Department of Human Services
Aging and People with Disabilities and Developmental Disabilities - Chapter 411
Division 51
ADULT FOSTER HOMES FOR OLDER ADULTS OR ADULTS WITH PHYSICAL DISABILITIES - STANDARDS OF CARE
411-051-0105
Resident’s Rights and Protections
(1) RESIDENT'S BILL OF RIGHTS AND FREEDOMS. The licensee, AFH occupants, and employees of the home must not violate these rights and must help the residents exercise them. The Resident’s Bill of Rights and Freedoms provided by the Department must be explained and a copy given to each resident at the time of admission. The Resident’s Bill of Rights and Freedoms states each resident has the right to:
(a) Be treated as an adult with respect and dignity.
(b) Be informed of all resident rights and all house policies as written in the Residency Agreement.
(c) Be encouraged and assisted to exercise constitutional and legal rights, including the right to vote.
(d) Be informed of his or her medical condition and the right to consent to or refuse treatment.
(e) Receive appropriate care, services, and prompt medical care as needed.
(f) To be given informed consent before any nontherapeutic examination, observation or treatment is provided.
(g) Be free from abuse.
(h) Complete privacy when receiving treatment or personal care.
(i) Associate and communicate privately with any person of choice and send and receive personal mail unopened.
(j) Have access to, and participate in, activities of social, religious, and community groups.
(k) Have medical and personal information kept confidential.
(l) Keep and use a reasonable amount of personal clothing and belongings, and to have a reasonable amount of private, secure storage space.
(m) Be free from chemical and physical restraints except as ordered by a physician or other qualified practitioner and consented to by the resident or their legal guardian.
(A) Restraints are used only for medical reasons, to maximize a resident's physical functioning, and after other alternatives have been tried and may not be used for discipline or convenience.
(B) When the right to freedom from restraints must be limited due to a threat to the health and safety of an individual or others, an individually-based limitation is required according to (3) of this rule and OAR 411-004-0040.
(n) Manage his or her own financial affairs unless legally restricted.
(o) Be free from financial exploitation. The licensee may not charge or ask for application fees or non-refundable deposits or solicit, accept, or receive money or property from a resident other than the amount agreed to for services.
(p) A written agreement regarding services to be provided and the rates to be charged. The licensee must give 30 days' written notice before any change in the rates or the ownership of the home.
(q) Not be transferred or moved out of the AFH without 30 calendar days' written notice and an opportunity for a hearing. A licensee or administrator may transfer a resident only for medical reasons, for the welfare of the resident or other residents, or for nonpayment.
(r) A safe and secure environment.
(s) Be free of discrimination in regard to race, color, national origin, gender, sexual orientation, or religion.
(t) Make suggestions or complaints without fear of retaliation.
(u) Be free of discrimination regarding the execution of an Advance Directive, Physician's Order for Life-Sustaining Treatment (POLST), or Do Not Resuscitate (DNR) orders.
(2) LGBTQIA2S+ PROTECTIONS. A licensee, administrator, resident manager, floating resident manager, shift caregiver or substitute caregiver of the AFH may not take any of the following actions based in whole or in part on a resident’s actual or perceived sexual orientation, gender identity, gender expression or human immunodeficiency virus status:
(a) Deny admission to an AFH, transfer or refuse to transfer a resident within an AFH or to another home or discharge or evict a resident from an AFH;
(b) Deny a request by a resident to choose the resident’s roommate, when a resident is sharing a room;
(c) Refuse to assign a room to a transgender or other LGBTQIA2S+ resident other than in accordance with the resident’s gender identity, unless at the request of the resident or if required by federal law;
(d) Prohibit a resident from using, or harass a resident who seeks to use or does use, a restroom that is available to other individuals of the same gender identity as the resident, regardless of whether the resident is making a gender transition, has taken or is taking hormones, has undergone gender affirmation surgery or presents as gender nonconforming. Harassment includes, but is not limited to, requiring a resident to show documentation of gender identity in order to gain entrance to a restroom or other area of an AFH that is available to other individuals of the same gender identity as the resident;
(e) Repeatedly and willfully refuse to use a resident’s name or pronouns after being reasonably informed of the resident’s name or pronouns;
(f) Deny a resident the right to wear or be dressed in clothing, accessories or cosmetics, or to engage in grooming practices, that are permitted to any other resident;
(g) Restrict a resident’s right to associate with other residents or with visitors, including the resident’s right to consensual sexual relations or to display physical affection, unless the restriction is uniformly applied to all residents in a nondiscriminatory manner;
(h) Deny or restrict medical or nonmedical care that is appropriate to a resident’s organs and bodily needs, or provide medical or nonmedical care that, to a similarly situated, reasonable person, unduly demeans the resident’s dignity or causes avoidable discomfort;
(i) Fail to accept a resident’s verbal or written attestation of the resident’s gender identity or require a resident to provide proof of the resident’s gender identity using any form of identification;
(j) Fail to take reasonable actions, within the AFH’s control, to prevent discrimination or harassment when the facility knows or should have known about the discrimination or harassment;
(k) Refuse or willfully fail to provide any service, care or reasonable accommodation to a resident; or
(l) Refuse or willfully fail to provide any service, care or reasonable accommodation to a potential resident applying for services or care.
(3) HCBS FREEDOMS. Residents have the following rights and freedoms authorized by 42 CFR 441.301(c)(4) and 42 CFR 441.530(a)(1):
(a) To live under a legally enforceable Residency Agreement with protections substantially equivalent to landlord-tenant laws.
(b) The freedom and support to access food at any time.
(c) To have visitors of the resident's choosing at any time.
(d) To privacy in the resident's bedroom, and to have a lockable door in the resident's bedroom, which may be locked by the resident.
(e) To choose a roommate when sharing a bedroom.
(f) To furnish and decorate the resident's bedroom according to the Residency Agreement.
(g) The freedom and support to control the resident's schedule and activities.
(4) INDIVIDUALLY-BASED LIMITATIONS. Effective July 1, 2019 and no later than June 30, 2020, a limitation to (1)(l) of this rule and any freedom in section (2)(b) through (g) of this rule must be supported by a specific assessed need due to a threat to the health and safety of the resident or others. All individually-based limitations (IBL) considered must be documented on the Department-approved consent form.
(a) For Medicaid-eligible residents, the person-centered service plan must be developed as outlined in OAR 411-051-0120.
(b) For Medicaid-eligible residents, the person-centered service plan coordinator must authorize the IBL and the individual, or their representative, must consent to the limitation.
(c) The licensee or administrator must incorporate and document all applicable elements identified in OAR 411-004-0040, including:
(A) The specific and individualized assessed need justifying the limitation.
(B) The positive interventions and supports used before imposing a limitation.
(C) Less intrusive methods that have been tried but did not work.
(D) A clear description of the condition that is directly proportionate to the specific assessed need.
(E) Regular reassessment and review to measure the ongoing effectiveness of the limitation.
(F) Established time limits for periodic review of the limitation to determine if the limitation should be terminated or remains necessary. The limitation must be reviewed at least annually.
(G) The informed consent of the resident or, as applicable, the legal representative of the resident, including any discrepancy between the wishes of the resident and the consent of the legal representative.
(H) An assurance that the interventions and support do not cause harm to the individual.
(d) Limitations are not transferable between care settings. Continued need for any limitation at a new care setting must comply with the requirements in these rules.
(5) RESIDENT CARE.
(a) Care and supervision of residents must be in a homelike atmosphere. The training of the licensee and caregivers and care and supervision of residents must be appropriate to the age, care needs, and conditions of the residents in the home. Additional staff may be required if, for example, day care individuals are in the home or if necessary to safely evacuate the residents and all occupants from the home as required by OAR 411-050-0725.
(b) If a resident has a medical regimen or personal care plan prescribed by a licensed health care professional, the licensee or administrator must cooperate with the plan and ensure the plan is implemented as instructed.
(c) NOTIFICATION. The licensee or administrator must notify emergency personnel, the resident's physician, nurse practitioner, physician assistant, registered nurse, family representative, and case manager, as applicable, under the following circumstances:
(A) EMERGENCIES (MEDICAL, FIRE, POLICE). In the event of an emergency, the licensee or caregiver with the resident at the time of the emergency must first call 911 or the appropriate emergency number for the home's community. This does not apply to a resident with a medical emergency who practices Christian Science.
(i) If a resident is receiving hospice services, the caregivers must follow the written instructions for medical emergencies from the hospice nurse.
(ii) If a resident has a completed Physician's Orders for Life-Sustaining Treatment (POLST) or other legal documents, such as an Advance Directive or Do Not Resuscitate (DNR) order, copies of the documents must be made available to the emergency personnel when they arrive.
(B) HOSPITALIZATION. In the event the resident is hospitalized.
(C) HEALTH STATUS CHANGE. When the resident's health status or physical condition changes.
(D) DEATH. Upon the death of the resident.
(d) The licensee shall not inflict, or tolerate to be inflicted, abuse of any resident, as defined in OAR 411-020-0002.
(e) REASONABLE PRECAUTIONS. The licensee must exercise reasonable precautions against any conditions that may threaten the health, safety, or welfare of the residents.
(f) A qualified caregiver must always be present and available at the home when a resident is in the home. A resident may not be left in charge in lieu of a caregiver.
(g) DIRECT INVOLVEMENT OF CAREGIVERS. The licensee or caregivers must be directly involved with the residents daily. If the physical characteristics of the AFH do not encourage contact between the caregivers and residents and among residents, the licensee must demonstrate how regular positive contact occurs.
(6) ACTIVITIES. The licensee or administrator must make available at least six hours of activities per week, not including television and movies, that are of interest to the residents. Information regarding activity resources is available from the LLA. Activities must be oriented to individual preferences as indicated in the resident's care plan. (See OAR 411-051-0115). Documentation of the activities offered to each resident and the resident's participation in those activities must be recorded in the resident's records.
(7) RESIDENT MONEY. If the licensee or administrator manages or handles a resident's money, a separate account record must be maintained in the resident's name. The licensee or administrator may not under any circumstances commingle, borrow from, or pledge any of a resident's funds. The licensee or administrator may not act as a resident's guardian, conservator, trustee, or attorney-in-fact unless related by birth, marriage, or adoption to the resident as follows: parent, child, brother, sister, grandparent, grandchild, aunt, uncle, niece, or nephew. Nothing in this rule may be construed to prevent the licensee or the licensee's employee from acting as a representative payee for the resident. (See also OAR 411-020-0002).
(a) Personal incidental funds (PIF) for individuals eligible for Medicaid services must be used at the discretion of the individual for such things as clothing, tobacco, and snacks (not part of daily diet).
(b) The licensee and other caregivers may not accept gifts from the residents through undue influence or accept gifts of substantial value. Caregivers and family members of the caregivers may not accept gifts of substantial value or loans from the resident or the resident’s family. The licensee or other caregivers may not influence, solicit from or suggest to any residents or resident’s representatives that the residents or the resident’s representatives give the caregiver or the caregiver’s family money or property for any purpose.
(c) The licensee may not subject the resident or the resident's representative to unreasonable rate increases.
(d) The licensee and other caregivers may not loan money to the residents.
Statutory/Other Authority: ORS 127.520, 409.050, 410.070, 413.085, 441.122, 441.373, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775 & 443.790
Statutes/Other Implemented: ORS 409.050, 410.070, 413.085, 441.112, 441.114, 441.373, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991
History:
APD 15-2024, temporary amend filed 03/28/2024, effective 04/01/2024 through 09/27/2024
APD 23-2019, minor correction filed 07/01/2019, effective 07/01/2019
APD 19-2019, adopt filed 06/20/2019, effective 07/01/2019