization, as defined
in ORS 442.015, in this state without a license.
(2)
Any health care facility or health maintenance organization which is in
operation at the time of promulgation of any applicable rules or minimum
standards under ORS 441.025 or 731.072 shall be given a reasonable length of
time within which to comply with such rules or minimum standards. [Amended by
1971 c.730 §4; 1973 c.840 §4; 1977 c.751 §19; 2003 c.14 §249; 2009 c.792 §37]
441.017 [1981
c.231 §2; 1987 c.753 §1; 2009 c.595 §719; repealed by 2009 c.792 §49]
441.020 Application; fees.
(1) Licenses for health care facilities, except long term facilities as defined
in ORS 442.015, must be obtained from the Oregon Health Authority.
(2)
Licenses for long term care facilities must be obtained from the Department of
Human Services.
(3)
Applications shall be upon such forms and shall contain such information as the
authority or the department may reasonably require, which may include
affirmative evidence of ability to comply with such reasonable standards and
rules as may lawfully be prescribed under ORS 441.025.
(4)
Each application shall be accompanied by the license fee. If the license is
denied, the fee shall be refunded to the applicant. Except as provided in
subsection (15) of this section, if the license is issued, the fee shall be
paid into the State Treasury to the credit of:
(a)
The Oregon Health Authority Fund for the purpose of carrying out the functions
of the Oregon Health Authority under ORS 441.015 to 441.063; or
(b)
The Department of Human Services Account for the purpose of carrying out the
functions of the Department of Human Services under ORS 441.015 to 441.063 and
431.607 to 431.619.
(5)
Except as otherwise provided in subsection (8) of this section, for hospitals
with:
(a)
Fewer than 26 beds, the annual license fee shall be $1,250.
(b)
Twenty-six beds or more but fewer than 50 beds, the annual license fee shall be
$1,850.
(c)
Fifty or more beds but fewer than 100 beds, the annual license fee shall be
$3,800.
(d)
One hundred beds or more but fewer than 200 beds, the annual license fee shall
be $6,525.
(e)
Two hundred or more beds, but fewer than 500 beds, the annual license fee shall
be $8,500.
(f)
Five hundred or more beds, the annual license fee shall be $12,070.
(6)
A hospital shall pay an annual fee of $750 for each hospital satellite indorsed
under its license.
(7)
The authority may charge a reduced hospital fee or hospital satellite fee if
the authority determines that charging the standard fee constitutes a
significant financial burden to the facility.
(8)
For long term care facilities with:
(a)
One to 15 beds, the annual license fee shall be $180.
(b)
Sixteen to 49 beds, the annual license fee shall be $260.
(c)
Fifty to 99 beds, the annual license fee shall be $520.
(d)
One hundred to 150 beds, the annual license fee shall be $670.
(e)
More than 150 beds, the annual license fee shall be $750.
(9)
For ambulatory surgical centers, the annual license fee shall be:
(a)
$1,750 for certified and high complexity noncertified ambulatory surgical
centers with more than two procedure rooms.
(b)
$1,250 for certified and high complexity noncertified ambulatory surgical
centers with no more than two procedure rooms.
(c)
$1,000 for moderate complexity noncertified ambulatory surgical centers.
(10)
For birthing centers, the annual license fee shall be $750.
(11)
For outpatient renal dialysis facilities, the annual license fee shall be
$2,000.
(12)
During the time the licenses remain in force, holders are not required to pay
inspection fees to any county, city or other municipality.
(13)
Any health care facility license may be indorsed to permit operation at more
than one location. If so, the applicable license fee shall be the sum of the
license fees that would be applicable if each location were separately
licensed. The authority may include hospital satellites on a hospital’s license
in accordance with rules adopted by the authority.
(14)
Licenses for health maintenance organizations shall be obtained from the
Director of the Department of Consumer and Business Services pursuant to ORS
731.072.
(15)
All moneys received pursuant to subsection (8) of this section shall be
deposited in the Quality Care Fund established in ORS 443.001.
(16)
As used in this section:
(a)
“Hospital satellite” has the meaning prescribed by the authority by rule.
(b)
“Procedure room” means a room where surgery or invasive procedures are
performed. [Amended by 1957 c.697 §1; 1971 c.650 §19; 1971 c.730 §5; 1973 c.840
§5; 1977 c.284 §4; 1977 c.751 §20a; 1979 c.696 §15; 1987 c.428 §3; 1987 c.918 §7;
1995 c.449 §1; 1997 c.249 §139; 2001 c.100 §2; 2001 c.900 §161; 2009 c.595 §720;
2009 c.792 §§53,53a; 2009 c.828 §84]
441.021 Additional fees for investigation and
compliance activities. (1) In addition to an annual
fee, the Oregon Health Authority may charge a hospital a fee for:
(a)
Complaint investigation, in an amount not to exceed $850.
(b)
Full compliance survey, in an amount not to exceed $7,520.
(c)
On-site follow-up survey to verify compliance with a plan of correction, in an
amount not to exceed $225.
(d)
Off-site follow-up survey to verify compliance with a plan of correction, in an
amount not to exceed $85.
(2)
During one calendar year, the authority may charge to all hospitals a total
amount not to exceed:
(a)
$91,000 for complaint investigations.
(b)
$15,000 for full compliance surveys.
(c)
$6,700 for follow-up surveys.
(3)(a)
The authority shall apportion the total amount charged under subsection (2) of
this section among hospitals at the end of each calendar year based on the
number of complaint investigations, full compliance surveys and follow-up
surveys performed at each hospital during the calendar year.
(b)
The authority may not include investigations of employee complaints in a
hospital’s total number of complaint investigations.
(c)
A hospital may not be charged fees in any calendar year under subsection (2) of
this section for more complaint investigations than the greater of:
(A)
The rolling average for the hospital for the previous three years; or
(B)
Two complaint investigations for a small hospital and five complaint
investigations for a large hospital.
(d)
Notwithstanding paragraph (c) of this subsection, the authority may not charge
a hospital for a number of complaint investigations that exceeds the number of
complaint investigations actually conducted at the hospital during the calendar
year.
(4)
As used in this section, “full compliance survey” means a survey conducted by
the authority following a complaint investigation to determine a hospital’s
compliance with the Centers for Medicare and Medicaid Services Conditions of
Participation. [2009 c.792 §4b; 2009 c.792 §54; 2011 c.720 §195a]
Note:
441.021 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 441 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
441.022 Factors to be considered in
licensing. In determining whether to license a
health care facility pursuant to ORS 441.025, the Oregon Health Authority or
the Department of Human Services shall consider only factors relating to the
health and safety of individuals to be cared for therein and the ability of the
operator of the health care facility to safely operate the facility, and may
not consider whether the health care facility is or will be a governmental,
charitable or other nonprofit institution or whether the facility is or will be
an institution for profit. [1967 c.584 §2; 1971 c.730 §6; 1973 c.840 §6; 1987
c.428 §4; 2001 c.900 §162; 2009 c.595 §721; 2009 c.792 §55]
441.025 License issuance; rules; renewal;
disclosure; transfer; posting. (1)(a) Upon
receipt of a license fee and an application to operate a health care facility
other than a long term care facility, the Oregon Health Authority shall review
the application and conduct an on-site inspection of the health care facility.
The authority shall issue a license if it finds that the applicant and health
care facility comply with ORS 441.015 to 441.063 and the rules of the authority
provided that the authority does not receive within the time specified a
certificate of noncompliance issued by the State Fire Marshal, deputy, or
approved authority pursuant to ORS 479.215.
(b)
The authority shall, following payment of the fee, annually renew each license
issued under this subsection unless:
(A)
The health care facility’s license has been suspended or revoked; or
(B)
The State Fire Marshal, a deputy or an approved authority has issued a
certificate of noncompliance pursuant to ORS 479.215.
(2)(a)
Upon receipt of a license fee and an application to operate a long term care
facility, the Department of Human Services shall review the application and
conduct an on-site inspection of the long term care facility. The department
shall issue a license if the department finds that the applicant and long term
care facility comply with ORS 441.015 to 441.063 and 441.087 and the rules of
the department provided that it does not receive within the time specified a
certificate of noncompliance issued by the State Fire Marshal, deputy, or approved
authority pursuant to ORS 479.215.
(b)
The department shall, following an on-site inspection and payment of the fee,
annually renew each license issued under this subsection unless:
(A)
The long term care facility’s license has been suspended or revoked;
(B)
The long term care facility is found not to be in substantial compliance
following the on-site inspection; or
(C)
The State Fire Marshal, a deputy or an approved authority has issued a
certificate of noncompliance pursuant to ORS 479.215.
(3)
Each license shall be issued only for the premises and persons or governmental
units named in the application and shall not be transferable or assignable.
(4)
Licenses shall be posted in a conspicuous place on the licensed premises as
prescribed by rule of the authority or the department.
(5)
No license shall be issued or renewed for any health care facility or health
maintenance organization that is required to obtain a certificate of need under
ORS 442.315 until a certificate of need has been granted. An ambulatory
surgical center is not subject to the certificate of need requirements in ORS
442.315.
(6)
No license shall be issued or renewed for any skilled nursing facility or
intermediate care facility, unless the applicant has included in the application
the name and such other information as may be necessary to establish the
identity and financial interests of any person who has incidents of ownership
in the facility representing an interest of 10 percent or more thereof. If the
person having such interest is a corporation, the name of any stockholder
holding stock representing an interest in the facility of 10 percent or more
shall also be included in the application. If the person having such interest
is any other entity, the name of any member thereof having incidents of
ownership representing an interest of 10 percent or more in the facility shall
also be included in the application.
(7)
A license may be denied to any applicant for a license or renewal thereof or
any stockholder of any such applicant who has incidents of ownership in the
health care facility representing an interest of 10 percent or more thereof, or
an interest of 10 percent or more of a lease agreement for the facility, if
during the five years prior to the application the applicant or any stockholder
of the applicant had an interest of 10 percent or more in the facility or of a
lease for the facility and has divested that interest after receiving from the
authority or the department written notice that the authority or the department
intends to suspend or revoke the license or to decertify the facility from
eligibility to receive payments for services provided under this section.
(8)
The Department of Human Services may not issue or renew a license for a long
term care facility, unless the applicant has included in the application the
identity of any person who has incident of ownership in the long term care
facility who also has a financial interest in any pharmacy, as defined in ORS
689.005.
(9)
The authority shall adopt rules for each type of health care facility, except
long term care facilities, to carry out the purposes of ORS 441.015 to 441.087
including, but not limited to:
(a)
Establishing classifications and descriptions for the different types of health
care facilities that are licensed under ORS 441.015 to 441.087; and
(b)
Standards for patient care and safety, adequate professional staff
organizations, training of staff for whom no other state regulation exists,
suitable delineation of professional privileges and adequate staff analyses of
clinical records.
(10)
The department shall adopt rules for each type of long term care facility to
carry out the purposes of ORS 441.015 to 441.087 including, but not limited to:
(a)
Establishing classifications and descriptions for the different types of long
term care facilities that are licensed under ORS 441.015 to 441.087; and
(b)
Standards for patient care and safety, adequate professional staff
organizations, training of staff for whom no other state regulation exists,
suitable delineation of professional privileges and adequate staff analyses of
clinical records.
(11)
The authority or department may not adopt a rule requiring a health care
facility to serve a specific food as long as the necessary nutritional food
elements are present in the food that is served.
(12)
A health care facility licensed by the authority or department may not:
(a)
Offer or provide services beyond the scope of the license classification
assigned by the authority or department; or
(b)
Assume a descriptive title or represent itself under a descriptive title other
than the classification assigned by the authority or department.
(13)
A health care facility must reapply for licensure to change the classification
assigned or the type of license issued by the authority or department. [Amended
by 1957 c.697 §2; 1961 c.316 §6; 1967 c.89 §3; 1971 c.730 §7; 1973 c.38 §1;
1973 c.840 §7; 1977 c.261 §3; 1977 c.751 §21; 1979 c.336 §1; 1983 c.740 §156;
1985 c.747 §20; 1987 c.428 §5; 1989 c.1034 §4; 2001 c.900 §163; 2009 c.595 §722;
2009 c.792 §56; 2011 c.35 §1]
441.030 Denial, suspension or revocation
of licenses; restrictions on admission; penalties.
(1) The Oregon Health Authority or the Department of Human Services may assess
a civil penalty and, pursuant to ORS 479.215, shall deny, suspend or revoke a
license, in any case where the State Fire Marshal, or the representative of the
State Fire Marshal, certifies that there is a failure to comply with all
applicable laws, lawful ordinances and rules relating to safety from fire.
(2)
The authority may:
(a)
Assess a civil penalty or deny, suspend or revoke a license of a health care
facility other than a long term care facility in any case where it finds that
there has been a substantial failure to comply with ORS 441.015 to 441.063 or
the rules or minimum standards adopted under ORS 441.015 to 441.063.
(b)
Assess a civil penalty or suspend or revoke a license issued under ORS 441.025
for failure to comply with an authority order arising from a health care facility’s
substantial lack of compliance with the provisions of ORS 441.015 to 441.063,
441.162 or 441.166 or the rules adopted under ORS 441.015 to 441.063, 441.162
or 441.166.
(c)
Suspend or revoke a license issued under ORS 441.025 for failure to pay a civil
penalty imposed under ORS 441.170.
(3)
The department may:
(a)
Assess a civil penalty or deny, suspend or revoke a long term care facility’s
license in any case where it finds that there has been a substantial failure to
comply with ORS 441.015 to 441.063 or 441.087 or the rules or minimum standards
adopted under ORS 441.015 to 441.063 or 441.087.
(b)
Assess a civil penalty or suspend or revoke a long term care facility’s license
issued under ORS 441.025 for failure to comply with a department order arising
from a long term care facility’s substantial lack of compliance with the
provisions of ORS 441.015 to 441.063, 441.084 or 441.087 or the rules adopted
under ORS 441.015 to 441.063, 441.084 or 441.087.
(c)
Suspend or revoke a license issued under ORS 441.025 for failure to pay a civil
penalty imposed under ORS 441.710.
(d)
Order a long term care facility licensed under ORS 441.025 to restrict the
admission of patients when the department finds an immediate threat to patient
health and safety arising from failure of the long term care facility to be in
compliance with ORS 441.015 to 441.063, 441.084 or 441.087 and the rules
adopted under ORS 441.015 to 441.063, 441.084 or 441.087.
(4)
Any long term care facility that has been ordered to restrict the admission of
patients pursuant to subsection (3)(d) of this section shall post a notice of
the restriction, provided by the department, on all doors providing ingress to
and egress from the facility, for the duration of the restriction. [Amended by
1959 c.222 §1; 1961 c.316 §7; 1971 c.730 §8; 1977 c.582 §46; 1987 c.428 §6;
1989 c.171 §55; 1991 c.734 §22; 2001 c.609 §8; 2001 c.900 §164; 2007 c.71 §125;
2009 c.595 §723; 2009 c.792 §57]
441.035
[Amended by 1959 c.222 §2; 1959 c.466 §1; 1971 c.730 §9; repealed by 1971 c.734
§21]
441.037 Hearings; procedures; judicial
review. (1) When the Oregon Health Authority or
the Department of Human Services proposes to refuse to issue or renew a
license, or proposes to revoke or suspend a license, opportunity for hearing
shall be accorded as provided in ORS chapter 183.
(2)
Adoption of rules, conduct of hearings, issuance of orders and judicial review
of rules and orders shall be in accordance with ORS chapter 183. [1971 c.734 §56;
1977 c.582 §47; 1987 c.428 §7; 2001 c.900 §165; 2009 c.595 §724]
441.040
[Amended by 1959 c.222 §3; 1971 c.730 §10; repealed by 1971 c.734 §21]
441.045
[Amended by 1959 c.222 §4; 1959 c.466 §2; 1971 c.730 §11; repealed by 1971
c.734 §21]
441.050 Additional remedies.
(1) Notwithstanding the existence and pursuit of any other remedy, the Oregon
Health Authority may, in the manner provided by law, maintain an action in the
name of the state for injunction or other process against any person or
governmental unit to restrain or prevent the establishment, conduct, management
or operation of a health care facility or health maintenance organization
without a license.
(2)
Notwithstanding the existence and pursuit of any other remedy, the Department
of Human Services may, in the manner provided by law, maintain an action in the
name of the state for injunction or other process against any person or
governmental unit to restrain or prevent the establishment, conduct, management
or operation of a long term care facility without a license. [Amended by 1971
c.730 §12; 1973 c.840 §8; 1977 c.751 §22; 1987 c.428 §8; 2001 c.900 §166; 2009
c.595 §725]
441.055 Rules; health care facilities to
ensure compliance; medical staff bylaws; peer review; procedure.
(1) The governing body of each health care facility shall be responsible for
the operation of the facility, the selection of the medical staff and the
quality of care rendered in the facility. The governing body shall:
(a)
Ensure that all health care personnel for whom state licenses, registrations or
certificates are required are currently licensed, registered or certified;
(b)
Ensure that physicians admitted to practice in the facility are granted
privileges consistent with their individual training, experience and other
qualifications;
(c)
Ensure that procedures for granting, restricting and terminating privileges
exist and that such procedures are regularly reviewed to ensure their
conformity to applicable law;
(d)
Ensure that physicians admitted to practice in the facility are organized into
a medical staff in such a manner as to effectively review the professional
practices of the facility for the purposes of reducing morbidity and mortality
and for the improvement of patient care; and
(e)
Ensure that a physician is not denied medical staff membership or privileges at
the facility solely on the basis that the physician holds medical staff
membership or privileges at another health care facility.
(2)
The physicians organized into a medical staff pursuant to subsection (1) of
this section shall propose medical staff bylaws to govern the medical staff.
The bylaws shall include, but not be limited to the following:
(a)
Procedures for physicians admitted to practice in the facility to organize into
a medical staff pursuant to subsection (1) of this section;
(b)
Procedures for ensuring that physicians admitted to practice in the facility
are granted privileges consistent with their individual training, experience
and other qualifications;
(c)
Provisions establishing a framework for the medical staff to nominate, elect,
appoint or remove officers and other persons to carry out medical staff
activities with accountability to the governing body;
(d)
Procedures for ensuring that physicians admitted to practice in the facility
are currently licensed by the Oregon Medical Board;
(e)
Procedures for ensuring that the facility’s procedures for granting,
restricting and terminating privileges are followed and that such procedures
are regularly reviewed to assure their conformity to applicable law; and
(f)
Procedures for ensuring that physicians provide services within the scope of
the privileges granted by the governing body.
(3)
Amendments to medical staff bylaws shall be accomplished through a cooperative
process involving both the medical staff and the governing body. Medical staff
bylaws shall be adopted, repealed or amended when approved by the medical staff
and the governing body. Approval shall not be unreasonably withheld by either.
Neither the medical staff nor the governing body shall withhold approval if
such repeal, amendment or adoption is mandated by law, statute or regulation or
is necessary to obtain or maintain accreditation or to comply with fiduciary
responsibilities or if the failure to approve would subvert the stated moral or
ethical purposes of the institution.
(4)
The Oregon Medical Board may appoint one or more physicians to conduct peer
review for a health care facility upon request of such review by all of the
following:
(a)
The physician whose practice is being reviewed.
(b)
The executive committee of the health care facility’s medical staff.
(c)
The governing body of the health care facility.
(5)
The physicians appointed pursuant to subsection (4) of this section shall be
deemed agents of the Oregon Medical Board, subject to the provisions of ORS
30.310 to 30.400 and shall conduct peer review. Peer review shall be conducted
pursuant to the bylaws of the requesting health care facility.
(6)
Any person serving on or communicating information to a peer review committee
shall not be subject to an action for damages for action or communications or
statements made in good faith.
(7)
All findings and conclusions, interviews, reports, studies, communications and
statements procured by or furnished to the peer review committee in connection
with a peer review are confidential pursuant to ORS 192.501 to 192.505 and
192.690 and all data is privileged pursuant to ORS 41.675.
(8)
Notwithstanding subsection (7) of this section, a written report of the
findings and conclusions of the peer review shall be provided to the governing
body of the health care facility who shall abide by the privileged and
confidential provisions set forth in subsection (7) of this section.
(9)
Procedures for peer review established by subsections (4) to (8) of this section
are exempt from ORS chapter 183.
(10)
The Oregon Health Authority shall adopt by rule standards for rural hospitals,
as defined in ORS 442.470, that specifically address the provision of care to
postpartum and newborn patients so long as patient care is not adversely
affected.
(11)
For purposes of this section, “physician” has the meaning given the term in ORS
677.010. [Amended by 1965 c.352 §1; 1971 c.730 §13; 1973 c.837 §14; 1973 c.840 §9;
1977 c.261 §4; 1977 c.448 §10; 1977 c.751 §23a; 1987 c.428 §9; 1987 c.850 §2;
1993 c.269 §1; 1995 c.727 §38; 1995 c.763 §1; 1999 c.542 §1; 2001 c.900 §167;
2009 c.595 §726; 2009 c.792 §58]
441.057 Rules concerning complaints about
care; reporting by employee. (1) Rules
adopted pursuant to ORS 441.025 shall include procedures for the filing of
complaints as to the standard of care in any health care facility and provide
for the confidentiality of the identity of any complainant.
(2)
A health care facility, or person acting in the interest of the facility, may
not take any disciplinary or other adverse action against any employee who in
good faith brings evidence of inappropriate care or any other violation of law
or rules to the attention of the proper authority solely because of the
employee’s action as described in this subsection.
(3)
Any employee who has knowledge of inappropriate care or any other violation of
law or rules shall utilize established reporting procedures of the health care
facility administration before notifying the Department of Human Services,
Oregon Health Authority or other state agency of the alleged violation, unless
the employee believes that patient health or safety is in immediate jeopardy or
the employee makes the report to the department or the authority under the
confidentiality provisions of subsection (1) of this section.
(4)
The protection of health care facility employees under subsection (2) of this
section shall commence with the reporting of the alleged violation by the
employee to the administration of the health care facility or to the
department, authority or other state agency pursuant to subsection (3) of this
section.
(5)
Any person suffering loss or damage due to any violation of subsection (2) of
this section has a right of action for damages in addition to other appropriate
remedy.
(6)
The provisions of this section do not apply to a nursing staff, as defined in
ORS 441.172, who claims to be aggrieved by a violation of ORS 441.174 committed
by a hospital.
(7)
Information obtained by the department or the authority during an investigation
of a complaint or reported violation under this section is confidential and not
subject to public disclosure under ORS 192.410 to 192.505. Upon the conclusion
of the investigation, the department or the authority may publicly release a
report of the department’s or the authority’s findings but may not include
information in the report that could be used to identify the complainant or any
patient at the health care facility. The department or the authority may use
any information obtained during an investigation in an administrative or
judicial proceeding concerning the licensing of a health care facility, and may
report information obtained during an investigation to a health professional
regulatory board as defined in ORS 676.160 as that information pertains to a
licensee of the board. [1975 c.360 §2; 1981 c.336 §1; 1987 c.428 §10; 2001
c.609 §16; 2001 c.900 §168; 2009 c.595 §727; 2009 c.792 §59]
441.058 [1977
c.532 §2; 1979 c.168 §1; repealed by 1983 c.781 §8]
441.059 Access to previous X-rays and
reports by patients of chiropractic physicians.
The rules of a hospital that govern patient access to previously performed
X-rays or diagnostic laboratory reports shall not discriminate between patients
of chiropractic physicians and patients of other licensed medical practitioners
permitted access to such X-rays and diagnostic laboratory reports. [1979 c.490 §2]
441.060 Inspections; approval of plans and
specifications; rules; fees. (1) The
Oregon Health Authority shall make or cause to be made on-site inspections of
health care facilities licensed under ORS 441.025 (1) at least once every three
years.
(2)
The authority and the Department of Human Services may prescribe by rule that
any licensee or prospective applicant desiring to make specified types of
alteration or addition to its facilities or to construct new facilities shall,
before commencing such alteration, addition or new construction, either prior
to or after receiving a certificate of need pursuant to ORS 442.315, if required,
submit plans and specifications therefor to the authority or the department for
preliminary inspection and approval or recommendations with respect to
compliance with the rules authorized by ORS 441.025 and 443.420 and for
compliance with National Fire Protection Association standards when the
facility is also to be Medicare or Medicaid certified.
(3)
The authority or the department may require by rule payment of a fee for
project review services at a variable rate, dependent on total project cost.
(4)
For health care facilities, the authority shall develop a review fee schedule
as minimally necessary to support the staffing level and expenses required to
administer the program.
(5)
For long term care facilities and residential care facilities, the department
shall develop a review fee schedule as minimally necessary to support the
staffing level and expenses required to administer the program. The fee for
project review of residential care facilities shall equal two-thirds that
required of health care facilities.
(6)
The authority or the department may also conduct an on-site review of projects
as a prerequisite to licensure of new facilities, major renovations and
expansions. The authority and the department shall, at least annually, with the
advice of the facilities covered by the review, present proposed rule changes
regarding facility design and construction to such agencies for their
consideration.
(7)
The authority shall publish a state submissions guide for health care facility
projects and advise project sponsors of applicable requirements of federal,
state and local regulatory agencies.
(8)
The department shall publish a state submissions guide for long term care
facility and residential care facility projects and advise project sponsors of
applicable requirements of federal, state and local regulatory agencies. [Amended
by 1965 c.352 §2; 1971 c.730 §14; 1973 c.840 §10; 1985 c.747 §29; 1987 c.428 §11;
1987 c.660 §23; 2001 c.104 §178; 2001 c.900 §169; 2009 c.595 §728; 2009 c.792 §60;
2011 c.35 §2]
441.061 Delegation of health inspections
to local governmental agencies; financial assistance.
(1) Upon agreement, the Director of Human Services may grant specific
authorization to any county or district board of health to administer and
enforce any law or rules of the Department of Human Services relating to
inspections and issuance, revocation and suspension of licenses, or portion
thereof, for long term care facilities.
(2)
Pursuant to an agreement as provided in subsection (1) of this section, the
director may provide funds and other resources to the county or district board
of health necessary to enable the county or district board of health to perform
the agreed upon functions. [1977 c.261 §2; 1987 c.428 §12]
441.062 Coordination of inspections;
rules. (1) In conducting inspections for the
purpose of licensing health care facilities under ORS 441.020, the Oregon
Health Authority and the Department of Human Services shall avoid unnecessary
facility disruption by coordinating inspections performed by the authority or
the department with inspections performed by other federal, state and local
agencies that have responsibility for health care facility licensure.
(2)
Whenever possible, the authority and the department shall avoid duplication of
inspections by accepting inspection reports or surveys prepared by other state
agencies that have responsibility for health care facility licensure for
purposes of the inspection required for licensure.
(3)
In lieu of an on-site inspection as required by ORS 441.025 and 441.060, the
authority or the department may accept a certification or accreditation from a
federal agency or an accrediting body approved by the authority or the
department that the state licensing standards have been met, if:
(a)
The certification or accreditation is recognized by the authority or the
department as addressing the standards and condition of participation
requirements of the Centers for Medicare and Medicaid Services and other
standards set by the authority or the department;
(b)
The health care facility notifies the authority or the department to
participate in any exit interview conducted by the federal agency or
accrediting body; and
(c)
The health care facility provides copies of all documentation concerning the
certification or accreditation requested by the authority or the department.
(4)
The authority and the department shall adopt rules necessary to implement this
section. [1995 c.449 §6; 2001 c.900 §170; 2009 c.595 §729; 2009 c.792 §61]
Note:
441.062 was added to and made a part of 441.015 to 441.087 by legislative
action but was not added to any smaller series therein. See Preface to Oregon
Revised Statutes for further explanation.
441.063 Use of facilities by licensed
podiatric physicians and surgeons; regulation of admission and conduct.
The rules of the hospital shall include provisions for the use of the hospital
facilities by duly licensed podiatric physicians and surgeons subject to rules
and regulations governing the use established by the medical staff and the
podiatric staff of the hospital. The staff comprised of physicians and
podiatric physicians and surgeons shall regulate the admission and the conduct
of the podiatric physicians and surgeons while using the facilities of the
hospital and shall prescribe procedures whereby a podiatric physician and
surgeon’s use of the facilities may be suspended or terminated. [1973 c.279 §2;
2007 c.71 §126]
441.064 Use of facilities by licensed
nurse practitioners; rules regarding admissions and privileges.
(1) The rules of any hospital in this state may grant admitting privileges to
nurse practitioners licensed and certified under ORS 678.375 for purposes of
patient care, subject to hospital and medical staff bylaws, rules and
regulations governing admissions and staff privileges.
(2)
Rules shall be in writing and may include, but need not be limited to:
(a)
Limitations on the scope of privileges;
(b)
Monitoring and supervision of nurse practitioners in the hospital by physicians
who are members of the medical staff;
(c)
A requirement that a nurse practitioner co-admit patients with a physician who
is a member of the medical staff; and
(d)
Qualifications of nurse practitioners to be eligible for privileges including
but not limited to requirements of prior clinical and hospital experience.
(3)
The rules may also regulate the admissions and the conduct of nurse
practitioners while using the facilities of the hospital and may prescribe
procedures whereby a nurse practitioner’s privileges may be suspended or
terminated. The hospital may refuse such privileges to nurse practitioners only
upon the same basis that privileges are refused to other medical providers.
(4)
For purposes of this section, “physician” has the meaning given the term in ORS
677.010. [1993 c.34 §1; 1995 c.763 §2]
Note:
441.064 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 441 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
441.065 Exemption of certain religious
institutions. (1) ORS 441.015 to 441.063 or the rules
adopted pursuant thereto do not authorize the supervision, regulation or
control of the remedial care or treatment of residents or patients in any home
or institution that is described under subsection (2) of this section and is
conducted for those who rely upon treatment solely by prayer or spiritual
means, except as to the sanitary and safe conditions of the premises,
cleanliness of operation and its physical equipment. This section does not
exempt such a home or institution from the licensing requirements of ORS
441.015 to 441.087, 441.525 to 441.595, 441.815, 441.820, 441.990, 442.342,
442.344 and 442.400 to 442.463.
(2)
To qualify under subsection (1) of this section, a home or institution must:
(a)
Be owned by an entity that is registered with the Secretary of State as a
nonprofit corporation and that does not own, hold a financial interest in,
control or operate any facility, wherever located, of a type providing medical
health care and services; and
(b)
Provide 24 hour a day availability of nonmedical care and services.
(3)
As used in this section:
(a)
“Medical health care and services” means medical screening, examination,
diagnosis, prognosis, treatment and drug administration. “Medical health care
and services” does not include counseling or the provision of social services
or dietary services.
(b)
“Nonmedical care and services” means assistance or services, other than medical
health care and services, provided by attendants for the physical, mental,
emotional or spiritual comfort and well being of residents or patients. [Amended
by 1971 c.730 §17; 1973 c.840 §11; 1977 c.751 §24; 1997 c.490 §1; 2009 c.792 §38]
441.067 Inspection reports, complaint procedures
and rules; posting. (1) The Department of Human
Services shall provide to each licensed long term care facility in the state in
writing in clear concise language readily comprehensible by the average person:
(a)
The most recent inspection report conducted by the department of that facility;
(b)
An outline of the procedures for filing complaints against long term care
facilities; and
(c)
A summary of rules of the department affecting patient care standards for long
term care facilities.
(2)
The owner or operator of a long term care facility shall post the information
provided pursuant to subsection (1) of this section in a prominent place and
shall, upon request, provide a copy of the information to each patient of, or
person applying for admission to, the facility, or the guardian or conservator
of the applicant or patient. [1975 c.360 §3; 1987 c.428 §13]
441.070
[Amended by 1959 c.222 §5; repealed by 1971 c.730 §25]
441.073 Rules regarding staff ratio in
long term care facilities; variances; posting.
(1) The Department of Human Services shall adopt rules specifying maximum
number of patients per nursing assistant per shift in long term care
facilities.
(2)
The department may grant variances in the staffing requirements within a shift
based on patient care needs or nursing practices.
(3)
A statement of the specific staffing requirement for each time period required
by subsection (1) or (2) of this section in a particular facility shall be
posted by the facility in a public place within the facility. [1981 c.574 §§2,3,4;
1987 c.428 §14]
441.075
[Amended by 1969 c.314 §44; repealed by 1971 c.730 §25]
441.077 Revocation of license and other
penalties for imposing restrictions upon certain physicians; construction of
section. (1) If the governing body of a health
care facility or health maintenance organization excludes or expels a person
licensed under ORS chapter 677 from staff membership, or limits in any way the
professional privilege of the person in the health care facility or health
maintenance organization solely because of the school of medicine to which the
person belongs, the license of the health care facility shall be subject to
revocation in the manner provided in ORS 441.015 to 441.065. A health
maintenance organization which violates this section shall be subject to
penalties provided in ORS 731.988 and 731.992.
(2)
Nothing in this section is intended to limit the authority of the governing
body of a health care facility or health maintenance organization with respect
to a person who has violated the reasonable rules and regulations of the health
care facility or health maintenance organization or who has violated the
provisions of ORS chapter 677 if the governing body has reported the violation
of ORS chapter 677 to the Oregon Medical Board in writing. [1971 c.274 §1; 1973
c.840 §12; 1977 c.751 §25]
Note:
441.077 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 441 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
441.079 Eye, organ and tissue transplants.
(1) As used in this section and ORS 441.082:
(a)
“Entity” means an individual, corporation, business trust, partnership, limited
liability company, association, joint venture or an instrumentality of an
entity.
(b)
“Eye bank” means an entity that is licensed or regulated under federal or state
law to engage in the recovery, screening, testing, processing, storage or
distribution of human eyes or parts of human eyes.
(c)
“Health care facility” has the meaning given that term in ORS 442.015.
(d)
“Organ procurement organization” means an entity designated by the United
States Secretary of Health and Human Services as an organ procurement
organization.
(e)
“Tissue bank” means an entity that is licensed or regulated under federal or
state law to engage in the recovery, screening, testing, processing, storage or
distribution of tissue for transplants.
(2)
Tissue banks and eye banks must be registered with and regulated by the United
States Food and Drug Administration.
(3)
A health care facility that performs organ transplants must:
(a)
Be a member of the Organ Procurement and Transplantation Network established by
the National Organ Transplant Act of 1984;
(b)
Be regulated by the United States Department of Health and Human Services; and
(c)
Use an organ procurement organization to obtain organs for transplants.
(4)
A health care facility that performs tissue or corneal transplants must obtain
the tissue or corneas from a tissue bank or an eye bank that is registered with
and regulated by the United States Food and Drug Administration. [2007 c.334 §1]
Note:
441.079 and 441.082 were enacted into law by the Legislative Assembly but were
not added to or made a part of ORS chapter 441 or any series therein by
legislative action. See Preface to Oregon Revised Statutes for further
explanation.
441.080
[Repealed by 1971 c.730 §25]
441.081 [1979
c.680 §2; repealed by 1981 c.784 §38]
441.082 Registration of organ procurement
organization, tissue bank and eye bank; rules; penalties.
(1) The Oregon Health Authority shall adopt by rule standards and a system of
registration for every organ procurement organization, tissue bank and eye bank
doing business in this state.
(2)
An organ procurement organization, tissue bank or eye bank may not do business
in this state unless it has registered with the authority.
(3)
Each organ procurement organization, tissue bank and eye bank shall provide to
the authority at least every three years current documentation of designation,
certification and inspection as evidence of compliance with national standards
and requirements under federal law.
(4)
The authority may impose a civil penalty not to exceed $1,000 against an organ
procurement organization, tissue bank or eye bank doing business in this state
for failure to:
(a)
Register with the authority;
(b)
Report loss of designation, accreditation or certification within 60 days of
the loss; or
(c)
Supply the authority with requested current documentation of designation,
certification and inspection.
(5)
Civil penalties under this section shall be imposed in the manner provided
under ORS 183.745. [2007 c.334 §2; 2009 c.595 §730]
Note: See
note under 441.079.
441.083 Drug information to be provided
patients of long term and intermediate care facilities.
(1) If a long term care facility or an intermediate care facility required to
be licensed pursuant to ORS 441.015 charges patients for drugs, the following
shall be made available to the patient on request:
(a)
Name of the drug;
(b)
Amount paid by the facility for the drug; and
(c)
Amount charged by the facility for the drug.
(2)
If a pharmacy charges any person for a drug administered to a patient in a long
term care facility or an intermediate care facility, the pharmacy shall provide
on request a written bill listing the:
(a)
Name of the drug; and
(b)
Amount charged by the pharmacy for the drug.
(3)
As used in this section, “person” includes the patient and any insurance
company or other party responsible for health care costs incurred by the
patient. [1979 c.680 §3]
441.084 Choice of patient on suppliers of
drugs and supplies. (1) As used in this section, “supplier”
includes an authorized representative of the patient who purchases nonprescriptive
medication or nonprescriptive sickroom supplies at retail.
(2)
A patient in a long term care facility or an intermediate care facility
required to be licensed under ORS 441.015 must have a choice:
(a)
From among prescription drug delivery systems as long as the system selected:
(A)
Provides for timely delivery of drugs;
(B)
Provides adequate protection to prevent tampering with drugs;
(C)
Provides that drugs are delivered in a unit of use compatible with the
established system of the facility for dispensing drugs, whether that system is
provided by a facility pharmacy or by a contract with a pharmacy; and
(D)
Provides a 24-hour emergency service procedure either directly or by contract
with another pharmacy;
(b)
From among suppliers of nonprescriptive medication, although no facility is
required to accept any opened container of such medication; and
(c)
From among suppliers of nonprescriptive sickroom supplies as long as any items
supplied can be maintained in a clean manner with equipment available at the
facility.
(3)
If the established system of the facility, whether that system is provided by a
facility pharmacy or a pharmacy under contract, provides patient profile
information, the pharmacy chosen by the patient under subsection (2)(a) of this
section must also provide that information for any patient it serves at the
facility. [1983 c.328 §1; 2007 c.71 §127]
441.085 [1971
c.730 §2; 1973 c.840 §13; 1977 c.751 §26; 1987 c.428 §15; 2001 c.900 §171; 2009
c.595 §731; repealed by 2009 c.792 §49]
441.086 Ambulatory surgical centers;
rules. (1) An ambulatory surgical center shall
evaluate all of a patient’s risk factors before permitting a surgical procedure
to be performed on the patient in the facility.
(2)
An ambulatory surgical center shall post a notice in the facility, in a
prominent place and in prominent font size, advising patients of the manner in
which patients may express concerns regarding the ambulatory surgical center
and services provided at the ambulatory surgical center. The posting must
include but need not be limited to the address and telephone number for
contacting the Oregon Health Authority to express the concerns.
(3)
The authority shall adopt rules classifying ambulatory surgical centers in
three categories:
(a)
Certified ambulatory surgical centers, which must comply with federal Centers
for Medicare and Medicaid Services rules, 42 C.F.R. 416 and rules adopted by
the authority;
(b)
High complexity noncertified ambulatory surgical centers, which must comply
with rules adopted by the authority; and
(c)
Moderate complexity noncertified ambulatory surgical centers, which must comply
with rules adopted by the authority and which may use only conscious sedation
and analgesia. [2009 c.792 §2; 2009 c.792 §51]
Note: 441.086
was added to and made a part of ORS chapter 441 by legislative action but was
not added to any smaller series therein. See Preface to Oregon Revised Statutes
for further explanation.
441.087 General inspection of long term
care facility. (1) The Department of Human Services
shall, in addition to any inspections conducted pursuant to complaints filed
against long term care facilities, conduct at least one general inspection of
each long term care facility in the state each calendar year, including, but
not limited to, entering the facility, interviewing residents and reviewing
records. No advance notice shall be given of any inspection conducted pursuant
to this section.
(2)
Any state employee giving advance notice in violation of subsection (1) of this
section shall be suspended from all duties without pay for a period of at least
10 working days, or for a longer period as determined by the Director of Human
Services. [1975 c.294 §§2,3; 1977 c.751 §27; 1987 c.428 §16; 2003 c.14 §250]
441.089 Application of Health Care Quality
Improvement Act of 1986. The provisions of the Health
Care Quality Improvement Act of 1986, P.L. No. 99-660, 100 Stat. p. 3743, 3784
(1986) apply within this state for professional review actions pursuant to ORS
441.015 to 441.087. [1987 c.850 §5]
441.090 [1971
c.730 §15; 1973 c.358 §6; 1973 c.840 §14; 1975 c.485 §1; 1977 c.751 §28;
renumbered 442.320]
441.092 [1975
c.485 §4; 1977 c.751 §29; renumbered 442.330]
441.094 Denial of emergency medical
services because of inability to pay prohibited.
(1) No officer or employee of a hospital licensed by the Oregon Health
Authority that has an emergency department may deny to a person an appropriate
medical screening examination within the capability of the emergency
department, including ancillary services routinely available to the emergency
department, to determine whether a need for emergency medical services exists.
(2)
No officer or employee of a hospital licensed by the authority may deny to a
person diagnosed by an admitting physician as being in need of emergency
medical services the emergency medical services customarily provided at the
hospital because the person is unable to establish the ability to pay for the
services.
(3)
Nothing in this section is intended to relieve a person of the obligation to
pay for services provided by a hospital.
(4)
A hospital that does not have physician services available at the time of the
emergency shall not be in violation of this section if, after a reasonable good
faith effort, a physician is unable to provide or delegate the provision of
emergency medical services.
(5)
All coordinated care organization contracts executed by the authority and
private health maintenance organizations and managed care organizations shall
include a provision that encourages the organization to establish agreements
with hospitals in the organization’s service area for payment of emergency
screening examinations.
(6)
As used in subsections (1) and (2) of this section, “emergency medical services”
means medical services that are usually and customarily available at the
respective hospital and that must be provided immediately to sustain a person’s
life, to prevent serious permanent disfigurement or loss or impairment of the
function of a bodily member or organ, or to provide care of a woman in her
labor where delivery is imminent if the hospital is so equipped and, if the
hospital is not equipped, to provide necessary treatment to allow the woman to
travel to a more appropriate facility without undue risk of serious harm. [1987
c.386 §1; 1995 c.449 §2; 2009 c.595 §732; 2011 c.602 §53]
Note:
441.094 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 441 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
441.095 [1971
c.730 §16; 1973 c.358 §7; 1973 c.840 §15; 1975 c.485 §2; 1977 c.751 §30;
renumbered 442.340]
441.096 Identification badges.
(1) A health care practitioner working at a health care facility and providing
direct care to a patient shall wear an identification badge indicating the
practitioner’s name and professional title.
(2)
A health care facility shall develop policies that specify the size and content
of the identification badge required by subsection (1) of this section.
(3)
As used in this section, “health care facility” means a health care facility as
defined in ORS 442.015 or a mental health facility, alcohol treatment facility
or drug treatment facility licensed or operated under ORS chapter 426 or 430. [2005
c.231 §1; 2011 c.720 §196]
Note:
441.096 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 441 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
441.097 [1987
c.428 §2c; repealed by 2001 c.900 §261]
441.098 Physician referral of patient to
treatment facility. (1) As used in this section:
(a)
“Facility” means a hospital, ambulatory surgical center or freestanding birthing
center.
(b)
“Financial interest” means a five percent or greater direct or indirect
ownership interest.
(c)
“Health practitioner” means a physician, podiatric physician and surgeon,
dentist, direct entry midwife or licensed registered nurse who is certified by
the Oregon State Board of Nursing as a nurse midwife nurse practitioner.
(d)
“Physician” has the meaning given that term in ORS 677.010.
(2)
If a health practitioner refers a patient for treatment at a facility in which
the health practitioner or an immediate family member has a financial interest,
the health practitioner shall inform the patient orally and in writing of that
interest at the time of the referral.
(3)
In obtaining informed consent for treatment that will take place at a facility,
a health practitioner shall disclose the manner in which care will be provided
in the event that complications occur that require health services beyond what
the facility has the capability to provide. [2009 c.792 §3]
LONG TERM CARE OMBUDSMAN
441.100 Definitions.
(1) “Administrative action” means any action or decision made by an owner,
employee or agent of a long term care facility or by a public agency that
affects the services to residents.
(2)
“Committee” means the Long Term Care Advisory Committee.
(3)
“Designee” means an individual appointed by the Long Term Care Ombudsman to
serve as a representative in order to carry out the purpose of ORS 441.100 to
441.153.
(4)
“Long term care facility” means any licensed skilled nursing facility intermediate
care facility, as defined in rules adopted under ORS 442.015, adult foster
homes with residents over 60 years of age and residential care facility as
defined in ORS 443.400. [1981 c.534 §1; 1985 c.153 §1; 2007 c.21 §3]
441.103 Office of Long Term Care
Ombudsman; terms; appointment; confirmation; qualifications.
(1) The office of the Long Term Care Ombudsman is established. The Long Term
Care Ombudsman shall function separately and independently from any other state
agency. The Governor shall appoint the Long Term Care Ombudsman for a four-year
term from a list of three nominees nominated by the Long Term Care Advisory
Committee established under ORS 441.137. Vacancies shall be filled within 60
days in the same manner as appointments are made, subject to Senate
confirmation under ORS 171.562 and 171.565.
(2)
The Long Term Care Ombudsman may be removed for just cause, upon recommendation
to the Governor by the Long Term Care Advisory Committee.
(3)
The Long Term Care Ombudsman shall have background and experience in the
following areas:
(a)
The field of aging;
(b)
Health care;
(c)
Working with community programs;
(d)
Strong understanding of long term care issues, both regulatory and policy;
(e)
Working with health care providers;
(f)
Working with and involvement in volunteer programs; and
(g)
Administrative and managerial experience. [1981 c.534 §2; 1985 c.153 §2]
441.105
[Amended by 1955 c.464 §1; 1965 c.308 §1; repealed by 1971 c.730 §25]
441.107 Funding of office.
The funding for the office of the Long Term Care Ombudsman shall include at
least one percent of Title III(B) of the Older Americans Act (Public Law 89-73)
funding received by this state. [1981 c.534 §3]
441.109 Duties of ombudsman; rules.
The office of the Long Term Care Ombudsman shall carry out the following
duties:
(1)
Investigate and resolve complaints made by or for residents of long term care
facilities about administrative actions that may adversely affect their health,
safety, welfare or rights, including subpoenaing any person to appear, give
sworn testimony or to produce documentary or other evidence that is reasonably
material to any matter under investigation.
(2)
Undertake, participate in or cooperate with persons and agencies in such
conferences, inquiries, meetings or studies as may lead to improvements in the
functioning of long term care facilities.
(3)
Monitor the development and implementation of federal, state and local laws,
regulations and policies that relate to long term care facilities in this
state.
(4)
Provide information to public agencies about the problems of residents of long
term care facilities.
(5)
Work closely with cooperative associations and citizen groups in this state.
(6)
Widely publicize the Long Term Care Ombudsman’s service, purpose and mode of
operation.
(7)
Collaborate with the Department of Human Services and the Nursing Home
Administrators Board to establish a statewide system to collect and analyze
information on complaints and conditions in long term care facilities for the
purpose of publicizing improvements and resolving significant problems.
(8)
Appoint designees to serve as local representatives of the office in various
districts of the state and regularly monitor their functions.
(9)
Specify qualifications and duties of designees.
(10)
Adopt rules necessary for carrying out ORS 441.100 to 441.133, after
consultation with the committee.
(11)
Provide periodically, or at least twice annually, a report to the Governor,
department and the Legislative Assembly.
(12)
Prepare necessary reports with the assistance of the department. [1981 c.534 §4;
1985 c.153 §3; 2001 c.900 §172; 2009 c.768 §32]
441.110
[Amended by 1955 c.464 §2; 1965 c.308 §2; repealed by 1971 c.730 §25]
441.113 Procedures to maintain
confidentiality. The Long Term Care Ombudsman
shall establish procedures to maintain the confidentiality of the records and
files of residents of long term care facilities. These procedures must meet the
following requirements:
(1)
The ombudsman or designee shall not disclose, except to state agencies, the
identity of any resident unless the complainant or the resident, or the legal
representative of either, consents in writing to the disclosure and specifies
to whom the disclosure may be made.
(2)
The identity of any complainant or resident on whose behalf a complaint is
made, or individual providing information on behalf of the resident or
complainant, shall be confidential. If the complaint becomes the subject of
judicial proceedings, the investigative information held by the ombudsman or
designee shall be disclosed for the purpose of the proceedings if requested by
the court. [1981 c.534 §5]
441.115
[Amended by 1965 c.308 §3; 1969 c.314 §45; repealed by 1971 c.730 §25]
441.117 Right of entry into facilities and
access to records. (1) The Long Term Care Ombudsman
and each designee shall have the right of entry into long term care facilities
at any time considered necessary and reasonable by the ombudsman or the
designee for the purpose of:
(a)
Investigating and resolving complaints by residents or on their behalf;
(b)
Interviewing residents, with their consent, in private;
(c)
Offering the services of the ombudsman or designee to any resident, in private;
(d)
Interviewing employees or agents of the long term care facility;
(e)
Consulting regularly with the facility administration; and
(f)
Providing services authorized by law or by rule.
(2)
The Long Term Care Ombudsman shall have access to any resident’s records, and
to records of any public agency necessary to the duties of the office,
including records on patient abuse complaints made pursuant to ORS 441.630 to
441.680 and 441.995. Nothing contained in ORS 192.553 to 192.581 is intended to
limit the access of the Long Term Care Ombudsman to medical records of residents
of long term care facilities. Designees may have access to individual resident’s
records, including medical records as authorized by the resident or resident’s
legal representative, if needed to investigate a complaint.
(3)
Entry and investigation authorized by this section shall be done in a manner
that does not disrupt significantly the providing of nursing or other personal
care to residents.
(4)
The ombudsman or the designee must show identification to the person in charge
of the facility. The resident shall have the right to refuse to communicate
with the ombudsman or designee. The refusal shall be made directly to the
ombudsman or designee and not through an intermediary.
(5)
The resident shall have the right to participate in planning any course of
action to be taken on behalf of the resident by the ombudsman or the designee. [1981
c.534 §6; 2001 c.104 §179; 2003 c.86 §13]
441.120
[Repealed by 1971 c.730 §25]
441.121 Report after investigation; referral
to other agencies. Following an investigation, the
ombudsman or the designee shall report opinions or recommendations to the party
or parties affected thereby and shall attempt to resolve the complaint, using,
whenever possible, informal techniques of mediation, conciliation and
persuasion. Complaints of conditions adversely affecting residents of long term
care facilities, or those threatening the safety or well-being of residents
that cannot be resolved in the manner described in this section, shall be
referred to an appropriate state agency. Programs that promote the safety or
emotional or physical well-being of long term care residents shall be promoted
and publicized by the ombudsman and the designees. [1981 c.534 §7]
441.124 Notice of complaint procedures;
posting. (1) The Long Term Care Ombudsman shall
prepare and distribute to each long term care facility in this state a written
notice describing the procedures to follow in making a complaint, including the
address and telephone number of the ombudsman and local designee, if any.
(2)
The administrator of each long term care facility shall post the written notice
required by this section in conspicuous places in the facility in accordance
with procedures provided by the ombudsman and shall give such notice to any
resident and legally appointed guardian, if any. [1981 c.534 §8; 2003 c.14 §253]
441.125
[Amended by 1955 c.464 §3; 1971 c.730 §18; repealed by 1977 c.751 §39]
441.127 Immunity of employees.
(1) Any employee or agent of the long term care facility acting in good faith
in discussing patient care pursuant to ORS 441.117 shall have immunity from any
civil liability, that might otherwise be incurred or imposed with respect to
the making of such report.
(2)
Any employee or agent who makes a report pursuant to ORS 441.117 shall not be
subjected to any retaliation by any official or other employee of a long term
care facility solely for making a report, including but not limited to
restriction of otherwise lawful access to the facility or to any resident
thereof, or, if an employee, to dismissal or harassment.
(3)
The ombudsman or the designee acting in good faith in discussing patient care
pursuant to ORS 441.117 shall have immunity from any civil liability, that
might otherwise be incurred or imposed with respect to the discussion. [1981
c.534 §9]
441.130
[Amended by 1955 c.464 §4; 1971 c.730 §19; repealed by 1977 c.751 §39]
441.131 Appointment of designees;
qualifications; duties. (1) The appointments of
designees shall be made in consultation with a local screening committee which
may consist of but not be limited to persons representing:
(a)
The area agency on aging.
(b)
The local office of the Department of Human Services.
(c)
The local health department.
(d)
Senior citizens groups in the area.
(e)
Long term care facilities in the area.
(f)
Local elected officials.
(2)
To be appointed as a designee, a person must complete six days of initial
training and attend quarterly training sessions which are approved by the Long
Term Care Ombudsman and which shall be coordinated and funded by the Department
of Human Services subject to the availability of funds therefor. Local
screening committees shall be appointed by and serve at the pleasure of the
ombudsman.
(3)
Designees must sign a contract with the state which outlines the scope of their
duties. In districts where a designee is an employee or agent of a local
entity, a three-party contract shall be executed. Violation of the contract is
cause for the termination of the appointment. A directory of all designees
shall be maintained in the office of the Long Term Care Ombudsman.
(4)
The qualifications of designees shall include experience with long term care
facilities or residents thereof or potential residents including the ability to
communicate well, to understand laws, rules and regulations, and to be
assertive, yet objective.
(5)
Experience in either social service, gerontology, nursing or paralegal work
shall be preferred.
(6)
The contract shall include statements that the purpose of the Long Term Care
Ombudsman Program is to:
(a)
Promote rapport and trust between the residents, staff of the nursing home and
nursing home ombudsman program;
(b)
Assist nursing home residents with participating more actively in determining
the delivery of services in long term care facilities;
(c)
Serve as an educational resource;
(d)
Receive, resolve or relay concerns to the Long Term Care Ombudsman or the
appropriate agency; and
(e)
Assure equitable resolution of problems.
(7)
The duties of the designees are to:
(a)
Visit each assigned long term care facility on a regular basis:
(A)
Upon arrival and departure, inform a specified staff member.
(B)
Review, with a specified staff member, any problems or concerns which need to
be considered.
(C)
Visit individual residents and resident councils.
(b)
Maintain liaison with appropriate agencies and the Long Term Care Ombudsman.
(c)
Report, in writing, monthly to the Long Term Care Ombudsman.
(d)
Keep residents and long term care staff informed of the Long Term Care
Ombudsman Program.
(e)
Periodically review the Patients’ Bill of Rights with residents, families,
guardians, administrators and staff.
(f)
Perform other related duties as specified. [1981 c.534 §10; 1985 c.153 §4]
441.133 Effect of ORS 441.100 to 441.153
on right to visitors. Nothing in ORS 441.100 to
441.153 shall affect the right of residents of a long term care facility to see
visitors of their choice. [1981 c.534 §11]
441.135
[Amended by 1955 c.464 §5; 1965 c.308 §4; 1971 c.730 §20; repealed by 1977
c.751 §39]
441.137 Long Term Care Advisory Committee;
appointment; confirmation; term; qualifications.
(1) There is established a Long Term Care Advisory Committee of seven members
to be appointed in the following manner:
(a)
One person appointed by the Speaker of the House of Representatives;
(b)
One person appointed by the President of the Senate;
(c)
One person appointed by the House Minority Leader;
(d)
One person appointed by the Senate Minority Leader;
(e)
Two persons, from a list of four names submitted by the organizations of
seniors, appointed by the Governor; and
(f)
One person appointed by the Governor.
(2)
Members described in subsection (1)(e) and (f) of this section are subject to
confirmation by the Senate under ORS 171.562 and 171.565.
(3)
The term of office of each member is four years. Before the expiration of the
term of a member, the appointing authority shall appoint a successor whose term
begins on July 1 next following. A member is eligible for reappointment. If
there is a vacancy for any cause, the appointing authority shall make an
appointment to become immediately effective for the unexpired term.
(4)
The members of the committee must be citizens of this state who are broadly
representative to the extent possible of persons over 55 years of age,
including persons with disabilities and members of racial and ethnic
minorities, who have knowledge and interest in the problems of the elderly and
are representative of all areas of the state. At least five members shall be at
least 60 years of age.
(5)
A member of the committee may not have a financial or fiduciary interest in
long term care facilities or service providers, or involvement in the licensing
or certification of long term care facilities or service providers. [1985 c.153
§6; 1989 c.224 §93; 2007 c.70 §240; 2009 c.421 §1]
441.140
[Amended by 1955 c.464 §6; 1971 c.730 §21; 1977 c.751 §31; renumbered 442.350]
441.142 Duties.
The Long Term Care Advisory Committee shall:
(1)
Monitor the Long Term Care Ombudsman Program.
(2)
Advise the Governor and the Legislative Assembly on the Long Term Care
Ombudsman Program.
(3)
Nominate, after interviews and according to prescribed criteria, three persons
to fill the office of Long Term Care Ombudsman. [1985 c.153 §11]
441.145
[Amended by 1955 c.464 §7; 1965 c.308 §5; 1965 c.439 §5; 1971 c.730 §22;
repealed by 1977 c.751 §39]
441.146 Appeal to Long Term Care Advisory
Committee. (1) A long term care facility that
files a complaint against a designee appointed under ORS 441.131 and objects to
the action of the Long Term Care Ombudsman in resolving the complaint may
appeal the ombudsman’s action to a panel of the Long Term Care Advisory
Committee.
(2)
The committee on its own motion may review any action by the ombudsman
appealable under this section. The review shall provide an opportunity for
written and oral presentation by the long term care facility and the ombudsman.
The committee shall issue its findings and any instructions to the ombudsman in
written form consistent with the federal Older Americans Act.
(3)
If the committee disagrees with the action of the ombudsman, the committee may
refer the resolution back to the ombudsman with instructions consistent with
the federal Older Americans Act to conform the ombudsman’s action in the matter
to the recommendations of the committee. [1995 c.789 §1]
Note:
441.146 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 441 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
441.147 Officers; quorum; meetings;
expenses. (1) The Long Term Care Advisory
Committee shall select one of its members as chairperson and another as vice
chairperson, for such terms and with duties and powers necessary for the
performance of the functions of such offices as the committee determines.
(2)
A majority of the members of the committee constitutes a quorum for the
transaction of business. Decisions may be made by a majority of the quorum.
(3)
The committee shall meet at least once each month at a place, day and hour
determined by the committee. The committee also shall meet at other times and
places specified by the call of the chairperson or of a majority of the members
of the committee. The committee shall confer each month with the Long Term Care
Ombudsman.
(4)
A member of the Long Term Care Advisory Committee is entitled to compensation
and expenses as provided in ORS 292.495. [1985 c.153 §§8,9,10]
441.150
[Amended by 1971 c.730 §23; repealed by 1977 c.751 §39]
441.153 Long Term Care Ombudsman Account.
The Long Term Care Ombudsman Account is established separate and distinct from
the General Fund. All miscellaneous receipts, gifts and federal and other
grants received by the Long Term Care Ombudsman shall be deposited into the
Long Term Care Ombudsman Account and are continuously appropriated to the Long
Term Care Ombudsman for carrying out the responsibilities of the Long Term Care
Ombudsman. [1985 c.153 §14(3); 2001 c.716 §29]
HOSPITAL NURSING SERVICES
441.160 Definition for ORS 441.162 to
441.170. As used in ORS 441.162 to 441.170, “hospital”
includes a hospital as described in ORS 442.015 and an acute inpatient care
facility as defined in ORS 442.470. [2001 c.609 §1]
Note:
441.160 to 441.192 were enacted into law by the Legislative Assembly but were
not added to or made a part of ORS chapter 441 or any series therein by
legislative action. See Preface to Oregon Revised Statutes for further
explanation.
441.162 Written staffing plan for nursing
services. (1) A hospital shall be responsible for
the implementation of a written hospital-wide staffing plan for nursing
services. The staffing plan shall be developed, monitored, evaluated and
modified by a hospital staffing plan committee. To the extent possible, the
committee shall:
(a)
Include equal numbers of hospital nurse managers and direct care registered
nurses;
(b)
Include at least one direct care registered nurse from each hospital nurse
specialty or unit, to be selected by direct care registered nurses from the
particular specialty or unit. The hospital shall define its own specialties or
units; and
(c)
Have as its primary consideration the provision of safe patient care and an
adequate nursing staff pursuant to ORS chapter 441.
(2)
The hospital shall evaluate and monitor the staffing plan for effectiveness and
revise the staffing plan as necessary as part of the hospital’s quality
assurance process. The hospital shall maintain written documentation of these
quality assurance activities.
(3)
The written staffing plan shall:
(a)
Be based on an accurate description of individual and aggregate patient needs
and requirements for nursing care and include a periodic quality evaluation
process to determine whether the staffing plan is appropriately and accurately
reflecting patient needs over time.
(b)
Be based on the specialized qualifications and competencies of the nursing
staff. The skill mix and the competency of the staff shall ensure that the
nursing care needs of the patients are met and shall ensure patient safety.
(c)
Be consistent with nationally recognized evidence-based standards and
guidelines established by professional nursing specialty organizations and
recognize differences in patient acuteness.
(d)
Establish minimum numbers of nursing staff including licensed practical nurses
and certified nursing assistants required on specified shifts. At least one
registered nurse and one other nursing staff member must be on duty in a unit
when a patient is present.
(e)
Include a formal process for evaluating and initiating limitations on admission
or diversion of patients to another acute care facility when, in the judgment
of the direct care registered nurse, there is an inability to meet patient care
needs or a risk of harm to existing and new patients.
(4)
The hospital shall maintain and post a list of on-call nursing staff or
staffing agencies to provide replacement for nursing staff in the event of
vacancies. The list of on-call nurses or agencies must be sufficient to provide
replacement staff.
(5)(a)
An employer may not impose upon unionized nursing staff any changes in wages,
hours or other terms and conditions of employment pursuant to a staffing plan
developed or modified under subsection (1) of this section unless the employer
first provides notice to and, on request, bargains with the union as the
exclusive collective bargaining representative of the nursing staff in the
bargaining unit.
(b)
A staffing plan developed or modified under subsection (1) of this section does
not create, preempt or modify a collective bargaining agreement or require a
union or employer to bargain over the staffing plan while a collective
bargaining agreement is in effect. [2001 c.609 §2; 2005 c.665 §2]
Note: See
note under 441.160.
441.164 Variances in staffing plan
requirements. Upon request of a hospital, the Oregon
Health Authority may grant variances in the written staffing plan requirements
based on patient care needs or the nursing practices of the hospital. [2001
c.609 §3; 2009 c.595 §733]
Note: See
note under 441.160.
441.166 Need for replacement staff.
(1) When a hospital learns about the need for replacement staff, the hospital
shall make every reasonable effort to obtain registered nurses, licensed
practical nurses or certified nursing assistants for unfilled hours or shifts
before requiring a registered nurse, licensed practical nurse or certified
nursing assistant to work overtime.
(2)
A hospital may not require a registered nurse, licensed practical nurse or
certified nursing assistant to work:
(a)
Beyond the agreed-upon shift;
(b)
More than 48 hours in any hospital-defined work week; or
(c)
More than 12 consecutive hours in a 24-hour time period, except that a hospital
may require an additional hour of work beyond the 12 hours if:
(A)
A staff vacancy for the next shift becomes known at the end of the current
shift; or
(B)
There is a potential harm to an assigned patient if the registered nurse,
licensed practical nurse or certified nursing assistant leaves the assignment
or transfers care to another.
(3)(a)
Time spent in required meetings or receiving education or training shall be
included as hours worked for purposes of subsection (2) of this section.
(b)
Time spent on call but away from the premises of the employer may not be included
as hours worked for purposes of subsection (2) of this section.
(c)
Time spent on call or on standby when the registered nurse, licensed practical
nurse or certified nursing assistant is required to be at the premises of the
employer shall be included as hours worked for purposes of subsection (2) of
this section.
(4)
The provisions of this section do not apply to nursing staff needs:
(a)
In the event of a national or state emergency or circumstances requiring the
implementation of a facility disaster plan;
(b)
In emergency circumstances identified by the Oregon Health Authority by rule;
or
(c)
If a hospital has made reasonable efforts to contact all of the on-call nursing
staff or staffing agencies on the list described in ORS 441.162 and is unable
to obtain replacement staff in a timely manner. [2001 c.609 §4; 2005 c.665 §1;
2009 c.595 §734]
Note: See
note under 441.160.
441.168 Leaving a patient care assignment.
A registered nurse at a hospital may not place a patient at risk of harm by
leaving a patient care assignment during an agreed upon shift or an agreed upon
extended shift without authorization from the appropriate supervisory
personnel. [2001 c.609 §5]
Note: See
note under 441.160.
441.170 Civil penalties; suspension or
revocation of license; rules; records; compliance audits.
(1) The Oregon Health Authority may impose civil penalties in the manner
provided in ORS 183.745 or suspend or revoke a license of a hospital for a
violation of any provision of ORS 441.162 or 441.166. The authority shall adopt
by rule a schedule establishing the amount of civil penalty that may be imposed
for any violation of ORS 441.162 or 441.166 when there is a reasonable belief
that safe patient care has been or may be negatively impacted. A civil penalty imposed
under this subsection may not exceed $5,000. Each violation of a nursing staff
plan shall be considered a separate violation. Any license that is suspended or
revoked under this subsection shall be suspended or revoked as provided in ORS
441.030.
(2)
The authority shall maintain for public inspection records of any civil
penalties or license suspensions or revocations imposed on hospitals penalized
under subsection (1) of this section.
(3)
The authority shall conduct an annual random audit of not less than seven
percent of all hospitals in this state solely to verify compliance with the
requirements of ORS 441.162, 441.166 and 441.192. Surveys made by private
accrediting organizations may not be used in lieu of the audit required under
this subsection. The authority shall compile and maintain for public inspection
an annual report of the audit conducted under this subsection.
(4)
The costs of the audit required under subsection (3) of this section may be
paid out of funds from licensing fees paid by hospitals under ORS 441.020. [2001
c.609 §6; 2009 c.595 §735]
Note: See
note under 441.160.
441.172 Definitions for ORS 441.172 to
441.182. As used in ORS 441.172 to 441.182:
(1)
“Affiliated hospital” means a hospital that has a business relationship with
another hospital.
(2)
“Hospital” means:
(a)
An acute inpatient care facility, as defined in ORS 442.470; or
(b)
A hospital as described in ORS 442.015.
(3)
“Manager” means a person who:
(a)
Has authority to direct and control the work performance of nursing staff;
(b)
Has authority to take corrective action regarding a violation of law or a rule
or a violation of professional standards of practice, about which a nursing
staff has complained; or
(c)
Has been designated by a hospital to receive the notice described in ORS
441.174 (2).
(4)
“Nursing staff” means a registered nurse, a licensed practical nurse, a nursing
assistant or any other assistive nursing personnel.
(5)
“Public body” has the meaning given that term in ORS 30.260.
(6)
“Retaliatory action” means the discharge, suspension, demotion, harassment,
denial of employment or promotion, or layoff of a nursing staff, or other
adverse action taken against a nursing staff in the terms or conditions of
employment of the nursing staff, as a result of filing a complaint. [2001 c.609
§9]
Note: See
note under 441.160.
441.174 Retaliation prohibited.
(1) A hospital may not take retaliatory action against a nursing staff because
the nursing staff:
(a)
Discloses or intends to disclose to a manager, a private accreditation
organization or a public body an activity, policy or practice of the hospital
or of a hospital that the nursing staff reasonably believes is in violation of
law or a rule or is a violation of professional standards of practice that the
nursing staff reasonably believes poses a risk to the health, safety or welfare
of a patient or the public;
(b)
Provides information to or testifies before a private accreditation
organization or a public body conducting an investigation, hearing or inquiry
into an alleged violation of law or rule or into an activity, policy or
practice that may be in violation of professional standards of practice by a
hospital that the nursing staff reasonably believes poses a risk to the health,
safety or welfare of a patient or the public;
(c)
Objects to or refuses to participate in any activity, policy or practice of a
hospital that the nursing staff reasonably believes is in violation of law or
rule or is a violation of professional standards of practice that the nursing
staff reasonably believes poses a risk to the health, safety or welfare of a
patient or the public; or
(d)
Participates in a committee or peer review process or files a report or a
complaint that discusses allegations of unsafe, dangerous or potentially
dangerous care.
(2)
Except as provided in subsection (3) of this section, the protection against
retaliatory action in subsection (1) of this section does not apply to a
nursing staff, unless the nursing staff, before making a disclosure to a
private accreditation organization or a public body as described in subsection
(1)(a) of this section:
(a)
Gives written notice to a manager of the hospital of the activity, policy,
practice or violation of professional standards of practice that the nursing
staff reasonably believes poses a risk to public health; and
(b)
Provides the manager a reasonable opportunity to correct the activity, policy,
practice or violation.
(3)
A nursing staff is not required to comply with the provisions of subsection (2)
of this section if the nursing staff:
(a)
Is reasonably certain that the activity, policy, practice or violation is known
to one or more managers of the hospital or an affiliated hospital and an
emergency situation exists;
(b)
Reasonably fears physical harm as a result of the disclosure; or
(c)
Makes the disclosure to a private accreditation organization or a public body
for the purpose of providing evidence of an activity, policy, practice or
violation of a hospital or an affiliated hospital that the nursing staff
reasonably believes is a crime. [2001 c.609 §10]
Note: See
note under 441.160.
441.176 Remedies for retaliation.
(1) A nursing staff aggrieved by an act prohibited by ORS 441.174 may bring an
action in circuit court of the county in which the hospital is located. All
remedies available in a common law tort action are available to a nursing staff
if the nursing staff prevails in an action brought under this subsection and
are in addition to any remedies provided in subsection (2) of this section.
(2)
In an action brought under subsection (1) of this section, a circuit court may
do any of the following:
(a)
Issue a temporary restraining order or a preliminary or permanent injunction to
restrain a continued violation of ORS 441.174.
(b)
Reinstate the nursing staff to the same or equivalent position that the nursing
staff held before the retaliatory action.
(c)
Reinstate full benefits and seniority rights to the nursing staff as if the
nursing staff had continued in employment.
(d)
Compensate the nursing staff for lost wages, benefits and other remuneration,
including interest, as if the nursing staff had continued in employment.
(e)
Order the hospital to pay reasonable litigation costs of the nursing staff,
including reasonable expert witness fees and reasonable attorney fees.
(f)
Award punitive damages as provided in ORS 31.730.
(3)
Except as provided in subsection (4) of this section, in any action brought by
a nursing staff under subsection (1) of this section, if the court finds that
the nursing staff had no objectively reasonable basis for asserting the claim,
the court may award costs, expert witness fees and reasonable attorney fees to
the hospital.
(4)
A nursing staff may not be assessed costs or fees under subsection (3) of this
section if, upon exercising reasonable and diligent efforts after filing the
action, the nursing staff moves to dismiss the action against the hospital
after determining that no issue of law or fact exists that supports the action
against the hospital. [2001 c.609 §11]
Note: See
note under 441.160.
441.178 Unlawful employment practices;
civil action for retaliation. (1) A
hospital that takes any retaliatory action described in ORS 441.174 against a
nursing staff commits an unlawful employment practice.
(2)
A nursing staff claiming to be aggrieved by an alleged violation of ORS 441.174
may file a complaint with the Commissioner of the Bureau of Labor and
Industries in the manner provided by ORS 659A.820. Except for the provisions of
ORS 659A.870, 659A.875, 659A.880 and 659A.885, violation of ORS 441.174 is
subject to enforcement under ORS chapter 659A.
(3)
Except as provided in subsection (4) of this section, a civil action under ORS
441.176 must be commenced within one year after the occurrence of the unlawful
employment practice unless a complaint has been timely filed under ORS
659A.820.
(4)
The nursing staff who has filed a complaint under ORS 659A.820 must commence a
civil action under ORS 441.176 within 90 days after a 90-day notice is mailed
to the nursing staff under this section.
(5)
The commissioner shall issue a 90-day notice to the nursing staff:
(a)
If the commissioner dismisses the complaint within one year after the filing of
the complaint and the dismissal is for any reason other than the fact that a
civil action has been filed.
(b)
On or before the one-year anniversary of the filing of the complaint unless a
90-day notice has previously been issued under paragraph (a) of this subsection
or the matter has been resolved by the execution of a settlement agreement.
(6)
A 90-day notice under this section must be in writing and must notify the
nursing staff that a civil action against the hospital under ORS 441.176 may be
filed within 90 days after the date of mailing of the 90-day notice and that
any right to bring a civil action against the hospital under ORS 441.176 will
be lost if the action is not commenced within 90 days after the date of mailing
of the 90-day notice.
(7)
The remedies under this section and ORS 441.176 are supplemental and not
mutually exclusive. [2001 c.609 §12; 2001 c.609 §12a]
Note: See
note under 441.160.
441.180 Hospital posting of notice.
(1) A hospital shall post a notice summarizing the provisions of ORS 441.162,
441.166, 441.168, 441.174, 441.176, 441.178 and 441.192 in a conspicuous place
on the premises of the hospital. The notice must be posted where notices to
employees and applicants for employment are customarily displayed.
(2)
Any hospital that willfully violates this section is subject to a civil penalty
not to exceed $500. Civil penalties under this section shall be imposed by the
Oregon Health Authority in the manner provided by ORS 183.745. [2001 c.609 §13;
2009 c.595 §736]
Note: See
note under 441.160.
441.182 Rights, privileges or remedies of
nursing staff. (1) Except as provided in subsection
(2) of this section, nothing in ORS 441.176 and 441.178 shall be deemed to
diminish any rights, privileges or remedies of a nursing staff under federal or
state law or regulation or under any collective bargaining agreement or
employment contract.
(2)
ORS 441.176 and 441.178 provide the only remedies under state law for a nursing
staff for an alleged violation of ORS 441.174 committed by a hospital. [2001
c.609 §14]
Note: See
note under 441.160.
441.192 Notice of employment outside of
hospital. (1) A hospital, as defined in ORS
441.172, may require a registered nurse who is receiving full employment
benefits from the hospital to provide notice of any outside employment that may
reasonably impede the ability of the nurse to fulfill the nurse’s obligation to
the hospital in providing nursing services to patients under the hospital’s
care.
(2)
If a hospital determines that the outside employment causes a risk to patients
receiving services in the hospital, the hospital may require the nurse to
discontinue the outside employment.
(3)
A hospital may not unreasonably restrict the outside employment of nurses and
may restrict outside employment only if the hospital provides in writing to the
nurse an explanation of the hospital’s documentation that the outside
employment creates a risk to patients in the hospital. A nurse who does not
discontinue outside employment if required by the hospital may be disciplined
or terminated from employment by the hospital.
(4)
A nurse who does not provide notice as required by a hospital pursuant to this
section may be disciplined or terminated from employment by the hospital if the
failure to provide notice creates a risk to a patient in the hospital. [2001
c.609 §18]
Note: See
note under 441.160.
441.195 [1957
s.s. c.13 §1; renumbered 440.305]
441.200 [1951
s.s. c.13 §2; renumbered 440.310]
441.205
[Amended by 1969 c.343 §1; renumbered 440.315]
441.210
[Amended by 1969 c.343 §2; 1971 c.727 §114; renumbered 440.320]
441.215
[Repealed by 1957 s.s. c.13 §4 (441.216 enacted in lieu of 441.215)]
441.216 [1957
s.s. c.13 §5 (enacted in lieu of 441.215); 1969 c.343 §3; repealed by 1971
c.727 §203]
441.220
[Amended by 1969 c.343 §4; repealed by 1971 c.727 §203]
441.225
[Repealed by 1971 c.727 §203]
441.227 [1965
c.403 §2; 1969 c.343 §5; repealed by 1971 c.727 §203]
441.230
[Amended by 1965 c.403 §3; 1969 c.343 §6; repealed by 1971 c.727 §203]
441.235
[Amended by 1969 c.343 §7; repealed by 1971 c.647 §149 and 1971 c.727 §203]
441.240
[Amended by 1959 c.69 §1; repealed by 1971 c.647 §149]
441.245
[Repealed by 1957 s.s. c.13 §8]
441.250
[Repealed by 1971 c.647 §149]
441.255
[Repealed by 1971 c.647 §149 and 1971 c.727 §203]
441.260
[Amended by 1969 c.343 §8; repealed by 1971 c.727 §203]
441.265
[Repealed by 1971 c.647 §149 and 1971 c.727 §203]
441.270
[Amended by 1969 c.343 §9; repealed by 1971 c.727 §203]
441.275
[Amended by 1969 c.343 §10; repealed by 1971 c.727 §203]
TRUSTEE OR TEMPORARY MANAGER TO ENSURE
COMPLIANCE
WITH CARE RULES
441.277 Definitions for ORS 441.277 to
441.323. As used in ORS 441.277 to 441.323:
(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.
(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 ORS 441.333.
(3)
“Monitor” means an agent of the Director of Human Services designated by the
director to observe the operation of a facility. [1981 c.868 §1; 1987 c.428 §17;
1987 c.548 §5; 2001 c.900 §173; 2003 c.14 §254; 2009 c.539 §20]
441.280
[Amended by 1969 c.343 §11; 1971 c.727 §117; renumbered 440.325]
441.281 Petition for appointment of
trustee; hearing; order. (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 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 licensee for the
facility. Service at the facility to the individual in charge shall be
considered service on the licensee.
(4)
If the court determines at the hearing that grounds exist under ORS 441.286 for
the appointment of a trustee under 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. [1981 c.868 §2; 1985
c.648 §1; 1987 c.428 §18; 2009 c.539 §1]
441.285
[Amended by 1969 c.343 §12; repealed by 1969 c.343 §28; amended by 1969 c.669 §8;
1973 c.796 §61; renumbered 440.330]
441.286 Grounds for appointment of
trustee. 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 or in the immediate future will be in jeopardy and
the finding is based on one or more of the following:
(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)
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 an
inspection or investigation of a complaint, demonstrated by one or more of the
following:
(a)
Physicians’ orders are not being followed correctly.
(b)
Direct patient care is lacking or inadequate to the point that a patient has
suffered or is suffering physical harm.
(c)
The levels of staffing are deficient to the point of causing physical or mental
harm to a patient.
(d)
The department has determined that a physical injury to a patient of a facility
has been caused by other than accidental means and the licensee has not taken
necessary action.
(3)
The licensee is unwilling or unable 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 licensee intends to cease operations and to close the facility and has not
made adequate arrangements for relocation of the patients.
(7)
The monitors are refused access to the facility.
(8)
The licensee agreed to the appointment of a temporary manager under ORS
441.333, but subsequently revoked consent for a temporary manager or is
interfering with the ability of the temporary manager to operate the facility. [1981
c.868 §3; 1985 c.648 §2; 1987 c.428 §19; 2009 c.539 §2]
441.289 Powers and duties of trustee.
A trustee appointed under ORS 441.281:
(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 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 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 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.
(14)
Shall be entitled to take possession of all property or assets belonging to patients
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.
(17)
If the facility ceases to operate and closes during the period of the trust and
any patient is transferred as a result, 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.
(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
Facility Fund established under ORS 441.303 to pay the assessment. [1981 c.868 §4;
1985 c.731 §28; 1987 c.428 §20; 1997 c.249 §140; 2009 c.539 §3]
441.290
[Renumbered 440.335]
441.293 Liability to trustee for goods and
services after notice; effect of nonpayment. (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
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 licensee a sum paid to the trustee. [1981 c.868 §5;
2009 c.539 §4]
441.295
[Amended by 1969 c.343 §§13,27; 1969 c.344 §6; 1971 c.403 §7; renumbered
440.340]
441.296 Liability for rent or contracts.
(1) A trustee is not required to honor any lease, mortgage, secured transaction
or other wholly or partially executory contract entered into by the 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 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 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. [1981 c.868 §6; 2009
c.539 §5]
441.300
[Amended by 1969 c.343 §14; repealed by 1969 c.343 §29 and 1969 c.345 §20]
441.301 Payment of expenses when income
inadequate. 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 ORS 441.333, or if there are insufficient funds on hand to
meet those expenses, the Department of Human Services may draw from the
Facility Fund established in ORS 441.303 to pay those expenses. 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. [1981 c.868 §7;
2009 c.539 §6]
441.303 Establishment of Facility Fund;
fees from facilities in addition to license fee; use of fees.
(1) 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 ORS 441.333 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 fund
the $750,000 described in subsection (3) of this section.
(3)
Whenever the balance of moneys in the fund established under this section
reaches $750,000, the department shall discontinue collecting the facility payment
described in subsection (2) of this section. However, whenever the fund balance
falls below $600,000, the department shall reinstitute the facility payment
described in subsection (2) of this section until the fund is restored to at
least $750,000. 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 meet the
expenses of a trustee appointed under ORS 441.281 or a temporary manager
appointed under ORS 441.333, 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. Interest
earned under this subsection shall be credited to the fund established under
this section.
(5)
The 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 established under this section may serve as surety for the
undertaking. [1981 c.868 §7a; 1983 c.787 §1; 1987 c.428 §21; 1989 c.966 §49;
2003 c.14 §255; 2009 c.539 §7]
441.305
[Amended by 1969 c.343 §15; 1971 c.647 §79; renumbered 440.350]
441.306 Compensation of trustee.
The court shall set the compensation of the trustee. That compensation and the
compensation of the employees shall be considered a necessary expense of the
trust. [1981 c.868 §8]
441.307 [1957
s.s. c.13 §7; 1969 c.343 §16; repealed by 1971 c.647 §149]
441.308
[Repealed by 1957 s.s. c.13 §8]
441.309 Trustee as public employee.
(1) In any action or special proceeding brought against a trustee in the
trustee’s official capacity for acts committed while carrying out the powers
granted and duties imposed by ORS 441.277 to 441.323, the trustee shall be
considered a public employee.
(2)
A trustee may be held liable in a personal capacity only for the trustee’s own
gross negligence, intentional acts or breach of fiduciary duty. [1981 c.868 §9]
441.310
[Amended by 1959 c.616 §1; 1969 c.343 §17; repealed by 1971 c.647 §149]
441.312 License renewal of facility placed
in trust. 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 441.281. The duration of a
license issued under this section is limited to the duration of the trust. [1981
c.868 §10; 2009 c.539 §8]
441.315
[Amended by 1971 c.647 §80; renumbered 440.355]
441.316 Termination of trust; extension;
license revocation. (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 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 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 person
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 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. [1981 c.868 §11;
1987 c.428 §22; 2009 c.539 §9]
441.318 Trustee accounting; deficiencies;
lien. (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 and
file 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 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 licensee after reimbursement to the department of amounts contributed
from the Facility Fund established under ORS 441.303.
(b)
If the funds are insufficient to cover the reasonable expenses of the trust,
the department may move the court for an order requiring the licensee to pay
the deficiency to the department. The motion shall contain the following
statement in bold:
______________________________________________________________________________
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 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
licensee shall be credited to reimburse the 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 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 that originates subsequent to the filing of a petition for
appointment of a trustee under ORS 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. [1981 c.868 §12; 1987
c.428 §23; 2009 c.539 §10]
441.320
[Amended by 1967 c.37 §1; 1967 c.353 §1; 1971 c.89 §1; 1971 c.727 §118;
renumbered 440.360]
441.323 Effect of trust or temporary
management on prior obligations or civil or criminal liabilities.
(1) Nothing in ORS 441.277 to 441.323 is intended:
(a)
To relieve any licensee of the facility placed in trust under ORS 441.281 or
under temporary management pursuant to ORS 441.333 of any civil or criminal
liability incurred, or any duty imposed by law by reason of acts or omissions
of the licensee prior to the appointment of a trustee under ORS 441.281.
(b)
To suspend any obligation of the 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)
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. [1981 c.868 §13; 2009 c.539 §11]
441.325 [Renumbered
440.365]
441.330
[Renumbered 440.370]
441.331 Definition of “facility” for ORS
441.331 to 441.341. As used in ORS 441.331 to
441.341, “facility” has the meaning given that term in ORS 441.277. [2009 c.539
§14]
Note:
441.331 to 441.341 were enacted into law by the Legislative Assembly but were
not added to or made a part of ORS chapter 441 or any series therein by
legislative action. See Preface to Oregon Revised Statutes for further
explanation.
441.333 Appointment of temporary manager.
(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 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. [2009 c.539 §15]
Note: See
note under 441.331.
441.335
[Amended by 1963 c.9 §25; 1969 c.343 §18; renumbered 440.375]
441.336 Accounting by temporary manager;
deficiencies; lien. (1) Within 30 days following the
appointment of a temporary manager under ORS 441.333, 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 ORS 441.333, 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 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. [2009 c.539 §16]
Note: See
note under 441.331.
441.338 Temporary manager as agent of
state agency. 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. [2009 c.539 §17]
Note: See
note under 441.331.
441.340
[Repealed by 1971 c.647 §149]
441.341 Rules.
The Department of Human Services shall adopt rules necessary to implement ORS
441.331 to 441.341, 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. [2009 c.539
§18]
Note: See
note under 441.331.
441.345
[Amended by 1969 c.2 §1; 1969 c.343 §19; 1969 c.694 §7; 1971 c.36 §4;
renumbered 440.380]
441.350
[Amended by 1969 c.343 §20; renumbered 440.385]
441.355
[Renumbered 440.390]
MOVES FROM LONG TERM CARE FACILITIES AND
RESIDENTIAL CARE FACILITIES
441.357 Definitions for ORS 441.357 to
441.367. As used in ORS 441.357 to 441.367:
(1)
“Informed written consent” means voluntary consent in writing given after
receipt and understanding of a written statement of a resident’s rights under
ORS 441.362 (1) to (5).
(2)
“Long term care facility” means any long term care facility as defined in ORS
442.015.
(3)
“Move from a long term care facility” means any move, relocation, discharge or
transfer out of a long term care facility which terminates residence at the
long term care facility.
(4)
“Resident” means an individual receiving care in a long term care facility. [1983
c.269 §1; 1985 c.747 §51]
441.360
[Amended by 1963 c.9 §26; 1969 c.694 §8; renumbered 440.395]
441.362 Notice by Department of Human
Services prior to move or termination; hearing; consent to move; who may
consent. (1) The Department of Human Services
shall not move any resident from a long term care facility or terminate payment
for a resident of a long term care facility without providing 30 days’ written
notice to the resident of the reasons for the move or termination of payment,
the resident’s right to a hearing in accordance with ORS chapter 183 and the
grounds for contesting the move or termination of payment.
(2)
Written notice in accordance with this section shall be provided by the
department in all moves, including situations where the resident requests or
initiates the move.
(3)
The request for hearing must be made to the department within 10 days of the
service or delivery of the written notice to move.
(4)
Notwithstanding subsection (1) of this section, the department may move a
resident less than 30 days after the service of the notice if the resident
gives informed written consent to the move or termination of payment.
(5)
In the event the resident is cognitively impaired, informed written consent can
only be given by a guardian, conservator, person holding a general power of
attorney, person designated by the resident to receive notice of a move or
termination of payment or person who requested the receipt of notice of a move
or termination of payment. [1983 c.269 §2]
441.365
[Amended by 1961 c.396 §1; 1969 c.343 §20a; 1969 c.694 §9; 1971 c.36 §5; 1973
c.284 §3; renumbered 440.400]
441.367 Facility required to give notice
of base rate and policy on nonpayment; rules; notice of changes; civil penalty.
(1) The Department of Human Services by rule shall require long term care
facilities licensed under ORS 441.020 to provide written and oral notice before
or at the time of admission to any resident who does not receive medical
assistance under ORS chapter 414, specifying:
(a)
The base daily rate and any additional expenses reasonably to be expected
including medical supplies, pharmacy and doctor visits and the charges for
incontinency care, feeding and laundry; and
(b)
The long term care facility’s policy regarding residents who become unable to
pay facility charges by reason of exhaustion of all income and resources to or
below the level of eligibility for medical assistance.
(2)
A long term care facility shall give 30 days’ notice in writing to all
residents of changes in additional expenses or charges.
(3)
The Director of Human Services may impose a civil penalty for violation of
subsection (1) of this section under ORS 441.710 (1)(b). [1983 c.269 §§3,4,5;
1987 c.428 §24]
441.370
[Amended by 1969 c.343 §21; renumbered 440.405]
441.373 Admission to or removal from long
term care facility or residential care facility of person convicted of sex
crime. (1) As used in this section:
(a)
“Area agency” has the meaning given that term in ORS 410.040.
(b)
“Long term care facility” has the meaning given that term in ORS 442.015.
(c)
“Move from a long term care facility” has the meaning given that term in ORS
441.357.
(d)
“Residential care facility” has the meaning given that term in ORS 443.400.
(2)
If the Department of Human Services or an area agency knows that a person who
is on probation, parole or post-prison supervision after being convicted of a
sex crime, as defined in ORS 181.594, is applying for admission to a long term
care facility or a residential care facility, the department or area agency
shall notify the facility of the person’s status as a sex offender.
(3)
When a person who is on probation, parole or post-prison supervision after
being convicted of a sex crime, as defined in ORS 181.594, applies for
admission to a long term care facility or a residential care facility, the
person shall notify the facility of the person’s status as a sex offender.
(4)
A long term care facility or a residential care facility may refuse admission
to a person who is on probation, parole or post-prison supervision after being
convicted of a sex crime, as defined in ORS 181.594.
(5)
Notwithstanding ORS 441.362 and 441.605 (4), the department may move a resident
from a long term care facility without providing 30 days’ written notice to the
resident if the department or area agency learns that the resident is on
probation, parole or post-prison supervision after being convicted of a sex
crime, as defined in ORS 181.594. The department shall give the resident a copy
of a written notice containing information about the resident’s right to a
hearing in accordance with ORS chapter 183 and the grounds for contesting the
move at the time the department moves the resident.
(6)(a)
Notwithstanding ORS 441.605 (4), a long term care facility may transfer or
discharge a resident without reasonable advance notice of the transfer or
discharge if:
(A)
The facility was not notified prior to admission of the resident that the
resident is on probation, parole or post-prison supervision after being
convicted of a sex crime, as defined in ORS 181.594;
(B)
The facility learns that the resident is on probation, parole or post-prison
supervision after being convicted of a sex crime, as defined in ORS 181.594;
and
(C)
The resident meets the criteria established by the department by rule for
transfer or discharge under this subsection.
(b)
The facility shall give the resident a copy of a written notice containing
information about the resident’s right to a hearing in accordance with ORS
chapter 183 and the grounds for contesting the move at the time the facility
transfers or discharges the resident.
(7)(a)
A residential care facility may transfer or discharge a resident without
reasonable advance notice of the transfer or discharge if:
(A)
The facility was not notified prior to admission of the resident that the
resident is on probation, parole or post-prison supervision after being
convicted of a sex crime, as defined in ORS 181.594;
(B)
The facility learns that the resident is on probation, parole or post-prison
supervision after being convicted of a sex crime, as defined in ORS 181.594;
and
(C)
The resident meets the criteria established by the department by rule for
transfer or discharge under this subsection.
(b)
The facility shall give the resident a copy of a written notice containing
information about the resident’s right to a hearing in accordance with ORS
chapter 183 and the grounds for contesting the move at the time the facility
transfers or discharges the resident.
(8)
If a resident requests a hearing under subsection (5), (6) or (7) of this
section, the hearing must be held within five business days of the move,
transfer or discharge of the resident.
(9)
The department shall establish the criteria required by subsections (6)(a)(C)
and (7)(a)(C) of this section so that application of the criteria results in
the identification of only those persons who present a current risk of harm to
another person within the facility. [2005 c.671 §13]
Note:
441.373 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 441 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
441.375
[Amended by 1973 c.284 §4; renumbered 440.410]
441.380
[Amended by 1969 c.343 §22; repealed by 1971 c.727 §203]
441.385
[Amended by 1969 c.343 §23; repealed by 1971 c.727 §203]
441.390
[Amended by 1969 c.343 §24; repealed by 1971 c.727 §203]
441.395
[Subsection (2) enacted as 1957 c.584 §1; repealed by 1969 c.343 §30]
441.400
[Amended by 1969 c.343 §25; repealed by 1971 c.727 §203]
441.405
[Amended by 1969 c.343 §26; repealed by 1971 c.727 §203]
441.410
[Repealed by 1971 c.727 §203]
441.415 [1973
c.837 §2; 1977 c.751 §40; renumbered 442.400]
441.420 [1973
c.837 §1; 1977 c.751 §41; renumbered 442.405]
441.425 [1973
c.837 §3; repealed by 1977 c.751 §57]
441.430 [1973
c.837 §4; repealed by 1977 c.751 §57]
441.435 [1973
c.837 §6; 1977 c.751 §42; renumbered 442.420]
441.440 [1973
c.837 §7; renumbered 442.425]
441.445 [1973
c.837 §8; renumbered 442.430]
441.460 [1973
c.837 §9; 1977 c.751 §43; renumbered 442.435]
441.465 [1973
c.837 §10; renumbered 442.440]
441.470 [1973
c.837 §11; repealed by 1977 c.751 §57]
441.475 [1973
c.837 §5; repealed by 1977 c.751 §57]
441.480 [1973
c.837 §12; renumbered 442.445]
441.505
[Subsection (2) enacted as 1957 c.584 §2; 1967 c.498 §5; renumbered 440.505]
441.510
[Renumbered 441.810]
441.515 [1971
c.166 §1; renumbered 441.815]
FINANCING OF HEALTH CARE FACILITIES
CONSTRUCTION
441.525 Definitions for ORS 441.525 to
441.595. As used in ORS 441.525 to 441.595,
unless the context requires otherwise:
(1)
“Adult congregate living facility” means any institution, building or
buildings, residential facility for elderly persons and persons with disabilities,
or other place, operated as a nonprofit corporation which undertakes through
its ownership or management to provide housing, meals and the availability of
other supportive services.
(2)
“Authority” means any public authority organized or existing pursuant to ORS
441.525 to 441.595.
(3)
“Governing body” means the county court, board of county commissioners, council
or other legislative body of any municipality.
(4)
“Hospital facility” means any structure, system, machinery, equipment or other
real or personal property useful for or incidental to inpatient or outpatient
care or administration, service or support for such care or any combination
thereof which is provided by a political subdivision of this state or any
private nonprofit corporation, which is operating or proposes to operate an
adult congregate living facility, or a health care facility as defined by ORS
442.015.
(5)
“Municipality” means any health district, city or county and further means any
municipal corporation resulting from a city-county or city consolidation or a
merger of cities. [1973 c.153 §2; 1981 c.161 §1; 1983 c.740 §157; 1989 c.224 §94;
2007 c.70 §241]
441.530 Policy.
In order to provide the people of Oregon with access to adequate medical care
and hospital facilities, the Legislative Assembly finds that it is necessary
and desirable to authorize the creation in the several counties and cities of
public authorities having the power to acquire, own, lease, sell and otherwise
dispose of hospital facilities, and to authorize municipalities which create
authorities to utilize those authorities to issue bonds and other obligations
on behalf of such municipalities in order that the municipalities may provide
hospital facilities. [1973 c.153 §1; 1977 c.201 §2]
441.532 Municipalities authorized to
create authority; issuance of obligations; conditions; purpose of authority.
Only a municipality may create an authority. Such a municipality may utilize an
authority to issue obligations on behalf of the municipality in order to provide
hospital facilities for the people of the municipality. No authority shall
issue obligations on behalf of more than one municipality. An authority shall
not be created or continued in existence for any purpose other than to provide
hospital facilities as provided in ORS 441.525 to 441.595. [1977 c.201 §3]
441.535 Procedure to create public
authority. (1) A governing body may upon its own
motion, and shall upon the written request of any three or more natural
persons, consider whether it is advisable to create a public authority for the
purpose of providing hospital facilities.
(2)
If the governing body, after public hearing according to its rules, determines
that it is wise and desirable to create in a public authority the power and
duties set forth in ORS 441.525 to 441.595, it shall by ordinance or resolution
establish such an authority. The ordinance or resolution shall set forth:
(a)
The name of the authority, which shall be “The Hospital Facility Authority of
(Municipality), Oregon” or other similar distinctive name.
(b)
The number of directors of the authority, which shall not be less than five nor
more than 11.
(c)
The names of the initial directors and their terms of service, which shall not
exceed six years. At least one director shall also be a member of the governing
body. Such director shall serve only so long as the director is a member of the
governing body and, in any event, no longer than six years.
(d)
Such other provisions as may be appropriate and not inconsistent with ORS 441.525
to 441.595 or the laws of Oregon.
(3)
Upon the adoption of such an ordinance or resolution, the authority shall be
deemed established as a municipal corporation of this state and as a body
corporate and politic exercising public powers.
(4)
An authority so organized shall have all the powers and duties contained in ORS
441.525 to 441.595. The governing body, at its sole discretion and at any time,
may alter or change the structure, organization, programs or activities of the
authority, subject to any limitations imposed by law on the impairment of
contracts. The governing body may dissolve the authority at any time, provided
the authority has no bonds or other obligations outstanding. [1973 c.153 §3;
1977 c.201 §4]
441.540 Board of directors; rules; conflict
of interest; quorum; personnel. (1) An
authority shall be managed and controlled by a board of directors, who shall be
appointed by the governing body. The directors may be removed for cause or at
the will of the governing body. The directors shall serve without compensation.
However, the authority may reimburse the directors for their expenses incurred
in the performance of their duties.
(2)
The board of directors shall adopt and may amend rules for calling and
conducting its meetings and carrying out its business and may adopt an official
seal. All decisions of the board shall be by motion or resolution and shall be
recorded in the board’s minute book which shall be a public record. A majority
of the board shall constitute a quorum for the transaction of business and a
majority thereof shall be sufficient for the passage of any such motion or
resolution.
(3)
The board may employ such employees and agents as it deems appropriate and
provide for their compensation.
(4)
Notwithstanding the exception for pecuniary benefit or detriment described in
ORS 244.020 (12)(c), a director is a public official subject to the
requirements of ORS chapter 244 based on an actual conflict of interest or a
potential conflict of interest arising out of the director’s relationship with
a nonprofit corporation that is tax-exempt under section 501(c) of the Internal
Revenue Code, including employment with the nonprofit corporation or a
relationship with a foundation that provides assistance to the nonprofit
corporation. [1973 c.153 §4; 1977 c.201 §5; 2007 c.813 §1; 2009 c.68 §20]
441.545 Authority may not levy taxes.
An authority shall not have the right or power to levy taxes or to operate a
hospital facility. [1973 c.153 §5]
441.550 General powers.
Except as otherwise provided in ORS 441.545, an authority shall have all powers
necessary to accomplish the purpose of providing hospital facilities for the
people of Oregon, including without limitation the power:
(1)
To sue and be sued in its own name.
(2)
To acquire by purchase, construction, exchange, gift, lease, or otherwise, and
to improve, extend, maintain, equip and furnish hospital facilities, which
hospital facilities may be either within or without the corporate limits of the
municipality by which the authority is created.
(3)
To lease such hospital facilities to any one or more political subdivisions of
this state or any private nonprofit corporations which are operating or propose
to operate an inpatient care facility subject to the licensing and supervision requirements
of ORS 441.015 to 441.087, 441.525 to 441.595, 441.815, 441.820, 441.990,
442.342, 442.344 and 442.400 to 442.463 upon such terms and conditions as the
board deems appropriate, to charge and collect rents and to terminate any such
lease upon default of the lessee.
(4)
To enter into options and agreements for the renewal or extension of such
leases of hospital facilities or for the conveyance of such hospital
facilities.
(5)
To sell, exchange, donate and convey any or all of its hospital facilities or
other assets.
(6)
To borrow money and to issue notes and revenue bonds for the purpose of
carrying out its powers.
(7)
To mortgage and pledge its assets, or any portion thereof, whether then owned
or thereafter acquired, to pledge the revenues and receipts from such assets,
to acquire, hold, and dispose of mortgages and other similar documents relating
to hospital facilities, and to arrange and provide for guarantee and other
security agreements therefor.
(8)
To loan money for the construction of and improvements to hospital facilities.
(9)
To enter into contracts, leases and other undertakings in its own name.
(10)
To adopt and amend ordinances and resolutions. [1973 c.153 §6; 1983 c.413 §1]
441.555 Issuance of revenue obligations;
nature of obligation; refunding. (1) To
accomplish its purposes, an authority shall have the power to issue revenue
obligations payable from the revenues derived by it from repayment of loans or
from its ownership or sale of any one or more hospital facilities. The issuance
of revenue obligations is governed by the provisions of subsections (2) to (8)
of this section, and is not subject to the prior approval of the electors of
the municipality.
(2)
The authority shall issue revenue obligations only by bond resolution duly
adopted by its board of directors. The bond resolution shall specify the public
purposes for which the proceeds of the revenue obligations shall be expended,
declare the estimated cost of carrying out such purposes, contain such
covenants, and provide for the issuance and sale of revenue obligations in such
form and amount as the directors determine. In declaring such cost, the
directors may include the funds necessary for working capital during
construction, reserves, interest during construction, the payment of
organizational, planning, financing and legal expenses, the repayment of
advances and the start-up costs. The bond resolution may provide that hospital
facilities subsequently acquired or constructed by the authority shall be
deemed betterments or additions to, or extensions of, the specified hospital
facility, whether or not physically connected.
(3)
The bond resolution shall provide for the establishment of one or more special
funds, and such funds may be under the control of the board or one or more
trustees. The bond resolution shall obligate the authority to deposit and
expend the proceeds of the revenue obligations only into and from such fund or
funds, and to set aside and pay into such fund or funds any fixed proportion or
fixed amount of the revenues derived by it from any or all of its hospital
facilities or other corporate activities, as the board finds in the best
interest of the authority and the payment of its obligations. The authority may
issue and sell revenue obligations payable as to interest and principal only
out of such fund or funds.
(4)
Any revenue obligations issued against any fund or funds provided for in
subsection (3) of this section shall be a valid claim of the holder thereof
only as against such special fund or funds, the proportion or amount of the
revenues pledged to such fund or funds and such assets as the authority may
have pledged. Each such revenue obligation shall state on its face that it is
payable from a special fund or funds, naming the fund or funds and the
resolution creating it or them.
(5)
Any pledge of revenues or other moneys or obligations or assets made by an
authority shall be valid and binding from the time that the pledge is made
against any parties having subsequent claims of any kind in tort, contract, or
otherwise against an authority, irrespective of whether such parties have
actual notice thereof. The pledge shall be noted in the authority’s minute book
which shall be constructive notice thereof to all parties and neither the
resolution nor other instrument by which a pledge is created need be otherwise
recorded, nor shall the filing of any financing statement under the Uniform
Commercial Code be required to perfect such pledge. Revenues or other moneys or
obligations or assets so pledged and later received by an authority shall
immediately be subject to the lien of the pledge without any physical delivery
or further act.
(6)
The revenue obligations issued under the provisions of subsections (1) to (5)
of this section shall bear such date or dates, mature at such time or times, be
in such denominations, be in such form, either coupon or registered or both,
carry such registration privileges, be made transferable, exchangeable and
interchangeable, be payable in such medium, at such place or places, contain
such covenants, and be subject to such terms of redemption as the board of
directors shall declare in the bond resolution.
(7)
Notwithstanding any other provision of law, the revenue obligations issued by
an authority may be sold by the board of directors upon such terms and
conditions and at such rate or rates of interest and for such price or prices
as it may deem most advantageous to the authority, with or without public
bidding. The authority may make contracts for future sale from time to time of
revenue obligations by which the contract purchasers shall be committed to the
prices, terms and conditions stated in such contract, and the board of
directors may pay such consideration as it deems proper for such commitments.
(8)
The board of directors may provide by resolution for the issuance of funding
and refunding revenue obligations in order to refund, convert, purchase or
restructure any one or more series, or portion of a series, of outstanding
revenue obligations at such time or times as it may determine. Such refunding
revenue obligations may be sold or exchanged at par or otherwise as the board
of directors determines is in the best interest of the authority.
(9)
All revenue obligations issued pursuant to this section shall be legal
securities that may be used by any insured institution or trust company, as
those terms are defined in ORS 706.008, for deposit with the State Treasurer or
a county treasurer or city treasurer, as security for deposits in lieu of a
surety bond under any law relating to deposits of public moneys and shall
constitute legal investments for public bodies, trustees and other fiduciaries,
banks, savings and loan associations, and insurance companies. All such revenue
obligations and all coupons appertaining thereto shall be negotiable
instruments within the meaning of and for all purposes of the law of this
state. [1973 c.153 §7; 1983 c.413 §2; 1997 c.631 §471; 2011 c.256 §4]
441.560 Borrowing; bond anticipation
notes. An authority may borrow from banks or other
lenders such sums on such terms as the board of directors deems necessary or
advisable. An authority may also issue, sell and assume bond anticipation notes
or their equivalent, which shall bear such date or dates, mature at such time
or times, be in such denominations and in such form, be payable in such medium,
at such place or places, and be subject to such terms of redemption, as the
board deems necessary or advisable. [1973 c.153 §8]
441.565 Obligations of authority not obligations
of municipality. The revenue bonds and other
obligations of an authority shall not be a general obligation of the
municipality nor a charge upon the tax revenues of the municipality. [1973
c.153 §9]
441.570 Payment of principal and interest.
The board of directors shall establish rentals, selling prices, and other
charges at least adequate to pay the principal of and interest on the
obligations of the authority as the same become due, including payments to any
special fund or funds, together with the financing and other costs of the
authority. [1973 c.153 §10]
441.575 Authorities may act jointly.
All powers and responsibilities provided in ORS 441.525 to 441.595 may be
exercised and discharged by two or more authorities acting jointly to
effectuate the purposes of ORS 441.525 to 441.595. [1973 c.153 §11]
441.580 Authority as public body; tax
status of assets, income and bonds. An authority
is hereby declared to be a public body performing a public function.
Accordingly, an authority, all assets at any time owned by it, the income
therefrom, and all bonds issued by an authority, together with the coupons
applicable thereto, and the income therefrom, shall be exempt from all taxation
in the State of Oregon; provided, however, that real and personal property
owned by the authority and leased to a third party shall be subject to property
taxation if such property would be subject to taxation if owned by the lessee
thereof. All bonds issued by an authority shall be deemed to be securities
issued by a political subdivision of the State of Oregon. [1973 c.153 §12]
441.585 Disposition of excess earnings;
disposition of assets on dissolution. The earnings
of the authority in excess of the amount required for the retirement of
indebtedness or the accomplishment of the purposes stated in ORS 441.525 to
441.595 shall not inure to the benefit of any person or body other than the
municipality creating the authority. Upon dissolution of an authority, any
assets remaining after provision for payment of the obligations and expenses of
the authority shall become the assets of the municipality. [1973 c.153 §13;
1977 c.201 §6]
441.590 Authority granted by ORS 441.525
to 441.595. ORS 441.525 to 441.595 are complete
authority for the organization of authorities and for the issuance and sale of
revenue bonds and refunding revenue bonds. Any restrictions, limitations,
conditions or procedures provided by other statutes, including but not limited
to the provisions of ORS chapter 198 and ORS 440.305 to 440.410, do not apply
to the organization of authorities and the issuance and sale of revenue bonds
pursuant to ORS 441.525 to 441.595. However, nothing contained in ORS 441.525
to 441.595 shall be construed as a restriction or limitation upon any powers
which an authority might otherwise have under any law of this state or the
charter of any municipality. [1973 c.153 §14; 2005 c.443 §25]
441.595 Construction of ORS 441.525 to
441.595. ORS 441.525 to 441.595 shall be
liberally construed to effect its purposes. In the event that any portion of ORS
441.525 to 441.595 is declared invalid or otherwise unenforceable by a court of
record, the remaining provisions of ORS 441.525 to 441.595 shall nevertheless
remain in full force and effect. [1973 c.153 §15]
LONG TERM CARE FACILITIES
(Nursing Home Patients’ Bill of Rights)
441.600 Definitions for ORS 441.600 to
441.625. As used in ORS 441.600 to 441.625
unless the context requires otherwise:
(1)
“Department” means the Department of Human Services.
(2)
“Facility” means a long term care facility as defined in ORS 442.015.
(3)
“Legal representative” means attorney at law, person holding a general power of
attorney, guardian, conservator or any person appointed by a court to manage
the personal or financial affairs of a resident or person or agency legally
responsible for the welfare or support of a resident.
(4)
“Person” means an individual and every form of organization, whether
incorporated or unincorporated, including partnership, corporation, trust,
association or administrative agency or political subdivision of this state.
(5)
“Resident” means an individual under care in a facility. [1979 c.261 §2; 1987
c.428 §25]
441.605 Legislative declaration of rights
intended for residents. It is the intent of the
Legislative Assembly that facilities guarantee at a minimum that each resident
has the right to be:
(1)
Fully informed of all resident rights and all facility rules governing resident
conduct and responsibilities.
(2)
Fully informed which services are available and of any additional charges not covered
by the daily rates or by Medicare or Medicaid.
(3)
Informed by a physician of the medical condition of the resident unless
medically contraindicated in the medical record, and given the opportunity to
participate in planning medical treatment and to refuse experimental research.
(4)
Transferred or discharged only for medical reasons, or for the welfare of the
resident or of other residents of the facility, or for nonpayment and to be
given reasonable advance notice to insure orderly transfer or discharge.
(5)
Encouraged and assisted while in the facility to exercise rights as a citizen,
and to voice grievances and suggest changes in policies and services to either
staff or outside representatives without fear of restraint, interference,
coercion, discrimination or reprisal.
(6)
Allowed either to manage personal finances or be given a quarterly report of
account if the facility has been delegated in writing to carry out this
responsibility.
(7)
Free from mental and physical abuse and assured that no chemical or physical
restraints will be used except on order of a physician.
(8)
Assured that medical and personal records are kept confidential and unless the
resident transferred, or examination of the records is required by the third
party payment contractor, are not released outside the facility. However,
nothing in this subsection is intended to prevent a resident from authorizing
access to the resident’s medical and personal records by another person.
(9)
Treated with respect and dignity and assured complete privacy during treatment
and when receiving personal care.
(10)
Assured that the resident will not be required to perform services for the
facility that are not for therapeutic purposes as identified in the plan of
care for the resident.
(11)
Allowed to associate and communicate privately with persons of the resident’s
choice and send and receive personal mail unopened unless medically
contraindicated by the attending physician in the medical record of the
resident.
(12)
Allowed to participate in activities of social, religious and community groups
at the discretion of the resident unless medically contraindicated.
(13)
Able to keep and use personal clothing and possessions as space permits unless
to do so infringes on other residents’ rights and unless medically
contraindicated and upon the resident’s request and the facility management’s
consent have access to a private locker, chest or chest drawer that is provided
by the resident or the facility that is large enough to accommodate jewelry and
small personal property and that can be locked by the resident although both
the resident and the facility management may have keys.
(14)
Provided, if married, with privacy for visits by the resident’s spouse. If both
spouses are residents in the facility, they are permitted to share a room.
(15)
Not required to sign a contract or waiver that waives the resident’s right to
collect payment for lost or stolen articles. [1979 c.261 §4; 1981 c.326 §1;
1987 c.397 §1]
441.610 Nursing home patients’ bill of
rights; rules. (1) The Department of Human Services
shall adopt a nursing home patients’ bill of rights consistent with the
principles set forth in ORS 441.605. The rules shall be applicable to all
residents and as far as practicable shall conform to any federal nursing home
patients’ bill of rights.
(2)
The department shall periodically review the rules to assure that they meet the
principles set forth in ORS 441.605 and that they are in conformity with
federal standards but in no case shall the rules be less protective than
required by ORS 441.605.
(3)
The department shall be guided by federal interpretative standards in its
enforcement of the nursing home patients’ bill of rights. [1979 c.261 §5; 1987
c.397 §2]
441.612 Additional rights; rules.
(1) The Department of Human Services shall adopt a bill of rights for residents
and patients of long term care facilities, as defined in ORS 442.015. The rules
shall be applicable to all residents and patients.
(2)
The rights adopted by the department pursuant to subsection (1) of this section
shall be in addition to those rights provided in, or by rule adopted pursuant
to, ORS 441.605 and 441.610.
(3)
The following rights shall be included in the bill of rights adopted by the
department pursuant to subsection (1) of this section:
(a)
A resident or patient of a long term care facility shall have the right to
receive care from facility staff trained to provide care that is specific to
the resident’s or patient’s disease or medical condition; and
(b)
A resident or patient of a long term care facility shall have the right to
receive a modified or special diet that meets the specific requirements of the
resident’s or patient’s disease or medical condition. [2007 c.556 §2]
Note:
441.612 was added to and made a part of ORS chapter 441 by legislative action
but was not added to any smaller series therein. See Preface to Oregon Revised
Statutes for further explanation.
441.615 Powers and responsibilities of
department; rules. In the administration of ORS
441.600 to 441.625, 441.710 and 441.715, the Department of Human Services shall
have the following powers and responsibilities:
(1)
To inspect any facility and the records of any facility to insure compliance
with ORS 441.600 to 441.625, 441.710 and 441.715.
(2)
To adopt rules in accordance with ORS chapter 183, including but not limited to
procedures for investigations and administrative hearings.
(3)
To file complaints and initiate proceedings for the enforcement of ORS 441.600
to 441.625, 441.710 and 441.715 or of rules adopted under ORS 441.600 to
441.625, 441.710 and 441.715.
(4)
To issue subpoenas. [1979 c.261 §3]
441.620 Disclosure of business information
required. Each facility shall disclose to the
resident in writing its legal name and business address, and the name and
business address of the administrator of the facility, at the time of admission
of a resident. Information required to be disclosed by this section shall be
kept current. [1979 c.261 §6]
(Enforcement of Nursing Home Laws)
441.623 [1987
c.428 §1; repealed by 2001 c.900 §261]
441.624 Purpose.
(1) ORS 124.050, 124.080, 410.190, 441.020 to 441.057, 441.060, 441.061,
441.067, 441.073, 441.087, 441.277 to 441.289, 441.303, 441.316, 441.318,
441.331 to 441.341, 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 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. [1987 c.428 §1a; 2001 c.900 §229; 2009 c.539 §12; 2009
c.792 §39]
Note:
441.624 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 441 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
441.625 Retaliation against resident exercising
rights prohibited. No facility, or any person
subject to the supervision, direction or control of a facility, shall retaliate
against a resident by increasing charges, decreasing services, rights or
privileges, or threatening to increase charges or decrease services, rights or
privileges, by taking or threatening any action to coerce or compel the
resident to leave the facility, or by abusing or threatening to harass or to
abuse a resident in any manner, after the resident or the resident’s legal
representative has engaged in exercising rights given under ORS 441.605 or
under rules of the Department of Human Services under ORS 441.610. [1979 c.261 §7]
(Resident Abuse)
441.630 Definitions for ORS 441.630 to
441.680 and 441.995. As used in ORS 441.630 to
441.680 and 441.995:
(1)
“Abuse” means:
(a)
Any physical injury to a resident of a long term care facility which has been
caused by other than accidental means.
(b)
Failure to provide basic care or services, which failure results in physical
harm or unreasonable discomfort or serious loss of human dignity.
(c)
Sexual contact with a resident caused by an employee, agent or other resident
of a long term care facility by force, threat, duress or coercion.
(d)
Illegal or improper use of a resident’s resources for the personal profit or
gain of another person.
(e)
Verbal or mental abuse as prohibited by federal law.
(f)
Corporal punishment.
(g)
Involuntary seclusion for convenience or discipline.
(2)
“Abuse complaint” means any oral or written communication to the department,
one of its agents or a law enforcement agency alleging abuse.
(3)
“Department” means the Department of Human Services or a designee of the
department.
(4)
“Facility” means a long term care facility, as defined in ORS 442.015.
(5)
“Law enforcement agency” means:
(a)
Any city or municipal police department.
(b)
A police department established by a university under ORS 352.383.
(c)
Any county sheriff’s office.
(d)
The Oregon State Police.
(e)
Any district attorney.
(6)
“Public or private official” means:
(a)
Physician, including any intern or resident.
(b)
Licensed practical nurse or registered nurse.
(c)
Employee of the Department of Human Services, a community developmental
disabilities program or a long term care facility or person who contracts to
provide services to a long term care facility.
(d)
Employee of the Oregon Health Authority, county health department or community
mental health program.
(e)
Peace officer.
(f)
Member of the clergy.
(g)
Regulated social worker.
(h)
Physical, speech and occupational therapists.
(i)
Legal counsel for a resident or guardian or family member of the resident. [1979
c.770 §1; 1981 c.470 §7; 1981 c.784 §22; 1987 c.428 §26; 1989 c.721 §53; 1993
c.759 §1; 2001 c.104 §180; 2009 c.442 §41; 2009 c.595 §737; 2011 c.506 §42]
441.635 Legislative finding.
The Legislative Assembly finds that for the purpose of preventing abuse,
safeguarding and enhancing the welfare of residents and assuring the dignity
and care to which residents are entitled, it is necessary and in the public
interest to require mandatory reports and investigations of allegedly abused
residents. [1979 c.770 §2; 1993 c.759 §2]
441.637 Rules; submission of rules to
advisory group. (1) The Department of Human
Services shall implement the provisions of ORS 441.630 to 441.680 and 441.995
and shall adopt such rules as are reasonably necessary for the enforcement of
ORS 441.630 to 441.680 and 441.995.
(2)
Prior to proceeding with the procedures for notice prescribed under ORS
183.335, the department shall submit any proposed rules to an advisory group
consisting of representatives of long term care providers, long term care
advocates, relevant licensing boards and the department. The department shall
consider and respond to the comments of the advisory group that pertain to any
proposed rules before the department adopts the rules. [1993 c.759 §10(1),(2)]
Note:
441.637, 441.676, 441.677, 441.678 and 441.679 were added to and made a part of
441.630 to 441.680 by legislative action but were not added to any smaller
series therein. See Preface to Oregon Revised Statutes for further explanation.
441.640 Report of suspected abuse of
resident required. Any public or private official
having reasonable cause to believe that any resident in a long term care
facility, with whom the official comes in contact while acting in an official
capacity, has suffered abuse, or that any person with whom the official comes
in contact while acting in an official capacity has abused a resident in a long
term care facility, shall report or cause a report to be made in the manner
required in ORS 441.645. [1979 c.770 §3; 1993 c.759 §3]
441.645 Oral report to area agency on
aging, department or law enforcement agency. (1) An
oral report shall be made immediately by telephone or otherwise to the local
office of the area agency on aging or of the Department of Human Services or to
a law enforcement agency within the county where the person making the report
is at the time of contact. If known, such reports shall contain the names and
addresses of the resident and any persons responsible for the care of the
resident, the nature and the extent of the abuse, including any evidence of
previous abuse, the explanation given for the abuse and any other information
which the person making the report believes might be helpful in establishing
the cause of the abuse and the identity of the perpetrator.
(2)
When a report is received by the area agency or department, the area agency or
the department may notify the law enforcement agency having jurisdiction within
the county where the report was made. When a report is received by a law
enforcement agency, the agency shall immediately notify the law enforcement
agency having jurisdiction if the receiving agency does not and the local
office of the area agency or the department in the county where the report was
made. [1979 c.770 §4; 1985 c.651 §4; 1993 c.759 §4]
441.650 Investigation of abuse complaint;
initial status report; content; distribution of report; duties of investigator;
investigation report. (1) Upon receipt of the oral or
written report required under ORS 441.640, or of an abuse complaint, the area
agency on aging, the Department of Human Services or the law enforcement agency
shall cause an investigation to be commenced as follows:
(a)
Within two hours, if the complaint alleges that a resident’s health or safety
is in imminent danger or that the resident has recently died, been hospitalized
or been treated in an emergency room; or
(b)
Prior to the end of the next working day, if the complaint alleges that
circumstances exist that could result in abuse and that the circumstances could
place a resident’s health or safety in imminent danger.
(2)
If the law enforcement agency conducting the investigation finds reasonable
cause to believe that abuse has occurred, the law enforcement agency shall
notify in writing the local office of the area agency or the department as
appropriate. Except in cases where the investigation is part of nursing
facility surveyor activity pursuant to federal law, the area agency or the
department shall complete an initial status report within two working days of
the start of the investigation that includes:
(a)
A summary of the complaint that identifies each alleged incident or problem;
(b)
The status of the investigation;
(c)
Whether an abuse complaint was initially filed at the direction of the
administration of the facility;
(d)
A determination of whether protection of the resident is needed and whether the
facility must take action;
(e)
The name and telephone number of the investigator; and
(f)
The projected date that the investigation report will be completed and a
statement that the report will be available upon request after the department
issues a letter of determination.
(3)
The initial status report described in subsection (2) of this section shall be
provided either in person or by mail to the following individuals as soon as
practicable, but no later than two working days after its completion:
(a)
The complainant, unless the complainant waives the requirement;
(b)
If the complaint involves a specific resident, the resident or a person
designated to receive information concerning the resident;
(c)
A representative of the Long Term Care Ombudsman, upon request; and
(d)
The long term care facility.
(4)
The initial status report described in subsection (2) of this section shall be
available for public inspection.
(5)
When copies of the initial status report described in subsection (2) of this
section are made available to individuals listed in subsection (3) of this
section, the names of the resident involved, the complainant and any
individuals interviewed by the investigator shall be deleted from the copies.
(6)
In investigating an abuse complaint, the investigator shall:
(a)
Make an unannounced visit to the facility, except as provided by ORS 441.690,
to determine the nature and cause of the abuse of the resident;
(b)
Interview all available witnesses identified by any source as having personal
knowledge relevant to the abuse complaint, such interviews to be private unless
the witness expressly requests the interview not to be private;
(c)
Make personal inspection of all physical circumstances that are relevant and
material and that are susceptible to objective observation; and
(d)
Write an investigation report that includes:
(A)
The investigator’s personal observations;
(B)
A review of documents and records;
(C)
A summary of all witness statements; and
(D)
A statement of the factual basis for the findings for each incident or problem
alleged in the complaint.
(7)
Within five working days of completion of the investigation and not later than
60 days from completion of the initial status report described in subsection
(2) of this section, the investigator shall provide the department with the
written report required by subsection (6) of this section. The department shall
make the investigation report available upon request after the letter of
determination is complete. When copies of the report are made available, the
names of the resident involved, the complainant and any individuals interviewed
by the investigator shall be deleted from the copies. [1979 c.770 §5; 1987
c.428 §29; 1993 c.759 §5]
441.655 Immunity provided reporter of
abuse. (1) Anyone participating in good faith
in the making of a report pursuant to ORS 441.630 to 441.650 and who has
reasonable grounds for the making thereof, shall have immunity from any
liability, civil or criminal, that might otherwise be incurred or imposed with
respect to the making or content of such report. Any such participant shall have
the same immunity with respect to participating in any judicial proceeding
resulting from such report.
(2)
Anyone who makes a report pursuant to ORS 441.630 to 441.650 shall not be
subjected to any retaliation by any official or employee of a long term care
facility for making a report, including but not limited to restriction of
otherwise lawful access to the facility or to any resident thereof, or, if an
employee, to dismissal or harassment. [1979 c.770 §6]
441.660 Photographing resident; photograph
as record. (1) In carrying out its duties under
ORS 441.650, the law enforcement agency, the Department of Human Services or
the area agency on aging may photograph or cause to have photographed any
resident subject of the investigation for purposes of preserving evidence of
the condition of the resident at the time of the investigation.
(2)
Notwithstanding the provisions of ORS 192.410 to 192.505, photographs taken
under authority of subsection (1) of this section shall not be considered
records. [1979 c.770 §7; 1981 c.470 §6; 1987 c.428 §30; 1993 c.759 §8; 2005
c.268 §1]
441.665 Record of reports; classification
of investigation report. (1) A proper record of reports
under ORS 441.640, 441.645 and 441.676 on residents in long term care
facilities shall be maintained by the Department of Human Services. Each
problem or incident alleged in a report shall be determined to be abuse, other
licensing violation or no violation. Each incident of abuse or other licensing
violation alleged in a report shall be classified as substantiated,
unsubstantiated or unable to substantiate or recorded as under appeal by the
facility.
(2)
All reports shall be cataloged under the name of the long term care facility
associated with the complaint. [1979 c.770 §8; 1987 c.428 §31; 1993 c.759 §9]
441.670 [1979
c.770 §9; repealed by 1981 c.470 §1 (441.671 enacted in lieu of 441.670)]
441.671 Confidentiality of reports; when
available. (1) Notwithstanding the provisions of
ORS 192.410 to 192.505, the names of complainants and residents compiled under
the provisions of ORS 441.640 to 441.660 are confidential and are not
accessible for public inspection. However, the Department of Human Services
shall make the information available to any law enforcement agency, to any
public agency which licenses or certifies long term care facilities or licenses
or certifies the persons practicing the healing arts therein and to the Long
Term Care Ombudsman.
(2)
Except as provided in subsection (1) of this section, the provisions of ORS
192.410 to 192.505 apply to all records and reports compiled under ORS 441.640
to 441.665. [1981 c.470 §2 (enacted in lieu of 441.670); 1993 c.759 §11]
441.675 Certain evidentiary privileges
inapplicable. In the case of abuse of a resident in a
long term care facility, the privileges extended under ORS 40.225 to 40.295
shall not be a ground for excluding evidence regarding the abuse of a resident,
or the cause thereof, in any judicial proceeding resulting from a report made
pursuant to ORS 441.640. [1979 c.770 §10; 1983 c.740 §158; 1993 c.759 §12]
441.676 Investigation of licensing
violations; powers of investigator. (1) For
complaints of licensing violations other than abuse, the Department of Human
Services shall cause an investigation to be completed within 90 days of the
receipt of the complaint.
(2)
Except in cases where the investigation is part of nursing facility surveyor
activity pursuant to federal law, an investigator investigating a complaint
other than a complaint of abuse shall:
(a)
Make an unannounced visit to the facility, while complying with ORS 441.690;
(b)
Interview all available witnesses identified by any source as having personal
knowledge relevant to the complaint, such interviews to be private unless the
witness expressly requests the interview not to be private;
(c)
Make personal inspection of all physical circumstances that are relevant and
material and that are susceptible to objective observation; and
(d)
Write an investigation report that includes:
(A)
The investigator’s personal observations;
(B)
A review of documents and records;
(C)
A summary of all witness statements; and
(D)
A statement of the factual basis for the findings for each incident or problem
alleged in the complaint. [1993 c.759 §6]
Note: See
note under 441.637.
441.677 Letter of determination;
determination rules; distribution of letter; notice to nursing assistant; right
to contested case hearing; rules. (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. [1993 c.759 §7; 2009 c.72 §1]
Note: See
note under 441.637.
441.678 Review of finding that nursing
assistant responsible for abuse; name placed in registry.
(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.
(3)
The department shall maintain a nursing assistant registry that contains, at a
minimum, the information required by 42 C.F.R. 483.156. [1993 c.759 §16; 2001
c.900 §174; 2009 c.72 §2]
Note: See
note under 441.637.
441.679 Preemployment inquiries; when
employment prohibited. (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 the person is currently licensed or certified by the board and whether
there has been any disciplinary action against the person or substantiated
abuse findings against a nursing assistant.
(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 has been entered into the
registry maintained under ORS 441.678. [1993 c.759 §15; 2009 c.72 §3]
Note: See
note under 441.637.
441.680 Spiritual healing alone not considered
abuse of resident. A resident who in good faith is
under treatment solely by spiritual means through prayer in accordance with the
tenets and practices of a recognized church or religious denomination by a duly
accredited practitioner thereof shall, for this reason alone, not be considered
an abused resident within the meaning of ORS 441.630 to 441.680 and 441.995. [1979
c.770 §11; 1993 c.759 §13]
441.685 Monitors; designation; duties; peer
review of facilities. (1) Upon receipt of a report
under ORS 441.645 to 441.680 or upon receipt of a complaint by a resident or
legal guardian of a resident, or other public or private official, as defined
in ORS 441.630 by the Department of Human Services, the Director of Human
Services may designate monitors who shall observe the activities of the
facility and report to the director. The monitors may be designated without
prior notice to the operator or owner of the facility. The monitors shall
observe the operations of the facility for a period of not to exceed 10 days,
assist the facility by advising it on how to comply with state requirements and
shall submit a written report periodically to the director on the operation and
condition of the facility.
(2)
The monitors shall have access to the facilities to the extent necessary to
carry out their duties. The monitors shall also have access to all records
pertaining to the operation of the facility.
(3)
Upon completion of their investigations, the monitors shall file a final report
with the director and may:
(a)
Find that problems in the facility have been resolved and recommend that
further action by the department is unnecessary;
(b)
Find that the problems in the facility are continuing but the facility owner,
operator or other controlling person can resolve them within a period of not
more than three months, and that during the three-month period the health and
welfare of the residents of the facility are not jeopardized thereby; or
(c)
Find that the problems of the facility have not been resolved and the
department should take steps to obtain compliance with resident care standards
and continue monitoring for an additional period.
(4)
Associations representing long term care facilities may initiate a peer review
process for any facility that is a member of the association and that is the
subject of any complaint filed against it under ORS 441.630 to 441.685, 678.037
and 678.155 or any other provision of law. The report of the peer review
process shall be submitted to the department. The peer review described in this
subsection is in addition to and not in lieu of any other investigation,
observation or report of the monitors otherwise required or authorized by ORS
441.630 to 441.685, 678.037 and 678.155. The association and persons conducting
the peer review process acting in good faith shall not be subject to an action
for civil damages as a result thereof.
(5)
As used in this section:
(a)
“Department” means the Department of Human Services.
(b)
“Director” means the Director of Human Services.
(c)
“Facility” means a long term care facility as defined in ORS 442.015.
(d)
“Monitor” means an agent of the director designated by the director to observe
the operation of a facility. [1979 c.770 §§12,13; 1987 c.428 §32; 1993 c.759 §14;
2001 c.900 §175]
(Investigation of Complaints)
441.690 Complainant may accompany
investigator. Upon the request of any person filing a
complaint to be investigated by the Department of Human Services against a long
term care facility, as defined in ORS 442.015, or against a residential care
facility, as defined in ORS 443.400, the complainant or a designee thereof, or
both, shall be allowed to accompany an investigator to the site of the alleged
violation. [1981 c.241 §1; 1987 c.428 §33; 1987 c.548 §6; 2001 c.900 §176]
441.695 Conduct of investigation.
In investigating all complaints under ORS 441.690, the investigator shall:
(1)
Interview all available witnesses identified by any sources as having personal
knowledge relevant to the complaint;
(2)
Make personal inspection of all physical circumstances that are relevant and
material to the complaint and which are susceptible of objective observation;
(3)
Not decline to interview a witness or consider the testimony of the witness
solely because the witness is neither a health care professional nor an
employee of the facility; and
(4)
Write a report which includes:
(a)
The investigator’s personal observations;
(b)
A review of documents and records;
(c)
A summary of all witness statements; and
(d)
A statement of the basis for the finding. [1981 c.241 §2]
(Drug Supplies for Unscheduled Leaves)
441.697 Prescribed drug supply for
unscheduled therapeutic leave from long term care facility; dispensing of drugs
by registered nurse. (1) When a resident of a long
term care facility has the opportunity for an unscheduled therapeutic leave
that would be precluded by the lack of an available pharmacist to dispense
drugs prescribed by a licensed practitioner, a registered nurse designated by
the facility who agrees to such designation may provide the resident or a
responsible person with up to a 72-hour supply of a prescribed drug or drugs
for use during that leave from the resident’s previously dispensed package of
such drugs.
(2)
The drugs shall only be provided in accordance with protocols developed by the
pharmaceutical services committee of the long term facility and the protocol
shall be available for inspection. These protocols shall include the following:
(a)
Criteria as to what constitutes an unscheduled therapeutic leave requiring the
provision of drugs by the registered nurse or consultant or staff pharmacist;
(b)
Procedures for repackaging and labeling the limited supply of previously
dispensed drugs by the designated registered nurse that comply with all state
and federal laws concerning the packaging and labeling of drugs;
(c)
Provision to assure that none of the medication provided to the resident or
responsible person may be returned to the resident’s previously dispensed
package of such drug or to the facility’s stock; and
(d)
A record-keeping mechanism that provides for the maintenance of a permanent log
that includes the following information:
(A)
The name of the person to whom the drug was provided;
(B)
The drug and quantity provided;
(C)
The date and time that the request for the drug was made;
(D)
The date and time that the drug was provided;
(E)
The name of the registered nurse who provided the drug; and
(F)
The conditions or circumstances that precluded a pharmacist from providing the
drug. [1987 c.205 §1]
Note:
441.697 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 441 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
(Access)
441.700 Access to facilities by persons
providing services. (1) Long term care facilities,
as defined in ORS 442.015, and residential care facilities, as defined in ORS
443.400, subject to ORS 441.605 (11), shall permit individuals and
representatives of community service organizations, including community legal
services programs, whose purpose is rendering service without charge to
residents, to have full and free access to the facility during reasonable
visiting hours to:
(a)
Visit, talk with and make personal, social and legal services available to all
residents.
(b)
Inform residents of their rights and entitlements, and their corresponding
obligations, under federal and state laws by means of distribution of
educational materials and discussion in groups and with individual residents.
(c)
Assist residents in asserting their rights regarding claims for public
assistance, medical assistance and Social Security benefits and other rights.
Assistance may be provided individually, as well as on a group basis.
(d)
Engage in all other methods of assisting, advising and representing residents
so as to extend to them the full enjoyment of their rights.
(2)
A resident retains the right to refuse contact by any individual or group
having access to the facility under this section.
(3)
As used in this section, “full and free access” means access to the fullest
extent possible without undue adverse interference on the operation of the
facility. [1981 c.99 §1; 1987 c.548 §7]
(Complaint File)
441.703 Complaint file; summary;
availability on request. (1) Except as provided in
subsection (2) of this section, the Department of Human Services shall maintain
a listing of all long term care facilities, as defined in ORS 442.015, by name
and address and for each indicating:
(a)
The complaint file number.
(b)
The category of the complaint, whether staffing, food, patient care or other.
(c)
A brief description of the complaint.
(d)
The department’s finding.
(e)
Action taken by the department.
(f)
Fines assessed, if any.
(g)
Fines paid, if any.
(2)
The department shall maintain a separate listing of all complaints it considers
unsupported by findings indicating the information required by subsection
(1)(a) to (d) of this section.
(3)
The information described in subsections (1) and (2) of this section shall be
noted in summary form on annual cover sheets for the file on a particular
facility. The cover sheets shall not contain any of the information made
confidential under ORS 441.671. Copies of the cover sheets shall be made
available to the public at cost on request. Upon such request, the department
shall provide only copies of the cover sheets described in subsection (1) of
this section unless the information described in subsection (2) of this section
is specifically requested.
(4)
The listing maintained pursuant to subsection (1) of this section shall contain
the following notice:
______________________________________________________________________________
NOTICE:
This cover sheet does not contain information on complaints that the Department
of Human Services considers unsupported by findings or on complaints still
under investigation by the department. The department will make information
regarding such complaints available upon request.
______________________________________________________________________________
(5)
The department shall provide a written explanation summarizing the complaint
system with each copy of a cover sheet provided under subsection (3) of this
section. [1981 c.721 §1; 1987 c.428 §34]
441.704 [1983
c.484 §1; repealed by 1985 c.647 §3]
CIVIL PENALTIES
441.705 Definitions for ORS 441.705 to
441.745. As used in ORS 441.705 to 441.745:
(1)
“Direct patient care or feeding” means any care provided directly to or for any
patient related to that patient’s physical, medical and dietary well-being as
defined by rules of:
(a)
The Department of Human Services when the facility is a long term care
facility, as defined in ORS 442.015, or a residential care facility,
residential training facility or residential training home, as those terms are
defined in ORS 443.400; and
(b)
The Oregon Health Authority if the facility is a residential treatment facility
or a residential treatment home, as defined in ORS 443.400.
(2)
“Person” means a licensee of a long term care facility, a residential care
facility, a residential training facility, a residential treatment facility, a
residential training home or a residential treatment home, or an unlicensed
person who the Director of Human Services finds should be licensed to operate a
long term care facility, a residential care facility, a residential training
facility or a residential training home, or an unlicensed person who the
Director of the Oregon Health Authority finds should be licensed to operate a
residential treatment facility or residential treatment home. “Person” does not
mean an employee of a licensee or unlicensed person who the Director of Human
Services or the Director of the Oregon Health Authority finds should be
licensed.
(3)
“Staff to patient ratio” means the number and training of persons providing
direct patient care as defined in rules of the:
(a)
Department if the facility is a long term care facility, a residential care or
residential training facility or a residential training home; or
(b)
Authority if the facility is a residential treatment facility or a residential
treatment home. [1975 c.328 §9; 1977 c.261 §7; 1987 c.428 §35; 2001 c.900 §177;
2003 c.14 §256; 2009 c.595 §738]
Note:
441.705 to 441.745 were enacted into law by the Legislative Assembly but were
not added to or made a part of ORS chapter 441 or any series therein by
legislative action. See Preface to Oregon Revised Statutes for further
explanation.
441.710 Civil penalties; when imposed.
(1) In addition to any other liability or penalty provided by law, the Director
of Human Services may impose a civil penalty on a person for any of the
following:
(a)
Violation of any of the terms or conditions of a license issued under ORS
441.015 to 441.087, 441.525 to 441.595, 441.815, 441.820, 441.990, 442.342,
442.344 and 442.400 to 442.463 for a long term care facility, as defined in ORS
442.015.
(b)
Violation of any rule or general order of the Department of Human Services that
pertains to a long term care facility.
(c)
Violation of any final order of the director that pertains specifically to the
long term care facility owned or operated by the person incurring the penalty.
(d)
Violation of ORS 441.605 or of rules required to be adopted under ORS 441.610.
(e)
Violation of ORS 443.880 or 443.881 if the facility is a residential care
facility, residential training facility or residential training home.
(2)
In addition to any other liability or penalty provided by law, the Director of
the Oregon Health Authority may impose a civil penalty on a person for a
violation of ORS 443.880 or 443.881 if the facility is a residential treatment
facility or a residential treatment home.
(3)
The Director of Human Services may not impose a penalty under subsection (1) of
this section for violations other than those involving direct patient care or
feeding, an adequate staff to patient ratio, sanitation involving direct
patient care or a violation of ORS 441.605 or 443.880 or 443.881 or of the
rules required to be adopted by ORS 441.610 unless a violation is found on two
consecutive surveys of a long term care facility. The Director of Human
Services in every case shall prescribe a reasonable time for elimination of a
violation:
(a)
Not to exceed 30 days after first notice of a violation; or
(b)
In cases where the violation requires more than 30 days to correct, such time
as is specified in a plan of correction found acceptable by the director.
(4)
The Director of the Oregon Health Authority may not impose a penalty under
subsection (2) of this section for violations other than those involving direct
patient care or feeding, an adequate staff to patient ratio, sanitation
involving direct patient care or a violation of ORS 443.880 or 443.881. The
Director of the Oregon Health Authority in every case shall prescribe a
reasonable time for elimination of a violation:
(a)
Not to exceed 30 days after first notice of a violation; or
(b)
In cases where the violation requires more than 30 days to correct, such time
as is specified in a plan of correction found acceptable by the director. [1975
c.328 §1; 1977 c.261 §8; 1979 c.261 §8; 1983 c.740 §159; 1987 c.428 §36; 1991
c.413 §4; 2009 c.595 §739; 2011 c.9 §61]
Note: See
note under 441.705.
441.712 Notice of civil penalty.
(1) Any civil penalty under ORS 441.710 shall be imposed in the manner provided
by ORS 183.745.
(2)
Notwithstanding ORS 183.745, the person to whom the notice is addressed shall
have 10 days from the date of service of the notice in which to make written
application for a hearing before:
(a)
The Director of Human Services if the facility is a long term care facility,
residential care facility, residential training facility or residential
training home; or
(b)
The Director of the Oregon Health Authority if the facility is a residential
treatment facility or residential treatment home. [1977 c.261 §6; 1987 c.428 §37;
1991 c.734 §23; 2003 c.14 §257; 2009 c.595 §740]
Note: See
note under 441.705.
441.715 Objective criteria for civil
penalties; rules. (1)(a) After public hearing, the
Director of Human Services by rule shall adopt objective criteria for establishing
the civil penalty that may be imposed under ORS 441.710 (1) and the Director of
the Oregon Health Authority by rule shall adopt objective criteria for
establishing the civil penalty that may be imposed under ORS 441.710 (2).
However, the civil penalty may not exceed $500 for each violation, except as
otherwise provided in this subsection and ORS 441.995 or as otherwise required
by federal law.
(b)
Notwithstanding the limitations on the civil penalty in paragraph (a) of this
subsection, for any violation involving direct resident care or feeding, an
adequate staff to resident ratio, sanitation involving direct resident care or
a violation of ORS 441.605 or rules required to be adopted under ORS 441.610, a
penalty may be imposed for each day the violation occurs in an amount not to
exceed $500 per day or as otherwise required by federal law.
(c)
If the Department of Human Services 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 long term care facility and if the abuse resulted in the death,
serious injury, rape or sexual abuse of a resident, the department 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 paragraph:
(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.
(2)
The penalties assessed under subsection (1)(a) or (b) of this section may not
exceed $7,500 in the aggregate or as otherwise required by federal law with
respect to a single long term care facility within any 90-day period. [1975
c.328 §2; 1977 c.261 §9; 1979 c.261 §9; 1987 c.428 §38; 1993 c.759 §17; 2009
c.595 §741; 2009 c.828 §85]
Note: See
note under 441.705.
441.720 Remittance or reduction of
penalties. A civil penalty imposed under ORS
441.710 may be remitted or reduced upon such terms and conditions as the
Director of the Oregon Health Authority or the Director of Human Services
considers proper and consistent with the public health and safety. [1975 c.328 §3;
1987 c.428 §39; 2009 c.595 §742]
Note: See
note under 441.705.
441.725 [1975
c.328 §4; 1985 c.648 §3; 1987 c.428 §40; repealed by 1993 c.759 §19]
441.730 [1975
c.328 §5; repealed by 1977 c.261 §11]
441.735 [1975
c.328 §6; 1977 c.261 §10; 1989 c.706 §13; repealed by 1991 c.734 §122]
441.740 Judicial review.
Judicial review of civil penalties imposed under ORS 441.710, shall be as
provided under ORS 183.480, except that the court may, in its discretion,
reduce the amount of the penalty. [1975 c.328 §7]
Note: See
note under 441.705.
441.745 Penalties to Quality Care Fund.
All penalties recovered under ORS 441.710 to 441.740 and 441.995 shall be
deposited in the Quality Care Fund established in ORS 443.001. [1975 c.328 §8;
2009 c.837 §22]
Note: See
note under 441.705.
SUICIDE ATTEMPTS BY MINORS
441.750 Suicide attempts by minors;
referral; report; disclosure of information; limitation of liability.
(1) Any hospital which treats as a patient a person under 18 years of age
because the person has attempted to commit suicide:
(a)
Shall cause that person to be provided with information and referral to
in-patient or out-patient community resources, crisis intervention or other
appropriate intervention by the patient’s attending physician, hospital social
work staff or other appropriate staff.
(b)
Shall report statistical information to the Oregon Health Authority about the
person described in this subsection but is not required to report the name of
the person.
(2)
Any disclosure authorized by this section or any unauthorized disclosure of
information or communications made privileged and confidential by this section
shall not in any way abridge or destroy the confidential or privileged
character thereof except for the purposes for which any authorized disclosure
is made. Any person making a disclosure authorized by this section shall not be
liable therefor, notwithstanding any contrary provisions of law.
(3)
No physician, hospital or hospital employee shall be held criminally or civilly
liable for action pursuant to this section, provided the physician, hospital or
hospital employee acts in good faith on probable cause and without malice. [1987
c.189 §1; 2009 c.595 §743]
Note:
441.750 and 441.755 were enacted into law by the Legislative Assembly but were
not added to or made a part of ORS chapter 441 or any series therein by legislative
action. See Preface to Oregon Revised Statutes for further explanation.
441.755 Report form; contents.
(1) The Oregon Health Authority shall prescribe a form to be used by hospitals
to make the report required by ORS 441.750 (1)(b) and shall prescribe the
frequency of such reports.
(2)
The report form may include the name of the hospital reporting, the date of
birth, race and sex of person described in subsection (1) of this section, the
suicide method used by the person and known prior attempts in the past 12
months.
(3)
The authority shall compile the results from the reports and report the results
to the public. [1987 c.189 §2; 2009 c.595 §744]
Note: See
note under 441.750.
441.810
[Formerly 441.510; repealed by 1979 c.284 §199]
MISCELLANEOUS
441.815 Smoking of tobacco in or near hospital
prohibited; rules. (1) As used in this section, “hospital”
has the meaning given the term in ORS 442.015.
(2)
The administrator or person in charge of a hospital may not permit a person to
smoke tobacco:
(a)
In the hospital; or
(b)
Within 10 feet of a doorway, open window or ventilation intake of the hospital.
(3)
The Director of the Oregon Health Authority may impose a civil penalty of not
more than $500 per day on a person for violation of subsection (2) of this
section. Civil penalties imposed against a person under this subsection may not
exceed $2,000 in any 30-day period. Civil penalties imposed under this
subsection shall be imposed in the manner provided by ORS 183.745.
(4)
The Oregon Health Authority may adopt rules necessary for the administration of
this section. [Formerly 441.515; 1977 c.173 §1; 1983 c.740 §160; 2007 c.602 §8;
2009 c.595 §745]
441.820 Procedure for termination of
physician’s privilege to practice medicine at health care facility; immunity
from damage action for good faith report. (1)
When a health care facility restricts or terminates the privileges of a
physician to practice medicine at that facility, it shall promptly report, in
writing, to the Oregon Medical Board all the facts and circumstances that
resulted in the restriction or termination.
(2)
A health care facility which reports or provides information to the Oregon
Medical Board under this section and which provides information in good faith
shall not be subject to an action for civil damages as a result thereof. [1977
c.448 §7]
441.825 Authority of hospital to require
medical staff to provide professional liability insurance.
(1) A governing body of a hospital licensed under ORS 441.015 to 441.087 may
require all members of its medical staff to:
(a)
Provide evidence of professional medical liability insurance in a reasonable
amount as specified by the hospital governing board;
(b) Post a bond in lieu of evidence of
professional medical liability insurance in a reasonable amount as specified by
the hospital governing board; or
(c) Demonstrate annually financial
responsibility for a reasonable amount as specified by the hospital governing
board.
(2) As used in this section:
(a) “Medical staff” includes those individuals
licensed by this state under ORS chapter 677 and granted privileges to practice
in the hospital by the hospital governing board.
(b) “Professional medical liability
insurance” means casualty insurance against legal liability for death, injury
or disability of a human being arising from any medical, surgical or dental
treatment, omission or operation. [1977 c.449 §1; 1981 c.377 §1]
Note:
441.825 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 441 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
441.827
[1991 c.774 §§1,2; renumbered 676.300 in 2003]
441.840
[1987 c.670 §1; repealed by 1989 c.800 §8]
PENALTIES
441.990
Civil and criminal penalties. (1) Violation
of ORS 441.015 (1) is a Class B 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) commits a Class C
misdemeanor.
(3) The removal of the notice required by
ORS 441.030 (4) 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.
(5) In addition to the penalties under
this section, the Oregon Health Authority, the Department of Human Services or
the Department of Consumer and Business Services may assess civil penalties
against any health care facility or health maintenance organization under ORS
441.030 or for a violation of ORS 441.015 (1). A civil penalty imposed under
this section may not exceed $5,000.
(6) Civil penalties under this section
shall be imposed in the manner provided by ORS 183.745.
(7) Civil penalties recovered under this section
shall be paid into the State Treasury and credited to the General Fund for
general governmental purposes. [Subsection (2) enacted as 1971 c.166 §2;
subsection (3) enacted as 1975 c.294 §4; 1977 c.173 §2; 1977 c.582 §48; 1987
c.428 §41; 1989 c.171 §56; 1999 c.1051 §183; 2001 c.900 §178; 2007 c.602 §9;
2009 c.539 §13; 2009 c.595 §746; 2009 c.792 §62; 2011 c.597 §197]
441.995
Factors considered in determining penalties under ORS 441.630 to 441.680; civil
penalty. (1) In adopting criteria for establishing
the amount of civil penalties for violations of ORS 441.630 to 441.680, the
Department of Human Services shall consider:
(a) Any prior violations of laws or rules
pertaining to facilities;
(b) The financial benefits, if any,
realized by the facility as a result of the violation;
(c) The gravity of the violation,
including the actual or potential threat to the health, safety and well-being
of one or more residents;
(d) The severity of the actual or
potential harm caused by the violation; and
(e) The facility’s past history of
correcting violations and preventing the recurrence of violations.
(2) The department may impose a civil
penalty for abuse in accordance with rules adopted under ORS 441.637 (1).
(3) If the department finds the facility
is responsible for abuse and if the abuse resulted in a resident’s death or
serious injury, the department shall impose a civil penalty of not less than
$500 nor more than $1,000 for each violation, or as otherwise required by
federal law or ORS 441.715 (1)(c), 443.455 or 443.775.
(4) Nothing in ORS 441.637 and this
section is intended to expand, replace or supersede the department’s authority
to impose civil penalties pursuant to ORS 441.710 or 441.715 for violations
that do not constitute abuse.
(5) Facilities assessed civil penalties
under this section are entitled to a contested case hearing under ORS chapter
183. [1993 c.759 §10(3),(4),(5),(6); 2005 c.22 §299; 2009 c.837 §23]
_______________