Or. Admin. Code § 411-049-0160 - [Effective 9/27/2024] Variances

(1) An applicant, licensee, or administrator may request a variance to the provisions of these rules. The variance request must be in writing and must include clear and convincing evidence that:

(a) The requested variance does not jeopardize the care, health, welfare, or safety of the residents;

(b) All of the residents' needs shall be met; and

(c) All residents, in addition to other occupants in the home, may be evacuated in three minutes or less.

(2) VARIANCES NOT ALLOWED. Except for section (1) of this rule, no variance shall be granted by the LLA from a regulation or provision of the rules pertaining to:

(a) Resident capacity as described in OAR 411-049-0105.

(b) Minimum age of licensee and any caregivers as described in OAR 411-049-0125, except as stated in OAR 411-049-0150(3).

(c) The training requirements of a licensee and all other caregivers, except as allowed for:

(A) Provisional licenses as described in OAR 411-049-0105(14)(b);

(B) When a substitute caregiver holds an Oregon health care professional license as described in OAR 411-049-0125; or

(C) A licensee designated as a corporate entity must obtain a variance to the training requirements as described in OAR 411-049-0125(2)(a) - (2)(e).

(d) Standards and practices for care and services as described in OAR Chapter 411, Division 51.

(e) In-person inspections of the facility as described in OAR 411-052-0005.

(f) Background checks as described in OAR 411-049-0120.

(3) The LLA shall not grant a variance request to any rule that is inconsistent with Oregon Revised Statutes or 42 CFR 441.301(c)(2) (xiii) and 42 CFR 441.530(a)(1)(vi) (See OAR 411-049-0160(4)).

(4) The LLA shall not grant a variance request related to fire and life safety without prior consultation with the Department.

(5) In deciding to grant a variance, the LLA must consider the licensee's history of compliance with rules governing AFHs or other long-term care facilities for adults who are older or adults with physical disabilities in Oregon and any other jurisdiction, if appropriate. The LLA must determine that the variance is consistent with the intent and purpose of these rules before granting the variance. The LLA must respond, in writing, within 30 days of receiving a request for a variance. The written response must include the frequency of renewal.

(6) A variance is not effective until granted in writing by the LLA. Variances are reviewed pursuant to these rules. If applicable, the licensee must re-apply for a variance at the time of license renewal, or more often if determined necessary by the LLA.

(7) In seeking a variance, the burden of proof that the requirements of these rules have been met is upon the applicant or licensee.

(8) If a variance to any provision of these rules is denied, the applicant or licensee may request a meeting with the LLA.

Notes

Or. Admin. Code § 411-049-0160

APD 19-2019, adopt filed 06/20/2019, effective 7/1/2019; APD 61-2021, amend filed 12/23/2021, effective 1/1/2022; APD 13-2024, temporary amend filed 03/28/2024, effective 4/1/2024 through 9/27/2024

Statutory/Other Authority: ORS 409.050, 410.070, 413.085, 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, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991