1. (1) A provider or applicant may apply to the Division for a variance from a provision of these rules using the Division’s Variance Request form. The provider must provide clear and convincing evidence the variance does not jeopardize the health, life, or safety of the residents and would not violate or compromise an applicable ORS.

2. (2) The Division may not grant a variance from a regulation or provision of these rules pertaining to:

   1. (a) License capacity of the AFH;
   2. (b) Minimum age of provider, resident manager and substitute caregivers;
   3. (c) Background checks;
   4. (d) Training requirements of the provider, resident manager and substitute caregivers
   5. (e) Standards and practices for care and services;
   6. (f) Inspections of the AFH;
   7. (g) Civil, legal, and human rights; and
   8. (h) Inspection of the public files.
3. (3) The Division may not grant a variance related to fire and life safety without prior consultation with the local fire authority or designee.
4. (4) The Division may not grant a variance related to Oregon Revised Statute 443.705 through 443.825.

5. (5) A provider or applicant may apply to the Division for a variance specific to each resident under ORS 443.725, subject to the following requirements:

   1. (a) The variance is effective only for the specific resident who has been assessed and meets the safety requirements prescribed by the Division. This assessment must become part of the resident’s RCP;
   2. (b) A variance allowing a specific resident to be in the AFH alone may not exceed four hours in a 24-hour period;
   3. (c) No variance allows a provider to leave an resident alone in the AFH between the hours of 10 p.m. to 6 a.m.;
   4. (d) No variance allows more than one resident to be alone in the AFH at any one time; and
   5. (e) Twenty-four hour per day care must continue for any resident that does not qualify to be in the AFH alone.
6. (6) The Division must consider the provider’s history of compliance with the rules governing AFHs and other programs serving residents with mental health or substance abuse issues.
7. (7) Variances will be granted or denied in writing. Variances are not effective until granted in writing by the Division. All variances granted must be reviewed for continued approval with each license renewal under OAR 309-040-0345. A variance granted to one AFH provider or a variance granted regarding a specific resident does not constitute a precedent for any other AFH provider, applicant, or resident.
8. (8) The AFH provider or applicant may appeal the denial of a variance request by submitting a request for reconsideration in writing to the Division. The Division must make a decision on the appeal within 30 days of receipt of the appeal. The decision of the Division will be final.

Statutory/Other Authority

ORS 413.042

Statutes/Other Implemented

ORS 443.705 - 443.825

History

BHS 5-2025, amend filed 02/28/2025, effective 03/01/2025
MHS 9-2017, f. 6-29-17, cert. ef. 7-1-17
MHS 3-2017(Temp), f. 3-3-17, cert. ef. 3-4-17 thru 8-30-17
MHS 14-2016(Temp), f. 9-6-16, cert. ef. 9-7-16 thru 3-3-17
MHS 12-2007, f. & cert. ef. 8-31-07
MHS 2-2007(Temp), f. & cert. ef. 5-4-07 thru 10-31-07
MHD 3-2005, f. & cert. ef. 4-1-05, Renumbered from 309-040-0035
MHD 1-1992, f. & cert. ef. 1-7-92
MHD 6-1986, f. & cert. ef. 7-2-86
MHD 19-1985(Temp), f. & ef. 12-27-85