Or. Admin. Code § 411-360-0210

Current through Register Vol. 63, No. 11, November 1, 2024

Section 411-360-0210 - Inspections and Abuse Investigations

(1) The Department conducts an inspection of an AFH-DD:

(a) Prior to the issuance of an AFH-DD license;

(b) Prior to the annual renewal of an AFH-DD license;

(c) Upon receipt of an oral or written complaint of violations that threaten the health, safety, or welfare of individuals; or

(d) Anytime the Department has probable cause to believe that an AFH-DD violated a regulation or provision of these rules or is operating without an AFH-DD license.

(2) The Department may conduct inspections of an AFH-DD:

(a) Anytime inspections are authorized by these rules and any other time the Department considers an inspection necessary to determine if an AFH-DD is in compliance with these rules or with conditions placed upon the license of the AFH-DD;

(b) To determine if cited deficiencies have been corrected; and

(c) For the purpose of monitoring an individuals' care and services.

(3) State or local fire inspectors must be permitted access to inspect an AFH-DD for fire safety upon request of the Department.

(4) Department staff must have full access and authority to:

(a) Examine the physical premises of the AFH-DD including the buildings, grounds, equipment, and any vehicles; and

(b) Examine and copy facility, individual, and account records (as applicable).

(5) Department staff has authority to interview the provider, resident manager, caregivers, and individuals. Interviews are conducted in private and are confidential except as considered public record under ORS 430.763.

(6) Providers must authorize resident managers and substitute caregivers to permit entrance by Department staff for the purpose of inspection and investigation.

(7) Department staff has authority to conduct inspections with or without advance notice to the provider, substitute caregiver, or an individual of the AFH-DD. The Department may not give advance notice of any inspection if the Department believes that advance notice may obstruct or seriously diminish the effectiveness of the inspection or enforcement of these rules.

(8) The inspector must respect the private possessions and living area of individuals, providers, and caregivers while conducting an inspection.

(9) A copy of the inspection report must be given to the licensee within 10 working days of completion of the final report.

(10) Completed reports on inspections, except for confidential information, are available to the public during business hours, upon request of the Department.

(11) ABUSE INVESTIGATIONS.

(a) The Department investigates allegations of abuse as defined in OAR 419-100-0010 for individuals receiving services authorized or funded by the Department.

(b) When abuse is alleged or death of an individual has occurred and a law enforcement agency or the Department has determined to initiate an abuse investigation, the provider may not conduct an internal investigation without prior authorization from the Department. For the purpose of this section, an internal investigation is defined as:

(A) Conducting interviews of the alleged victim, witness, the accused person, or any other person who may have knowledge of the facts of the abuse allegation or related circumstances;

(B) Reviewing evidence relevant to the abuse allegation other than the initial report; or

(C) Any other actions beyond the initial actions of determining:

(i) If there is reasonable cause to believe that abuse has occurred;

(ii) If the alleged victim is in danger or in need of immediate protective services;

(iii) If there is reason to believe that a crime has been committed; and

(iv) What, if any, immediate personnel actions must be taken.

(c) When an abuse investigation has been initiated, the Department must provide notice to the provider according to OAR 419-100-0040.

(d) The Department conducts investigations as described in OAR chapter 419, division 100.

(e) When an abuse investigation has been completed, the outcome of the Abuse Investigation and Protective Services Report is provided by the Department according to OAR 419-100-0080.

(f) NOTIFICATION OF SUBSTANTIATED ABUSE.

(A) When a provider receives notification of a substantiated allegation of abuse, the provider must provide immediate written notification:

(i) To the person found to have committed abuse;

(ii) Each individual of the AFH-DD;

(iii) Each individual's services coordinator; and

(iv) Each individual's legal representative.

(B) The provider's written notification of a substantiated allegation of abuse must include:

(i) The type of abuse as defined in OAR 419-100-0010;

(ii) When the allegation was substantiated; and

(iii) How to request a copy of the Abuse Investigation and Protective Services Report.

(g) When a provider has been notified of the completion of the abuse investigation, a provider may conduct an internal investigation to determine if any other personnel actions are necessary.

(h) According to OAR 419-100-0100, the sections of the Abuse Investigation and Protective Services Report that are public records and not exempt from disclosure under the public records law must be provided to the provider upon completion of the Report. The provider must implement the actions necessary within the deadlines listed to prevent further abuse as stated in the Report.

(i) RETALIATION. A provider may not retaliate against any person who reports in good faith suspected abuse, or against the individual with respect to the report. An accused person may not self-report solely for the purpose of claiming retaliation.

(A) According to ORS 430.755, any provider who retaliates against any person because of a report of suspected abuse or neglect is liable in a private action to that person for actual damages and, in addition, is subject to a penalty up to $1,000, not withstanding any other remedy provided by law.

(B) Any adverse action creates a presumption of retaliation if taken within 90 days of a report of abuse. For the purpose of this section, "adverse action" means any action taken by a community facility, community program, or person involved in a report of suspected abuse against the person making the report or against the individual because of the report. Adverse action may include but is not limited to:

(i) Discharge or transfer from the AFH-DD, except for clinical reasons;

(ii) Discharge from or termination of employment;

(iii) Demotion or reduction in remuneration for services; or

(iv) Restriction or prohibition of access to the AFH-DD or the individuals served by the AFH-DD.

(C) Adverse action may also be evidence of retaliation after 90 days even though the presumption of retaliation no longer applies.

Or. Admin. Code § 411-360-0210

SPD 3-2005, f. 1-10-05, cert. ef 2-1-05; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 13-2010, f. 6-30-10, cert. ef. 7-1-10; SPD 34-2013, f. & cert. ef. 9-27-13; APD 40-2024, minor correction filed 07/08/2024, effective 7/8/2024

Statutory/Other Authority: ORS 409.050, 410.070, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.765, 443.767, 443.775 & 443.790

Statutes/Other Implemented: ORS 443.705 - 443.825