Or. Admin. Code § 411-052-0005

Current through Register Vol. 63, No. 12, December 1, 2024

Section 411-052-0005 - Investigations and Inspections

(1) The LLA must conduct an in-person inspection of an AFH and all structures on the AFH property. The in-person inspection must be conducted:

(a) Before issuance of a license.

(b) Before the annual renewal of a license.

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

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

(2) The Department may conduct inspections:

(a) Any time such inspections are authorized by these rules and any other time the Department considers it necessary to determine if a home is in compliance with these rules or with conditions placed upon the license.

(b) To determine if cited violations have been corrected.

(c) For the purpose of routine monitoring of the residents' care.

(3) State or local fire inspectors must be permitted access to enter and inspect AFHs regarding fire safety upon the Department's request.

(4) The Department, the LLA, the investigative authority, the Oregon Health Authority (OHA), and the Centers for Medicare and Medicaid Services (CMS) have authority and must have full access to examine and copy facility and resident records, including, but not limited to, Residency Agreements, and resident account records, as applicable.

(5) The Department, LLA, investigative authority, OHA, and CMS staff have authority to interview the licensee, administrator, resident manager, other caregivers, and the residents. Interviews must be confidential and conducted privately.

(6) Licensees must authorize all staff to permit the Department, LLA, the investigative authority, OHA and CMS staff, for the purpose of inspection, investigation, and other duties within the scope of the inspector's or investigator's authority:

(a) Entrance to the AFH and any other structure on the premises; and

(b) Access to resident and facility records.

(7) The Department, LLA, the investigative authority, OHA, and CMS has authority to conduct inspections with or without advance notice to the licensee, staff, or the residents of the home. The Department, LLA, and CMS shall not give advance notice of any inspection if it is believed that notice might obstruct or seriously diminish the effectiveness of the inspection or enforcement of these rules. State personnel and representatives are required to show Department issued identification in compliance with the Department's October 09, 2020 policy.

(8) If the Department, LLA, investigative authority, OHA or CMS staff are not permitted access for inspection, a search warrant may be obtained.

(9) The inspector must respect the private possessions of the residents, licensee, and staff while conducting an inspection.

(10) ABUSE REPORTING. Abuse is prohibited. The facility employees and licensee may not permit, aid, or engage in abuse of residents. Abuse and suspected abuse must be reported in accordance with OAR 411-020-0020.

(a) MANDATORY REPORTING. The licensee and all facility employees are mandatory reporters and must immediately report abuse and suspected abuse, including events overheard or witnessed by observation to the investigative authority.

(b) LAW ENFORCEMENT AGENCY. The local law enforcement agency must be called first when the suspected abuse is believed to be a crime (e.g., rape, murder, assault, burglary, kidnapping, theft of controlled substances).

(11) IMMUNITY AND PROHIBITION OF RETALIATION.

(a) The licensee or administrator shall not interfere with a good faith disclosure of information by an employee or volunteer concerning the abuse or mistreatment of a resident in the adult foster home. The information that is shared may include the reporting of violations of licensing or certification requirements, criminal activity at the adult foster home, violations of state or federal laws or any practice that threatens the health and safety of a resident being made to:

(A) The Long-Term Care Ombudsman, the Department of Human Services, a law enforcement agency or other entity with legal or regulatory authority over the adult foster home; or

(B) A family member, guardian, friend or other person who is acting on behalf of the resident.

(b) Interfering with the disclosure of information could include the following measures:

(A) By training an employee or volunteer to sign a nondisclosure or similar agreement prohibiting the employee or volunteer from disclosing the information; or

(B) By taking actions or communicating to the employee or volunteer that the employee or volunteer may not disclose the information.

(c) The licensee or administrator shall not retaliate against any resident after the resident or someone acting on the resident's behalf has filed a complaint in any manner, including, but not limited to:

(A) Increasing or threatening to increase charges.

(B) Decreasing or threatening to decrease services.

(C) Withholding rights or privileges.

(D) Taking or threatening to take any action to coerce or compel the resident to leave the facility.

(E) Threatening to harass or abuse a resident in any manner.

(d) The licensee or administrator must ensure any complainant, witness, or employee of a facility is not subjected to retaliation by any caregiver, (including the caregiver's family and friends who may live in or frequent the AFH) for making a report, being interviewed about a complaint, or being a witness, including, but not limited to, restriction of access to the home or a resident or, if an employee, dismissal or harassment.

(e) Anyone who, in good faith, reports abuse or suspected abuse has immunity, as approved by law, from any civil liability that might otherwise be incurred or imposed with respect to the making or content of an abuse complaint.

(12) Immunity under this rule does not protect self-reporting licensees from liability for the underlying conduct that is alleged in the complaint.

(13) Any person who believes these rules have been violated may file a complaint with the Department, the LLA, or the investigative authority.

(14) The Department or the investigative authority shall investigate complaints in accordance with the adult protective services rules in OAR chapter 411, division 20.

(15) Immediate protection shall be provided for the residents by the Department, the LLA, or the investigative authority, as necessary, regardless of whether the investigative report is completed. The licensee or administrator must immediately cease any practice that places a resident at risk of serious harm.

(16) A copy of the entire investigation report shall be sent to the Department upon completion of the investigation report.

(17) PUBLIC FILE. Comply with the Department's June 30, 2019, Public File policy for maintaining current information on all licensed adult foster homes. The Department's Public File policy can be found at the Local Licensing Authority.

Or. Admin. Code § 411-052-0005

APD 19-2019, adopt filed 06/20/2019, effective 7/1/2019; APD 50-2019, temporary amend filed 12/19/2019, effective 01/01/2020 through 06/28/2020; APD 22-2020, amend filed 06/16/2020, effective 6/24/2020; APD 60-2021, amend filed 12/23/2021, effective 1/1/2022

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 124.050, 124.060, 124.075, 409.050, 410.070, 413.085, 443.001 - 443.004, 443.705 - 443.825, 443.875 & 443.991