New DHS AFH Rules
Aging and People with Disabilities Chapter 411:
Oregon's Equal Pay Law
As the year comes to a close and we welcome 2019, adult foster home providers and all Oregon employers need to be in compliance with the Oregon Equal Pay Act of 2017. The law passed in the 2017 legislative session has a mandatory compliance date of January 1, 2019.
The law prohibits wages or other compensation discrimination of the basis of any protected class including race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age.
Employers may pay employees for work of comparable character at different compensation levels if based on specific factors including, but not limited to, seniority, merit, education, training or experience.
Effective January 1, 2019:
Employers should not:
Oregon employers are required by a number of state and federal agencies to display a variety of workplace notices and posters. Typically, these notices must be posted in a conspicuous place, where employees may regularly view them. Employers with more than one work location are generally required to display these posters at each worksite.
Certain posters must also be readily available for job applicants to view. These include the federal Polygraph Protection Act Notice; the federal Family and Medical Leave Act poster; the OR-OSHA Job Safety and Health poster ("It’s the Law"); and the "Equal Employment Opportunity is the Law" poster.
Small Oregon employers (less than 25 employees) need to provide the following postings:
*Information provided by OACHP should not be considered legal advice. To seek legal opinion, guidance or advice please contact an attorney directly.
By Joe Greenman Shareholder, Lane Powell PC
DHS AFH Rules Advisory Committee Meets
On November 9, the Oregon Department of Human Services (DHS) held a rules advisory committee (RAC) meeting in Salem. DHS is currently working with stakeholders, including Adult Foster Home (AFH) owners and operators, to implement federal requirements for Home and Community- Based Services (HCBS). The HCBS Setting Requirements final rule [CMS–2249–F; CMS–2296–F] was released January 10, 2014, by the Centers for Medicare and Medicaid Services (CMS). This rule initially went into effect on March 17, 2014.
CMS developed the HCBS rules in an effort to establish and legally define the qualities of community-based settings that distinguish them from institutional settings (such as nursing facilities and hospitals). The final rule requires that all home and community-based settings meet certain qualifications. These include:
• The setting is integrated in and supports full access to the greater community;
• Is selected by the individual from among setting options;
• Ensures individual rights of privacy, dignity and respect, and freedom from coercion and restraint;
• Optimizes autonomy and independence in making life choices; and
• Facilitates choice regarding services and who provides them.
The final rule also includes additional requirements for provider-owned or controlled homes (such as AFHs) and community-based residential settings. These requirements include:
• The individual has a lease or other legally enforceable agreement providing similar protections;
• The individual has privacy in their unit including lockable doors, choice of roommates and freedom to furnish or decorate the unit;
• The individual controls his/her own schedule including access to food at any time;
• The individual can have visitors at any time; and
• The setting is physically accessible.
Any modification to these additional requirements for provider-owned homes and community-based residential settings must be supported by a specific assessed need and justified in the person-centered service plan. DHS is proposing that effective June 30, 2020 these modifications, individually-based limitations (IBLs) must be supported by a specific assessed need due to a threat to the health and safety of the resident or others. For Medicaid-eligible residents, the person-centered service plan coordinator must authorize the limitation and the individual, or their representative, must consent to the limitation. IBLs must be reviewed at least annually.
The final federal rule includes a transitional process for states to ensure that their waivers and state plans meet the HCBS settings requirements. The rule initially established a five year deadline for CMS to approve state transition plans to effectuate full compliance by the states. This compliance deadline was initially March 17, 2019. It is notable, however, that on May 9, 2017, CMS announced a three-year-extension for states to meet the HCBS settings requirements for settings operating before March 17, 2014. States now have until March 17, 2022 to demonstrate compliance with the final rule.
Despite CMS’s notification of deadline extension, on November 15, 2018, DHS updated its Statewide Transition Plan and posted the amended draft for public comment. This draft version of the Transition Plan includes a reorganization of the information within the plan to make it easier to understand. Additionally, this version addresses questions raised by the public, stakeholders from all three program areas [i.e., DHS Aging and People with Disabilities' (APD), DHS Office of Developmental Disabilities Services' (ODDS), and OHA Health Systems Division's (HSD)], and CMS suggestions for clarification. The draft Transition plan is posted on the DHS website at: https://www.oregon.gov/DHS/SENIORS-DISABILITIES/HCBS/TransitionPlan/Oregon%20Amended%20HCBS%20STP%2011-14-18%20clean%20copy.pdf. Public comments were accepted through December 17, 2018. DHS will submit the revised plan to CMS to request review and approval on December 28, 2018.
In addition to working on HCBS rule implementation, DHS is proposing to significantly reorganize the AFH rules. Currently the AFH rules are codified at OAR chapter 411, division 50. DHS is proposing to have the AFH rules spread across four divisions of chapter 411, where division 49 would be licensing of AFHs, division 50 would cover standards of operation for AFHs, division 51 would establish standards of care for AFHs, and division 52 would outline the process for complaints, investigations, and sanctions for AFHs.
AFH owners will need to monitor the proposed reorganization of the rules closely. In many cases, the current rules will not be amended, but they will be reorganized, which may cause initial confusion when being cited by regulators and operators alike.
DHS is proposing some amendments to the current rules, along with the proposed rule reorganization. The highlights of the proposed changes include:
• Amending OAR 411-050-0655 for standards for medications, treatments, and therapies to require that containers must be clearly labeled with the resident's name, name of each medication, time to be given, dosage, amount, route, and description of each medication that includes the color, shape and any markings according to the label.
• Amending OAR 411-050-0685(12) to increase the amount of time an AFH licensee is given to request a hearing in writing from 10 calendar days after receipt to 20 calendar days from the date the notice is mailed.
Finally, on December 11, 2018 DHS filed a temporary administrative order to amend the AFH rules removing the requirement that renewal applications need to be submitted 45 days in advance of license renewal and removing the word "timely" from the rule. DHS also removed the "late for good cause" language the Department added in November. DHS amended the rule to allow for the AFH license to be in effect as long as the renewal is submitted prior to the expiration date of the license. Under Oregon law, a temporary rule is limited to a maximum of 180 days. DHS must now promulgate these proposed amendments through a permanent rulemaking process if it intends to make the temporary changes permanent (beyond the current 180 days).
DHS has scheduled at least one additional RAC meeting:
• For January 3, 2019, from 8:30-5pm, covering proposed rules for Division 49 Licensure and Division 50 Standards of Operation. Changes include streamlining language, clarifying rule, corporate model of AFH ownership and monitoring devices.
• The location of the meeting is 3406 Cherry Ave NE, Salem, OR 97303.
Mandatory Dementia Training, Are You in Compliance? Check out our DHS Approved Tri-County Mandatory Dementia Training Sessions!
Completion of this training is a requirement for all licensed providers, resident managers, floating resident managers, shift caregivers and substitute caregivers. According to OAR 411-050-0625 (2)(c) and (13)(a):
Oregon Ranks #4 in Long Term Care!
Oregon has been ranked #4 in the nation in long term care. Rankings were based on: