Section 443.738 - Educational standards for providers, managers and caregivers; rules; exception; duties of providers(1) Except as provided in subsection (3) of this section, all providers, resident managers and substitute caregivers for adult foster homes shall satisfactorily meet all educational requirements established by the licensing agency. After consultation with representatives of providers, educators, residents' advocates and the Long Term Care Ombudsman or the Residential Facilities Ombudsman, the licensing agency shall adopt by rule standards governing the educational requirements. The rules shall require that a person may not provide care to any resident prior to acquiring education or supervised training designed to impart the basic knowledge and skills necessary to maintain the health, safety and welfare of the resident. Each provider shall document compliance with the educational requirements for persons subject to the requirements.(2) The rules required under subsection (1) of this section shall include but need not be limited to the following: (a) A requirement that, before being licensed, a provider successfully completes training that satisfies a defined curriculum, including demonstrations and practice in physical caregiving, screening for care and service needs, appropriate behavior toward residents with physical, cognitive and mental disabilities and issues related to architectural accessibility;(b) A requirement that a provider pass a test before being licensed or becoming a resident manager. The test shall evaluate the ability to understand and respond appropriately to emergency situations, changes in medical conditions, physicians' orders and professional instructions, nutritional needs, residents' preferences and conflicts; and(c) A requirement that, after being licensed, a provider or resident manager successfully completes continuing education as described in ORS 443.742.(3) After consultation with representatives of providers, educators, residents' advocates and the Long Term Care Ombudsman or the Residential Facilities Ombudsman, the licensing agency may adopt by rule exceptions to the training requirements of subsections (1) and (2) of this section for persons who are appropriately licensed medical care professionals in Oregon or who possess sufficient education, training or experience to warrant an exception. The licensing agency may not make any exceptions to the testing requirements.(4) The licensing agency may permit a person who has not completed the training or passed the test required in subsection (2)(a) and (b) of this section to act as a resident manager until the training and testing are completed or for 60 days, whichever is shorter, if the licensing agency determines that an unexpected and urgent staffing need exists. The licensed provider must notify the licensing agency of the situation and demonstrate that the provider is unable to find a qualified resident manager, that the person has met the requirements for a substitute caregiver for the adult foster home and that the provider will provide adequate supervision.(5) Providers shall serve three nutritionally balanced meals to residents each day. A menu for the meals for the coming week shall be prepared and posted weekly.(6) Providers shall make available at least six hours of activities each week which are of interest to the residents, not including television or movies. The licensing agency shall make information about resources for activities available to providers upon request. Providers or substitute caregivers shall be directly involved with residents on a daily basis.(7) Providers shall give at least 30 days' written notice to the residents, and to the legal representative, guardian or conservator of any resident, before selling, leasing or transferring the adult foster home business or the real property on which the adult foster home is located. Providers shall inform real estate licensees, prospective buyers, lessees and transferees in all written communications that the license to operate an adult foster home is not transferable and shall refer them to the licensing agency for information about licensing.(8) If a resident dies or leaves an adult foster home for medical reasons and indicates in writing the intent to not return, the provider may not charge the resident for more than 15 days or the time specified in the provider contract, whichever is less, after the resident has left the adult foster home. The provider has an affirmative duty to take reasonable actions to mitigate the damages by accepting a new resident. However, if a resident dies or leaves an adult foster home due to neglect or abuse by the provider or due to conditions of imminent danger to life, health or safety, the provider may not charge the resident beyond the resident's last day in the home. The provider shall refund any advance payments within 30 days after the resident dies or leaves the adult foster home.(9) Chemical and physical restraints may be used only after considering all other alternatives and only when required to treat a resident's medical symptoms or to maximize a resident's physical functioning. Restraints may not be used for discipline of a resident or for the convenience of the adult foster home. Restraints may be used only as follows:(a) Psychoactive medications may be used only pursuant to a prescription that specifies the circumstances, dosage and duration of use.(b) Physical restraints may be used only pursuant to a qualified practitioner's order that specifies the type, circumstances and duration of use in accordance with rules adopted by the licensing agency. The rules adopted by the licensing agency relating to physical restraints shall include standards for use and training.(10) If the physical characteristics of the adult foster home do not encourage contact between caregivers and residents and among residents, the provider shall demonstrate how regular positive contact will occur. Providers may not place residents who are unable to walk without assistance in a basement, split-level, second story or other area that does not have an exit at ground level. Nonambulatory residents shall be given first floor rooms.(11)(a) The provider may not transfer or discharge a resident from an adult foster home unless the transfer or discharge is necessary for medical reasons, for the welfare of the resident or for the welfare of other residents, or due to nonpayment. In such cases, the provider shall give the resident written notice as soon as possible under the circumstances.(b) The provider shall give the resident and the resident's legal representative, guardian or conservator written notice at least 30 days prior to the proposed transfer or discharge, except in a medical emergency including but not limited to a resident's experiencing an increase in level of care needs or engaging in behavior that poses an imminent danger to self or others. In such cases, the provider shall give the resident written notice as soon as possible under the circumstances.(c) The resident has the right to an administrative hearing prior to an involuntary transfer or discharge. If the resident is being transferred or discharged for a medical emergency, or to protect the welfare of the resident or other residents, as defined by rule, the hearing must be held within seven days of the transfer or discharge. The provider shall hold a space available for the resident pending receipt of an administrative order. ORS 441.605(4) and the rules thereunder governing transfer notices and hearings for residents of long term care facilities shall apply to adult foster homes.(12) The provider may not include any illegal or unenforceable provision in a contract with a resident and may not ask or require a resident to waive any of the resident's rights.(13) Any lessor of a building in which an adult foster home is located may not interfere with the admission, discharge or transfer of any resident in the adult foster home unless the lessor is a provider or coprovider on the license.Amended by 2017 Ch. 441,§ 27, eff. 6/22/2017.1991 c.960 §3; 1995 c.180 §3; 1995 c.667 §11; 2001 c.300 §70; 2003 c. 14, § 260; 2005 c. 226, § 1; 2009 c. 595, § 791g