Chapter 441 — Health Care Facilities

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2001 EDITION

441.005 [Amended by 1971 c.730 §1; 1973 c.840 §1; repealed by 1977 c.751 §57]

441.007 [1973 c.840 §2; repealed by 1977 c.751 §39]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; time for compliance with rules and standards. (1) After July 1, 1947, 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 441.055 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]

441.017 Exclusions from licensing requirements for health care facilities. For purposes of licensing health care facilities, health care facility, as defined in ORS 442.015, does not include:

(1) Facilities established by ORS 430.306 to 430.335 for treatment of alcoholism or drug abuse; and

(2) Community mental health and development disabilities programs established under ORS 430.610 to 430.695. [1981 c.231 §2; 1987 c.753 §1]

441.020 Application; fees. (1) Licenses for health care facilities including long term care facilities, as defined in ORS 442.015, shall be obtained from the Department of Human Services.

(2) Applications shall be upon such forms and shall contain such information as 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 441.055.

(3) Each application shall be accompanied by the license fee. If the license is denied, the fee shall be refunded to the applicant. If the license is issued, the fee shall be paid into the State Treasury to the credit of the Department of Human Services Account for carrying out the functions under ORS 441.015 to 441.063 and 431.607 to 431.619.

(4) Except as otherwise provided in subsection (5) of this section, for hospitals with:

(a) Fewer than 26 beds, the annual license fee shall be $750.

(b) Twenty-six beds or more but fewer than 50 beds, the annual license fee shall be $1,000.

(d) One hundred beds or more but fewer than 200 beds, the annual license fee shall be $2,900.

(e) Two hundred or more beds, the annual license fee shall be $3,400.

(5) For long term care facilities with:

(a) Fewer than 16 beds, the annual license fee shall be up to $120.

(b) Sixteen beds or more but fewer than 50 beds, the annual license fee shall be up to $175.

(d) One hundred beds or more but fewer than 200 beds, the annual license fee shall be up to $450.

(e) Two hundred beds or more, the annual license fee shall be up to $580.

(6) For special inpatient care facilities with:

(a) Fewer than 26 beds, the annual license fee shall be $750.

(b) Twenty-six beds or more but fewer than 50 beds, the annual license fee shall be $1,000.

(d) One hundred beds or more but fewer than 200 beds, the annual license fee shall be $2,900.

(e) Two hundred beds or more, the annual license fee shall be $3,400.

(7) For ambulatory surgical centers, the annual license fee shall be $1,000.

(8) For birthing centers, the annual license fee shall be $250.

(9) For outpatient renal dialysis facilities, the annual license fee shall be $1,500.

(10) During the time the licenses remain in force holders thereof are not required to pay inspection fees to any county, city or other municipality.

(11) Any health care facility license may be indorsed to permit operation at more than one location. In such case the applicable license fee shall be the sum of the license fees which would be applicable if each location were separately licensed.

(12) Licenses for health maintenance organizations shall be obtained from the Director of the Department of Consumer and Business Services pursuant to ORS 731.072. [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]

441.022 Factors to be considered in licensing. In determining whether to license a health care facility pursuant to ORS 441.025, the Department of Human Services shall consider only factors relating to the health and safety of individuals to be cared for therein and shall not consider whether the health care facility is or will be a governmental, charitable or other nonprofit institution or whether it 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]

441.025 License issuance; renewal; disclosure; transfer; posting. (1) Upon receipt of an application and the license fee, the Department of Human Services shall issue a license if it finds that the applicant and health care facility comply with ORS 441.015 to 441.063, 441.085 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.

(2) Each license, unless sooner suspended or revoked, shall be renewable annually for the calendar year upon payment of the fee, provided that a certificate of noncompliance has not been issued by the State Fire Marshal, deputy, or approved authority 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 department.

(5) No license shall be issued or renewed for any health care facility or health maintenance organization that offers or proposes to develop a new health service unless a certificate of need has first been issued therefor pursuant to ORS 442.340 (1987 Replacement Part) or approval has been granted under ORS 442.315 or section 9, chapter 1034, Oregon Laws 1989.

(6) No license shall be issued or renewed for any skilled nursing facility or intermediate care facility, as defined in ORS 442.015, 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 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 written notice from the department of intention to suspend or revoke the license or to decertify the home from eligibility to receive payments for services provided under this section.

(8) No license shall be issued or renewed for any long term care facility, as defined in ORS 442.015, unless the applicant has included in the application the identity of any person who has incident of ownership in the facility who also has a financial interest in any pharmacy, as defined in ORS 689.005. [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]

441.030 Denial, suspension or revocation of licenses; restrictions on admission. (1) The Department of Human Services, 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 department may deny, suspend or revoke a license in any case where it finds that there has been a substantial failure to comply with ORS 441.015 to 441.063, 441.085, 441.087, 441.990 (3) or the rules or minimum standards adopted under those statutes.

(3) The department may suspend or revoke a license issued under ORS 441.025 for failure to comply with a department order arising from a health care facility’s substantial lack of compliance with the provisions of ORS 441.015 to 441.063, 441.084 to 441.087 and 441.990 (3), or the rules adopted thereunder, or for failure to pay a civil penalty imposed under ORS 441.710.

(4) The department may 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 to 441.087 and the rules adopted pursuant thereto.

(5) Any long term care facility which has been ordered to restrict the admission of patients pursuant to subsection (4) of this section shall post a notice of such 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.900 §164]

Note: The amendments to 441.030 by section 8, chapter 609, Oregon Laws 2001, take effect October 1, 2002. See section 19, chapter 609, Oregon Laws 2001. The text that is effective on and after October 1, 2002, is set forth for the user’s convenience.

441.030. (1) The Department of Human Services, 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.

(3) The department may suspend or revoke a license issued under ORS 441.025 for failure to comply with a department order arising from a health care facility’s substantial lack of compliance with the provisions of ORS 441.015 to 441.063, 441.084 to 441.087 and 441.990 (3) or ORS 441.162 or 441.166, or the rules adopted thereunder, or for failure to pay a civil penalty imposed under ORS 441.170 or 441.710.

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 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 183.310 to 183.550.

(2) Adoption of rules, conduct of hearings, issuance of orders and judicial review of rules and orders shall be in accordance with ORS 183.310 to 183.550. [1971 c.734 §56; 1977 c.582 §47; 1987 c.428 §7; 2001 c.900 §165]

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. 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 health care facility or health maintenance organization 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]

441.055 Rules; evidence of compliance; health care facilities to ensure compliance; medical staff bylaws; peer review; procedure. (1) The Department of Human Services shall adopt such rules with respect to the different types of health care facilities as may be designed to further the accomplishment of the purposes of ORS 441.015 to 441.087. No rules shall require any specific food so long as the necessary nutritional food elements are present.

(2) Rules describing care given in health care facilities shall include, but not be limited to, standards of patient care or patient 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. The department may in its discretion accept certificates by the Joint Commission on Accreditation of Hospitals or the Committee on Hospitals of the American Osteopathic Association as evidence of compliance with acceptable standards.

(3) 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 assure 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.

(4) The physicians organized into a medical staff pursuant to subsection (3) 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 (3) 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 Board of Medical Examiners for the State of Oregon;

(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.

(5) 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.

(6) The Board of Medical Examiners for the State of Oregon 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.

(7) The physicians appointed pursuant to subsection (6) of this section shall be deemed agents of the Board of Medical Examiners for the State of Oregon, 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.

(8) 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.

(9) 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.

(10) Notwithstanding subsection (9) 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 (9) of this section.

(11) Procedures for peer review established by subsections (6) to (10) of this section are exempt from ORS 183.310 to 183.550.

(12) The department 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.

(13) 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]

441.057 Rules concerning complaints about care; reporting by employee. (1) Rules adopted by the Department of Human Services pursuant to ORS 441.055 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) No health care facility, or person acting in the interest of the facility, shall 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 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 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 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. [1975 c.360 §2; 1981 c.336 §1; 1987 c.428 §10; 2001 c.900 §168]

Note: The amendments to 441.057 by section 16, chapter 609, Oregon Laws 2001, take effect October 1, 2002. See section 19, chapter 609, Oregon Laws 2001. The text that is effective on and after October 1, 2002, is set forth for the user’s convenience.

441.057. (1) Rules adopted by the Department of Human Services pursuant to ORS 441.055 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.

(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.

Note: Section 17, chapter 609, Oregon Laws 2001, provides:

Sec. 17. Sections 10, 11 and 12 of this 2001 Act [441.174, 441.176 and 441.178] and the amendments to ORS 441.057 by section 16 of this 2001 Act apply only to actions taken by a nursing staff on or after the effective date of this 2001 Act [October 1, 2002]. [2001 c.609 §17; 2001 c.609 §17a]

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; fees. (1) The Department of Human Services shall make or cause to be made such inspections as it may deem necessary.

(2) 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 442.340 (1987 Replacement Part), if required, submit plans and specifications therefor to the department for preliminary inspection and approval or recommendations with respect to compliance with the rules authorized by ORS 441.055 and 443.420 and for compliance with National Fire Protection Association standards when the facility is also to be Medicare or Medicaid certified. The department may require by rule payment of a fee for project review services at a variable rate, dependent on total project cost. For health 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. The department may also conduct an on-site review of projects as a prerequisite to licensure of new facilities, major renovations and expansions. The department shall, at least annually, with the advice of facilities covered by this review, present proposed rule changes regarding facility design and construction to such agencies for their consideration. The department shall also publish a state submissions guide for health 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]

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 Department of Human Services shall avoid unnecessary facility disruption by coordinating inspections performed by the department with inspections performed by other federal, state and local agencies that have responsibility for health care facility licensure.

(2) Whenever possible, 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) The department shall adopt all rules necessary to implement this section. [1995 c.449 §6; 2001 c.900 §170]

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 such use established by the medical staff and the podiatric staff of the hospital. Such staff comprised of physicians and or 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 the podiatric physician and surgeon’s use of the facilities may be suspended or terminated. [1973 c.279 §2]

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;

(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, 441.085, 441.087 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]

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

(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 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 Board of Medical Examiners for the State of Oregon 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.

441.080 [Repealed by 1971 c.730 §25]

441.081 [1979 c.680 §2; repealed by 1981 c.784 §38]

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

(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) 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 so 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 but no facility is required to accept any opened container of such medication;

(c) From among suppliers of nonprescriptive sickroom supplies so long as any items supplied can be maintained in a clean manner with equipment available at the facility; and

(d) For purposes of paragraphs (b) and (c) of this subsection, "supplier" includes an authorized representative of the patient who purchases nonprescriptive medication or nonprescriptive sickroom supplies at retail.

(2) 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 (1)(a) of this section must also provide that information for any patient it serves at the facility. [1983 c.328 §1]

441.085 Establishing licensing classifications; use of descriptive titles limited. (1) The Department of Human Services may by rule establish classifications and descriptions for the various types of health care facilities that are licensed 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.

(2) A health care facility licensed by the department shall neither assume a descriptive title nor be represented under any descriptive title other than the classification title established by the department and under which it is licensed. [1971 c.730 §2; 1973 c.840 §13; 1977 c.751 §26; 1987 c.428 §15; 2001 c.900 §171]

441.087 General inspection. (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 the department. [1975 c.294 §§2,3; 1977 c.751 §27; 1987 c.428 §16]

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 Department of Human Services 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 Department of Human Services 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 prepaid capitated health service contracts executed by the Department of Human Services and private health maintenance organizations and managed care organizations shall include a provision that encourages a managed care plan to establish agreements with hospitals in the plan’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]

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]

441.097 [1987 c.428 §2c; repealed by 2001 c.900 §261]

NURSING HOME DEMONSTRATION PROJECT

Note: Sections 1 to 7, chapter 972, Oregon Laws 2001, provide:

Sec. 1. Department of Human Services to establish demonstration project. (1) The Department of Human Services shall establish a demonstration project to:

(a) Evaluate alternate approaches to licensing and regulating nursing homes in order to improve the quality of long term care services to residents of nursing homes;

(b) Improve the performance of nursing homes on state and federal licensing surveys; and

(2) The goals of the demonstration project are to:

(a) Improve the quality of services for residents of nursing homes;

(b) Increase the percentage of nursing homes that are in substantial compliance with licensing requirements;

(d) Provide training and technical assistance to administrators and staff of nursing homes;

(e) Offer forums for nursing home administrators and staff to share information; and

(f) Develop alternate approaches to achieve regulatory compliance.

(3)(a) The department shall apply to the federal Health Care Financing Administration for a waiver of federal regulations in order to conduct licensing surveys of nursing homes participating in the demonstration project at irregular intervals.

(b) Notwithstanding ORS 441.087 (1), upon receipt of the federal waiver, the department may:

(A) Use a varied licensing survey schedule for nursing homes participating in the demonstration project; and

(B) Conduct additional licensing surveys as needed, including but not limited to the following circumstances:

(i) Change of ownership or management of the nursing home;

(ii) Change of administrator or director of nursing services; or

(iii) Multiple substantiated complaint investigations. [2001 c.972 §1]

Sec. 2. Senior Consumer Advisory Committee. (1) The Senior Consumer Advisory Committee is created. The committee consists of four members, as follows:

(a) One member representing the Governor’s Commission on Senior Services;

(b) One member representing a local chapter of a national voluntary health organization that provides programs and services for individuals with Alzheimer’s disease and related disorders;

(d) One member representing consumers and advocates for individuals with long term care needs, appointed by the Department of Human Services.

(2) The Senior Consumer Advisory Committee shall designate one of its members as chairperson. The chairperson shall call periodic meetings of the committee to monitor and assess implementation of the demonstration project described in section 1 of this 2001 Act. [2001 c.972 §2]

Sec. 3. Rulemaking. The Department of Human Services shall adopt rules to carry out sections 1 and 4 of this 2001 Act. [2001 c.972 §3]

Sec. 4. Annual license fee for 2002, 2003 and 2004. In addition to the fees set forth in ORS 441.020, the annual license fee for nursing homes for the calendar years 2002, 2003 and 2004 shall be $6.50 per bed per year. [2001 c.972 §4]

Sec. 5. Operative date. Sections 1 and 4 of this 2001 Act become operative when the Director of Human Services receives a waiver from the federal Health Care Financing Administration to conduct licensing surveys of nursing homes in the demonstration project at irregular intervals, adopts rules under section 3 of this 2001 Act and files a copy of the rules with the Secretary of State, as prescribed by ORS 183.310 to 183.550. [2001 c.972 §5]

Sec. 6. Use of licensing fee increase to fund demonstration project. All moneys received by the Department of Human Services under section 4 of this 2001 Act shall be paid into the State Treasury and deposited in the General Fund to the credit of the Senior and Disabled Services Account. Such moneys are appropriated continuously to the Department of Human Services for the purposes of section 1 of this 2001 Act. [2001 c.972 §6]

Sec. 7. Sections 1 to 4 and 6 of this 2001 Act are repealed on June 30, 2005. [2001 c.972 §7]

LONG TERM CARE OMBUDSMAN

441.100 Definitions for ORS 441.100 to 441.153. (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 care 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]

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;

(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. 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 Board of Examiners of Nursing Home Administrators 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]

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;

(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 192.525 or 192.530 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]

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) Within 60 days after November 1, 1981, 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]

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.

(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;

(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.

(b) Maintain liaison with appropriate agencies and 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;

(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) All members 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 disabled persons 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. [1985 c.153 §6; 1989 c.224 §93]

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 Definitions 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 take effect October 1, 2002. See section 19, chapter 609, Oregon Laws 2001.

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 development and implementation of a written hospital-wide staffing plan for nursing services. The hospital shall have a process that ensures the consideration of input from direct care clinical staff in the development, implementation, monitoring, evaluation and modification of the staffing plan. The staffing plan shall include the number, qualifications and categories of nursing staff needed for all units.

(2) The hospital shall evaluate and monitor the written staffing plan for nursing services for effectiveness and revise the 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 the nursing care required by the aggregate and individual needs of patients. This nursing care shall be the major consideration in determining the number and categories of nursing staff needed.

(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 the scopes of practice for registered nurses, licensed practical nurses and the authorized duties of certified nursing assistants.

(4) The written staffing plan for nursing services shall establish minimum numbers of nursing staff, including licensed nurses and certified nursing assistants, on specified shifts. The number of nursing staff on duty shall be sufficient to ensure that the nursing care needs of each patient are met. At least one registered nurse and one other nursing care staff member must be on duty when a patient is present.

(5) A hospital shall maintain and post a list of qualified, on-call nursing staff and nursing services that may be called to provide replacement staff in the event of sickness, vacations, vacancies and other absences of nursing staff and that provides a sufficient number of replacement staff for the hospital on a regular basis. [2001 c.609 §2]

Note: See notes under 441.160.

441.164 Variances in staffing plan requirements. Upon request of a hospital, the Department of Human Services 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]

Note: See notes under 441.160.

441.166 Need for replacement staff. (1) After a hospital learns about the need for replacement staff, the hospital shall make every reasonable effort to obtain registered nurses for unfilled hours or shifts before requiring a registered nurse to work overtime.

(2) A hospital may not require a registered nurse to work:

(a) More than two hours beyond a regularly scheduled shift; and

(b) More than 16 hours in a 24-hour time period.

(3) 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 Department of Human Services by rule; or

(c) If a hospital has made reasonable efforts to contact all of the qualified, on-call nursing staff and nursing services on the list described in ORS 441.162 and is unable to obtain replacement staff in a timely manner. [2001 c.609 §4]

Note: See notes 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 notes under 441.160.

441.170 Civil penalties; suspension or revocation of license; rules; compliance audits. (1) The Department of Human Services may impose civil penalties in the manner provided in ORS 183.090 or suspend or revoke a license of a hospital for a violation of any provision of ORS 441.162 or 441.166. The department 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 department 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 department 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 department 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]

Note: See notes under 441.160.

Note: Section 7, chapter 609, Oregon Laws 2001, provides:

Sec. 7. The Department of Human Services shall report to the Seventy-second Legislative Assembly on whether funds from licensing fees paid by hospitals under ORS 441.020 are being used to pay the costs of audits required by section 6 of this 2001 Act [441.170]. [2001 c.609 §7]

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

(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 notes 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 notes under 441.160.

Note: See second note under 441.057.

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 18.537.

(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 notes under 441.160.

Note: See second note under 441.057.

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 notes under 441.160.

Note: See second note under 441.057.

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 Department of Human Services in the manner provided by ORS 183.090. [2001 c.609 §13]

Note: See notes 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 notes 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 notes 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 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) "Department" means the Department of Human Services.

(2) "Director" means Director of Human Services.

(3) "Facility" means a long term care facility as defined in ORS 442.015 or a residential care facility as defined in ORS 443.400. Facilities licensed under ORS 418.205 to 418.325 by the department are exempt from ORS 441.277 to 441.323.

(4) "Monitor" means an agent of the director 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]

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 the county in which a facility is located for an order appointing a trustee to administer the facility for a period not to exceed 18 months.

(2) The court shall hold a hearing on a petition filed under subsection (1) of this section within 10 days of the filing of the petition. The petition shall be placed at the head of the docket.

(3) The petition and notice of the hearing shall be served on the person or body legally responsible for the facility. Service at the facility to the individual in charge shall be considered service on the owner.

(4) If the court determines at the hearing that grounds exist for the appointment of a trustee under ORS 441.286, the court shall enter the order. [1981 c.868 §2; 1985 c.648 §1; 1987 c.428 §18]

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. The grounds for the appointment of a trustee shall be that the health and welfare of patients in a facility are now or in the immediate future will be in jeopardy based on:

(1) Sufficient prior surveys or investigations of complaints resulting in the determination that the complaints are supported by findings, and evidence that the Department of Human Services has attempted by findings of survey deficiencies and imposition of civil penalties to bring the long term care facility into compliance with statute and rules.

(2) No improvement in patient care, health and welfare over a seven-day period after the survey or investigation as defined by:

(a) Physicians’ orders not being followed correctly.

(b) The lack of, or inadequate direct patient care to the point that the patient has or is suffering physical harm.

(d) Physical injury to a patient of a long term care facility which has been determined by the department to be caused by other than accidental means and for which the administrator has not taken necessary action.

(3) The person or body legally responsible is unwilling or unable, or both, to upgrade the quality of patient care to the level necessary to protect the health and welfare of the patients.

(4) The facility is insolvent.

(5) The department has revoked or suspended the license of the facility.

(6) The operator intends to close the facility and has not made adequate arrangements for relocation of the residents.

(7) The facility refuses to allow the monitors access to the facility. [1981 c.868 §3; 1985 c.648 §2; 1987 c.428 §19]

441.289 Powers and duties of trustee. A trustee appointed under ORS 441.286:

(1) May exercise any powers and shall perform any duties required by the court.

(2) Shall operate the facility in such a manner as to protect the health and welfare of the patients.

(3) Shall have the same rights to possession of the building in which the facility is located and of all goods and fixtures in the building at the time the petition for the appointment of the trustee is filed as the person or body legally responsible would have had if the trustee had not been appointed.

(4) Shall take such action as is reasonably necessary to protect and conserve the assets and property the trustee takes in possession, or the proceeds of any transfer thereof, and may use them only in the performance of the powers and duties set forth in this section and by order of the court.

(5) May receive and spend the facility’s income and encumber its assets to the extent specifically authorized by the court and do all acts necessary or appropriate to promote the health and safety of the residents.

(6) Shall have the power to maintain an action to reach the assets of the parent corporation if it appears to the court that the parent corporation is the actual controlling owner of the facility and that the named owner is not in control of the facility.

(7) May use the building, fixtures, furnishings and any accompanying consumable goods in the provision of care and services to patients at the time the petition for the appointment of the trustee was filed.

(8) Shall collect payments for all goods and services provided to patients during the period of the trust, at the same rate of payment charged by the facility at the time the petition for the appointment of the trustee was filed, unless a different rate is set by the court.

(9) May correct or eliminate any deficiency in the structure or furnishings of the facility which endangers the health or welfare of the patients while they remain in the facility. However, the total cost of correction shall 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 which 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) Shall, if the facility ceases to operate during the period of the trust and any patient is transferred as a result thereof, 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.

(d) Each patient or the patient’s legal representative is permitted to participate in the selection of the new placement.

(17) Is an agent of the state for purposes of ORS 30.260 to 30.300 for which the Department of Human Services shall be assessed and the department may use the account 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]

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 person or body legally responsible for the facility. The trustee shall give a receipt for each payment and shall keep a copy of each receipt on file. The trustee shall deposit amounts received in a special account and may use this or any other similar account for disbursements.

(2) The trustee may bring an action to enforce the liability created by subsection (1) of this section. Proof of payment to the trustee is as effective in favor of the person making the payment as payment of the amount to the person who would have been entitled to receive the sum so paid.

(3) A patient shall not be discharged, nor shall any contract or rights be forfeited or impaired, nor shall forfeiture or liability be increased, by reason of an omission to pay a person or body legally responsible for the facility a sum paid to the trustee. [1981 c.868 §5]

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 person or body legally responsible for the facility 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 person or body legally responsible for the facility 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]

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 if there are insufficient funds on hand to meet those expenses, the Department of Human Services may draw from the supplemental funds created under ORS 441.303 to pay those expenses. Operating funds collected under this section and 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]

441.303 Fees from facilities in addition to license fee; use of fees. (1) To establish and maintain a fund to meet expenses of a trustee if moneys collected under ORS 441.289 and 441.293 are insufficient, the Department of Human Services shall require a payment equal to the equivalent of the annual license fee for the facility. The payment shall be due annually on a date fixed by the department and enforced in the same manner as the license fee for the particular facility is payable and enforceable. The amount of payments shall be set so as to acquire in the account the $300,000 described in subsection (3) of this section at the end of six years from the initial payment year.

(2) Funds collected under this section and, notwithstanding ORS 293.140, all interest earned on cash balances thereof invested by the State Treasurer shall be maintained as a fund in the State Treasury, separate and distinct from the General Fund, and are continuously appropriated and disbursed to the department to pay the expenses of the trust.

(3) Whenever the fund established under this section reaches $300,000, the department shall discontinue collecting the payment described in subsection (1) of this section. However, whenever the fund falls below $300,000, the department shall reinstitute the payment described in subsection (1) of this section until the fund is restored to $300,000. If the amount collected would raise more than required, the department shall prorate the payment of each facility so as to raise no more than required. The department may use reasonable amounts from the fund necessary to administer the fund.

(4) Whenever the department is required to use any amount in the fund to operate a facility under ORS 441.289 and 441.293, the amount used shall constitute a loan to the facility and shall be repayable to the fund under such terms and conditions as the facility and the department agree. The rate of interest shall be set by the department to reflect the prevailing market rate on similar loans. The interest shall be credited to the separate fund described in subsection (2) of this section.

(5) The assessment imposed under this section shall be considered an allowable cost in setting the reimbursement rates of a facility by the department.

(6) The court may order that the trustee file an undertaking with the clerk of the court. The fund collected 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]

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 441.286. The duration of a license issued under this section is limited to the duration of the trust. [1981 c.868 §10]

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 person or body legally responsible for the facility if the person or body legally responsible intends to discontinue the operation of or close the facility during the period of the trust. The court may use its discretion in terminating a trust upon petition of the person or body legally responsible for the facility 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 owners, body or person legally responsible for the facility and permit the facility to continue in operation;

(b) Extend the period of appointment of the trustee by not more than 90 days; or

(3) Nothing in ORS 441.277 to 441.323 is intended to limit or prohibit any person or body legally responsible for the facility from ceasing the operation of and closing a facility during the period of the trust. However, the person or body legally responsible intending to do so shall give written notice of the intended action of the trustee pursuant to rules of the department. The trustee may continue to operate the facility for a period of not more than 60 days after notice is received. The person or body legally responsible shall be liable for any expenses incurred in the operation of the facility during this period. [1981 c.868 §11; 1987 c.428 §22]

441.318 Trustee accounting; 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 a report and file it 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) If the operating funds collected by the trustee under ORS 441.289 and 441.293 exceed the reasonable expenses of the trust, the court shall order payment of the surplus to the person or body legally responsible after reimbursement to the Department of funds contributed under ORS 441.303. If the operating funds are insufficient to cover the reasonable expenses of the trust, the person or body legally responsible for the facility shall be liable for the deficiency. The person or body legally responsible for the facility may apply to the court to determine the reasonableness of any expense incurred by the trust. The person or body responsible for the facility shall not be responsible for expenses in excess of what the court finds to be reasonable. Payment recovered from the person or body legally responsible for the facility shall be credited to reimburse the account for funds contributed by the department under ORS 441.303.

(3) The department shall have a lien for any deficiency under subsection (2) of this section upon any beneficial interest, direct or indirect, of any person or body legally responsible for the facility operation, of any person or body legally responsible for the building in which the facility is located or the land on which the facility is located and any fixtures, equipment or goods used in the operation of the facility and the proceeds from any conveyance of such property made by the person or body legally responsible within one year prior to the filing of the petition for appointment of a trustee.

(4) The lien provided in subsection (3) of this section is prior to any lien or other interest which originates subsequent to the filing of a petition for appointment of a trustee under ORS 441.286, except for a construction lien arising out of work performed with the express consent of the trustee. [1981 c.868 §12; 1987 c.428 §23]

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 on prior obligations or civil or criminal liabilities. (1) Nothing in ORS 441.277 to 441.323 is intended:

(a) To relieve any person or body legally responsible for the facility placed in trust of any civil or criminal liability incurred, or any duty imposed by law by reason of acts or omissions of the person or body legally responsible prior to the appointment of a trustee under ORS 441.286.

(b) To suspend any obligation of the person or body legally responsible 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.

(2) No person or body legally responsible shall be held professionally liable for acts or omissions of the trustee or the trustee’s employees during the term of the trust. [1981 c.868 §13]

441.325 [Renumbered 440.365]

441.330 [Renumbered 440.370]

441.335 [Amended by 1963 c.9 §25; 1969 c.343 §18; renumbered 440.375]

441.340 [Repealed by 1971 c.647 §149]

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

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 183.310 to 183.550 and the grounds for contesting the move or termination of payment.

(2) Written not