§ 443.360 — Agency with choice services; license required; rules; penalties

Oregon § 443.360

• Jurisdiction: Oregon
• Vol.: 12
• Title 36: Public Health and Safety
• Ch. 443: Residential Care; Adult Foster Homes; Hospice Programs

Text

(1) As used in this section:
(a) “Agency” means an organization that provides agency with choice services.
(b) “Agency with choice services” means services described in subsection (3) of this section that are provided to an individual by an agency using a self-directed service delivery model.
(c) “Authorized representative” means a person designated by an individual or the individual’s legal representative to act on behalf of the individual in making decisions on matters pertaining to the planning and implementation of an in-home service plan or an individual support plan.
(d)(A) “Direct support worker” means a person providing attendant or personal care services identified in an individual’s individualized service plan as an employee of the agency.
(B) “Direct support worker” does not mean a home care worker or a personal support worker as those terms are defined in ORS 410.600.
(e) “Individual” means an individual, or the authorized representative of an individual, who receives in-home services and supports through the Department of Human Services or the Oregon Health Authority and who is:
(A) An older adult;
(B) An individual with a physical disability; or
(C) An individual with behavioral health needs.
(f) “Nurse delegation” means arranging for tasks that are normally performed only by licensed nurses to be performed by nursing assistants or other care providers subject to the instruction and supervision of a licensed nurse.
(g) “Self-directed service delivery model” means a model in which an individual is supported by an agency that functions as the common law employer of direct support workers recruited by the individual and provides financial management services and tasks in place of the individual. The individual directs the direct support workers and is considered a co-employer with the agency.
(2)(a) The Department of Human Services shall adopt rules for the licensing of agencies providing services to older adults or individuals with physical disabilities.
(b) The Oregon Health Authority shall adopt rules for the licensing of agencies to provide personal care services to individuals with behavioral health needs through a state plan amendment authorized by 42 U.S.C. 1396n(i) and under the state’s 42 U.S.C. 1396n(k) plan.
(3) An agency licensed under subsection (2) of this section shall:
(a) Assist individuals with the following tasks:
(A) Recruiting and selecting direct support workers to be employed by the agency to provide the individual’s attendant and personal care services or removing direct support workers from the individual’s care team;
(B) Coordinating the schedules of direct support workers, establishing the responsibilities of direct support workers and ensuring that direct support workers do not work more than the hours authorized by the department or the authority;
(C) Training direct support workers with respect to the individual’s unique needs and preferences in how the services and supports are delivered;
(D) Supporting the individual in maintaining a safe workplace, in self-direction and in the roles and responsibilities of co-employer; and
(E) Performing other tasks prescribed by the department or the authority by rule.
(b) Be responsible for hiring and terminating direct support workers who are employed by the agency.
(c) Perform the following functions:
(A) Submit claims for reimbursement to the department or the authority and pay direct support workers for authorized hours worked and billed in accordance with the electronic visit verification requirements for providers of services;
(B) Withhold, file and pay income taxes and all employment-related taxes, including but not limited to workers’ compensation premiums and unemployment taxes;
(C) Verify the qualifications of each direct support worker as required by federal and state laws, including by ensuring that each direct support worker passes a background check;
(D) Ensure that direct support workers employed by the agency have access to support coordination;
(E) Establish a process for:
(i) Identifying, analyzing and correcting adverse events;
(ii) Ensuring the timely reporting of any allegation of abuse, neglect or fiscal improprieties involving an individual or a direct support worker, immediately responding to the allegation and reporting the allegation to the appropriate authorities;
(iii) Selecting and tracking indicators of quality by high-risk, high-volume and problem-prone areas and indicators of individual safety and the quality of care; and
(iv) Conducting and documenting quality improvement activities;
(F) Meet with individuals at least every six months, with at least one in-home visit with the individual each 12 months, as determined jointly with the individual based on the preferences and needs of the individual;
(G) Provide basic, standardized training to direct support workers and ensure that direct support workers complete and are current with all training prescribed by the department and the authority by rule;
(H) Retain a personnel record for each direct support worker that includes, at a minimum:
(i) Documentation of completed required training and ongoing education;
(ii) Required criminal background checks; and
(iii) Evidence that any health care related license or certificate held by a direct support worker is current and that the direct support worker has not committed any action that would prevent the direct support worker from providing services; and
(I) Provide other administrative and employment-related supports.
(d) Have in place a process to access and respond to a complaint or grievance submitted by an individual about the services provided to the individual by a direct support worker.
(e) Pay any fines or penalties that may be assessed against an individual if the agency fails to withhold the correct amounts of taxes or pay the appropriate employment-related taxes to mitigate the risk to the individual.
(f) Indemnify an individual for any employment or wage-related claims, damages, fines or penalties arising from the individual’s relationship with the agency.
(g) Maintain a drug-free workplace that prohibits direct support workers from being under the influence of drugs or alcohol when providing services to an individual.
(h) Commit to involving direct support workers employed by the agency and individuals served by the agency in the development of and decision-making about work processes, performance standards, quality improvement strategies, training, technology use and workplace safety.
(i) Commit to minimizing the impact of the loss of pay and work hours for direct support workers resulting from the hospitalization or death of an individual or the dismissal of the direct support worker by the individual.
(j) Commit to engage and work closely with individuals in designing and implementing agency with choice services by appointing individuals to an advisory board, using focus groups of individuals or employing other methods, approved by the department or the authority, for working with individuals.
(k) Promote each individual’s self-direction and choice and maximize an individual’s autonomy and control over the decisions regarding the individual’s daily service needs, including by:
(A) Using a person-centered approach so that the individual is at the center of the decision-making process regarding:
(i) Which attendant and personal care services are needed to assist the individual in activities of daily living, instrumental activities of daily living and health-related tasks, as defined by the department or the authority by rule;
(ii) Which services are consistent with the individual’s personal and cultural values and preferences;
(iii) Where and how the services are delivered;
(iv) When the services are delivered; and
(v) Who provides the services;
(B) Enhancing the role of direct support workers as members of the individual’s care team, as desired and authorized by the individual and reflected in the individual’s individualized service plan developed in accordance with rules adopted by the department or the authority; and
(C) Complying with other requirements as prescribed by the department or the authority, as applicable, by rule.
(L) Have in place a plan for recruiting and retaining qualified direct support workers to meet the growing need for direct support workers in this state.
(m) Assist an individual in planning for direct support worker absences or similar situations that call for replacement workers, consistent with the individual’s choice of direct support workers to provide the services.
(n) Have in place a quality assurance system and a performance improvement plan to evaluate and monitor the quality, safety and appropriateness of the services provided by direct support workers.
(4) Each agency must enter into a provider agreement with the department or the authority to submit billings to and receive payments from the department or the authority for the services furnished by the direct support workers.
(5) An individual has the right to:
(a) Select or otherwise approve the direct support workers who provide services to the individual before the direct support workers begin providing the services;
(b) Train direct support workers in the individual’s specific service needs and in the provision of services to the individual;
(c) Direct the individual’s own services that are provided by direct support workers;
(d) Require an agency to remove a direct support worker from the individual’s care team;
(e) Report concerns and submit grievances about a direct support worker to the agency, the relevant licensing agency or any other appropriate third party, such as law enforcement in cases of abuse, neglect or financial misappropriation or improprieties;
(f) Schedule a direct support worker’s time in accordance with the individual’s desires, needs and authorized hours; and
(g) Receive employer-related training, as required by federal rules, from a third party.
(6) An individual’s exercise of any of the functions described in subsection (5) of this section does not create an employer-employee relationship between the direct support workers and the individual except as a co-employer with the agency.
(7) The department and the authority shall establish reimbursement rates for agencies in accordance with rate methodologies approved by the Centers for Medicare and Medicaid Services. The baseline rates established by the department and the authority must be sufficient to:
(a) Support substitute staffing needs due to canceled shifts, planned and unplanned absences of direct support workers, respite care for individuals’ unpaid caregivers and other similar needs;
(b) Allow an agency to pay direct support workers wages and benefits at least equal to the wages and benefits provided to home care workers in the collective bargaining agreement under ORS 410.612; and
(c) Meet the requirements for training and supports for direct support workers and for individuals as prescribed by the department or the authority by rule.
(8) The department and the authority shall establish by rule financial transparency requirements for agencies that include but are not limited to:
(a) Establishing a maximum allowable percentage of the hourly reimbursement rate paid to the agency that may be spent on overhead and administrative costs;
(b) Requiring agencies to submit to the department or the authority detailed cost reports that include, at a minimum, actual spending by the agency on direct support worker wages, benefits and other personnel expenses; and
(c) Requiring agencies to pass through to direct support workers reimbursement rate increases that are targeted for wages and benefits of direct support workers.
(9) Nurse delegation is the responsibility of the department or the authority and not the responsibility of an agency and shall be operated in the same manner as nurse delegation for home care workers, as defined in ORS 410.600.
(10) The department and the authority shall conduct a competitive procurement process to select agency with choice services providers. The department and the authority may contract with no more than two agencies in total to provide agency with choice services.
(11) Except as provided in subsection (12) of this section, an agency that seeks to contract with the department or the authority to provide agency with choice services must first provide a labor peace agreement that:
(a) Is signed or certified by an authorized representative of a labor organization that represents employees in this state or a neighboring state who provide services similar to the direct support worker services provided by the direct support workers employed by the agency and that seeks to represent the direct support workers employed by the agency; and
(b) Includes a process for the resolution of labor disputes with the direct support workers employed by the agency.
(12) The department or the authority may contract with an agency that has not provided a labor peace agreement described in subsection (11) of this section if:
(a)(A) A labor organization is currently certified to represent the direct support workers employed by the agency and the labor organization informs the agency that the labor organization does not wish to enter into a labor peace agreement with the agency; and
(B) The agency demonstrates to the satisfaction of the department or the authority that the agency has processes in place to ensure the uninterrupted delivery of direct support worker services in the event of a labor dispute; or
(b)(A) The agency notifies in writing all labor organizations certified to represent employees in this state who provide services similar to the services to be provided by the direct support workers employed by the consumer-directed employer that the agency wishes to enter into a labor peace agreement; and
(B) Three weeks following the date on which the notice was given:
(i) No labor organization responds to the notice; or
(ii) No labor organization expresses an interest in representing the direct support workers employed by the agency.
(13) The department or the authority may deny, suspend or revoke the license, certificate or endorsement, as applicable, of an agency or may impose a civil penalty, in accordance with ORS 183.745, on an agency for the agency’s failure to comply with this section or rules adopted in accordance with this section. A failure to comply includes but is not limited to a:
(a) Failure by the agency to provide required agency with choice services;
(b) Failure by the agency to correct deficiencies identified during a program review or an investigation by the department or authority;
(c) Demonstrated pattern, over the previous two years, of significant and substantiated violations of employment or wage laws in the state by:
(A) An agency as an employer of direct support workers; or
(B) A person applying to become an agency providing agency with choice services in any business owned or operated by the person; or
(d) Failure of an agency to comply with ORS 443.004.
(14) This section does not supersede or limit any other authority of the department or the authority with regard to oversight of contracting entities or the imposition of civil penalties.

Legislative History

2024 c.37 §1; 2025 c.2 §38