2013 ORS § 441.336¹
Accounting by temporary manager
  • deficiencies
  • lien

(1) Within 30 days following the appointment of a temporary manager under ORS 441.333 (Appointment of temporary manager), and every 30 days thereafter and within 30 days after the termination of the period of temporary management, the temporary manager shall give the Department of Human Services and the licensee a complete accounting of all property that the temporary manager has taken possession, all funds collected and all expenses incurred by the temporary manager on behalf of the facility and the expenditure of any funds withdrawn from the Facility Fund established under ORS 441.303 (Establishment of Facility Fund) to pay those expenses.

(2) If a facilitys income or assets are insufficient to meet the expenses of a temporary manager in the operation of the facility, the department may withdraw funds from the Facility Fund established under ORS 441.303 (Establishment of Facility Fund) to pay those expenses.

(3) If the department withdraws funds from the Facility Fund established under ORS 441.303 (Establishment of Facility Fund) to pay the expenses of the temporary manager and compensation of any employees or agents of the temporary manager pursuant to ORS 441.333 (Appointment of temporary manager), the licensee shall be liable to the department for the deficiency.

(4) The department shall provide an opportunity to contest the deficiency in accordance with ORS chapter 183. The department shall serve a notice of deficiency upon the licensee in accordance with ORS 183.415 (Notice of right to hearing) (2). The notice shall conform to ORS 183.415 (Notice of right to hearing) and shall explain:

(a) The amount of the deficiency; and

(b) That the department may have a lien for the amount of the deficiency upon any real property and other beneficial interest, direct or indirect, of the licensee, upon any fixtures, equipment or goods used in the operation of the facility and upon the proceeds of any conveyance of such property or interest by the licensee within the 12 months prior to the appointment of the temporary manager.

(5) The department shall have a lien for any deficiency established under subsection (4) of this section upon any real property and other beneficial interest, direct or indirect, of the licensee, upon any fixtures, equipment or goods used in the operation of the facility and upon the proceeds of any conveyance of such property or interest by the licensee in the 12 months prior to the appointment of the temporary manager.

(6) The department shall conduct any hearing under this section as a contested case hearing in accordance with ORS chapter 183 and the rules of the department. The department may serve the final order without serving a proposed order. The only issues to be decided in the hearing are:

(a) The amount of the deficiency; and

(b) Whether the expenses incurred by the temporary manager are reasonable.

(7) The lien authorized by subsection (5) of this section is prior to any lien or other interest that arises subsequent to the appointment of a temporary manager, except for a construction lien arising out of work begun before the appointment and continued with the express consent of the temporary manager.

(8) The lien provided in subsection (5) of this section may be recorded in the County Clerk Lien Record maintained under ORS 205.130 (Recording duties of county clerk).

(9) Income received by the temporary manager on behalf of the facility and not applied to the operating expenses of the facility and any deficiency recovered by the department under this section shall be used to reimburse the Facility Fund established under ORS 441.303 (Establishment of Facility Fund) for any withdrawal of funds authorized by this section. [2009 c.539 §16]

Note: See note under 441.331 (Definition of facility for ORS 441.331 to 441.341).