Or. Admin. R. 407-007-0279

Current through Register Vol. 63, No. 9, September 1, 2024

Section 407-007-0279 - Federal Mandatory Exclusions

(1) Mandatory exclusions under 42 USC 1320a-7(a) (Exclusion of certain individuals and entities from participation in Medicare and State health programs) may result in ineligibility for an SI if the convictions or conditions meet certain time frames or criteria in 42 USC 1320a-7(c).

(a) Section (1) of this rule applies to an SI who is or seeks to be:

(A) A home care worker or personal support worker as defined in ORS 410.600; or

(B) Works for or seeks to work for:

(i) A residential facility as defined in ORS 443.400 that receives Medicare or state health care funds;

(ii) An in-home care agency as defined in ORS 443.005 that receives Medicare or state health care funds;

(iii) A home health agency as defined in ORS 443.005 that receives Medicare or state health care funds;

(iv) A nursing facility licensed by the Department in accordance with OAR chapter 411 division 85;

(v) An assisted living facility or a residential care facility licensed by the Department in accordance with OAR chapter 411 division 54;

(vi) A personnel or staffing agency providing staff to a nursing facility, assisted living facility, or residential care facility licensed by the Department as listed in this subsection;

(vii) An adult foster home licensed by the Department or Authority, or licensed locally under the direction of the Department or Authority.

(viii) Any other QE determined by the Department or Authority to have a federal requirement for an OIG check.

(b) Indication that an individual has an exclusion can be determined by searching the OIG's List of Excluded Individuals. This exclusion list is available to QEDs when initiating and before submitting background check requests through ORCHARDS.

(c) If a QED or BCU determines that an individual subject to this rule has an exclusion listed in 42 USC 1320a-7:

(A) The QED withdraws the background check application before submitting it because the SI is not elegible for the position; or

(B) BCU must make the determination of ineligibility due to mandatory exclusion.

(d) Convictions or conditions requiring mandatory exclusion include but are not limited to:

(A) Convictions related to the delivery of Medicare or State health care program services.

(B) Convictions related to the abuse of a client or patient.

(C) Felony convictions related to health care fraud.

(D) Felony convictions related to the manufacture, delivery, prescription or dispensing of a controlled substance.

(e) When checking for a background check application, a QED or BCU can consider an SI has having a mandatory exclusion if the SI is verified using his or her Social Security Number. Unless the mandatory exclusion has been rescinded under federal directive and the SI is no longer showing on the Office of the Inspector General's (OIG's) Exclusion list, an SI remains ineligible for the following periods of time:

(A) The minimum period of exclusion is not less than five years from the date of conviction;

(B) If the SI's mandatory exclusion is based on a conviction occurring on or after August 5, 1997 and the SI has on one previous occasion one or more convictions which are also mandatory exclusions, the minimum period of exclusion is not less than 10 years from the date of conviction; or

(C) If the SI's mandatory exclusion is based on a conviction occurring on or after August 5, 1997 and the SI has on two or more previous occasions one or more convictions which are also mandatory exclusions, the minimum period of exclusion is permanent.

(f) Under OAR 125-007-0260(2)(d), the determination of ineligibility due to mandatory exclusion is considered an incomplete fitness determination. A fitness determination with a weighing test is not required regardless of any other potentially disqualifying convictions and conditions the SI has. When a background check results in an incomplete fitness determination, the SI shall not be allowed to work, volunteer, be employed, or otherwise perform in the position listed on the background check request. An incomplete fitness determination must result in immediate termination, dismissal, or removal of the SI.

(g) A determination of ineligibility due to mandatory exclusion is subject to appeal rights only if allowed under 42 UCS 1320a-7(g).

(h) If the SI no longer appears on the OIG's List of Excluded Individuals, the SI is subject to a fitness determination under OAR 125-007-0260 and 407-007-0320.

(2) Convictions and conditions under 42 USC 12645g (Criminal history checks under the National and Community Service State Grant Program) result ineligibility for an SI.

(a) Section (2) of this rule applies to an SI who works or seeks to work as an employee, volunteer, or contractor under the National and Community Service Act of 1990 as amended by the Serve America Act, including participants and employees in:

(A) Americorps;

(B) Foster Grandparents;

(C) Senior Companions; or

(D) Any other programs funded under national service laws.

(b) If BCU determines that an individual is subject to this rule and has an exclusion listed in 42 USC 12645g, BCU must make the determination of ineligibility due to mandatory exclusion. Exclusions include:

(A) Listing on, or requirement to be listed on, a sex offender registry;

(B) Conviction for murder.

(C) Refusal to complete the background check.

(D) False statement by the SI in connection with criminal history disclosure, specifically intentionally providing false information impacting the ability to conduct the background check, such as:

(i) A false name;

(ii) A government-issued identification belonging to another person;

(iii) A false identification; or

(iv) Fingerprints of another person.

(c) Under OAR 125-007-0260(2)(d), a determination of ineligibility due to mandatory exclusion is considered an incomplete fitness determination. A fitness determination with a weighing test is not required regardless of whether the SI has any other potentially disqualifying convictions and conditions. When a background check results in an incomplete fitness determination, the SI must not be allowed to work, volunteer, be employed, or otherwise perform in the position listed on the background check request. An incomplete fitness determination must result in immediate termination, dismissal, or removal of the SI.

(d) A determination of ineligibility due to mandatory exclusion is not subject to appeal rights under OAR 125-007-0300, 407-007-0330, or 943-007-0501.

(3) Prohibitions under 42 USC 671(a)(20) under the State Plan for Foster Care and Adoption Assistance result in ineligibility for an SI.

(a) Section (3) of this rule applies to the following SIs:

(A) An SI who is an employee of a QE which is subject to Section 471(a)(20)(D) of the federal 2018 Family First Prevention Services Act and which receives title IV-E funds; and

(B) For child foster homes licensed by the Department's DD programs, or child foster or adoptive homes governed by OAR chapter 419 division 400 and the federal 2006 Adam Walsh Act:

(i) A foster parent or proctor foster parent;

(ii) An adoptive parent applicant or an approved adoptive parent;

(iii) A household member in an adoptive or foster home 18 years of age and over;

(iv) A household member in an adoptive or foster home under 18 years of age if there is reason to believe that the household member may pose a risk to children placed in the home.

(b) If BCU determines that an individual is subject to this rule and has an exclusion listed in 42 USC 671(a)(20)(A), BCU mustmake the determination of ineligibility due to mandatory exclusion. Exclusions include:

(A) Felony conviction consisting of:

(i) Child abuse or neglect;

(ii) Spousal abuse;

(iii) A crime against children (including child pornography);

(iv) A crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault or battery;

(B) If, within five years from the date of the final decision, a felony conviction of:

(i) Physical assault or battery; or

(ii) A drug-related offense.

(c) Under OAR 125-007-0260(2)(d), the determination of ineligibility due to mandatory exclusion is considered an incomplete fitness determination. A fitness determination with a weighing test is not required regardless of any other potentially disqualifying crimes or conditions the SI has. When a background check results in an incomplete fitness determination, the SI must not be allowed to work, volunteer, be employed, or otherwise perform in the position listed on the background check request. An incomplete fitness determination must result in immediate termination, dismissal, or removal of the SI.

(d) A determination of ineligibility due to mandatory exclusion is not subject to appeal rights under OAR 125-007-0300 or 943-007-0501.

Or. Admin. R. 407-007-0279

DHSD 5-2016, f. 6-10-16, cert. ef.6/15/2016; DHSD 9-2016, f. & cert. ef. 12/1/2016; DHSD 3-2017(Temp), f. & cert. ef. 3-15-17 thru 9-10-17; DHSD 6-2017, f. 6-30-17, cert. ef. 7/1/2017;DHSD 13-2018, temporary amend filed 06/29/2018, effective 07/01/2018 through 12/27/2018; DHSD 26-2018, temporary amend filed 09/20/2018, effective 09/20/2018 through 12/27/2018; DHSD 31-2018, amend filed 11/28/2018, effective 12/1/2018; DHSD 2-2020, amend filed 02/10/2020, effective 2/10/2020; DHS 7-2021, temporary amend filed 06/25/2021, effective 6/25/2021 through 12/21/2021; DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021; DHS 1-2023, amend filed 01/27/2023, effective 2/1/2023

Statutory/Other Authority: ORS 181A.195 & 409.050

Statutes/Other Implemented: ORS 181A.195