Or. Admin. R. 309-040-0400 - Inspections
(1) The Division
shall conduct an inspection of an AFH:
(a)
Prior to issuance of a license;
(b)
Upon receipt of an oral or written complaint of violations that threaten the
health, safety, or welfare of individuals; or
(c) Anytime the Division has probable cause
to believe that an AFH has violated a regulation or provision of these rules or
is operating without a license.
(2) The Division or CMHP may conduct
inspections of an AFH:
(a) Anytime such
inspections are authorized by these rules and any other time the Division or
CMHP considers it necessary to determine if an AFH is in compliance with these
rules or with conditions placed upon the license;
(b) To determine if cited deficiencies have
been corrected; and
(c) For the
purpose of monitoring of the individuals' care.
(3) State or local fire inspectors shall be
permitted access to enter and inspect the AFH regarding fire safety upon
request of the Division or CMHP.
(4) The Division and CMHP shall have full
access to examine AFH records and accounts, including individual records and
accounts, and to inspect the physical premises, including the buildings,
grounds, equipment, and any vehicles.
(5) The Division or CMHP staff shall be
permitted to interview the provider, resident manager, caregiver, and
individuals. Interviews are confidential conducted in private and are
confidential except as considered public record under ORS
430.763.
(6) Providers shall authorize resident
managers and substitute caregivers to permit entrance by the Division or CMHP
staff for the purpose of inspection and investigation.
(7) The Division or CMHP staff shall conduct
inspections with or without advance notice to the provider, staff, or an
individual of the AFH. The Division or CMHP may not give advance notice of any
inspection if notice might obstruct or seriously diminish the effectiveness of
the inspection or enforcement of these rules.
(8) If the Division or CMHP staff is not
permitted access or inspection, a search warrant may be obtained.
(9) The inspector shall respect the private
possessions and living area of individuals, providers, and caregivers while
conducting an inspection.
(10)
Completed reports on inspections, except for confidential information, shall be
available to the public upon written request to the Division or CMHP during
business hours.
(11) For
individuals receiving services authorized or funded by the Division, the
Division shall investigate allegations of abuse as defined in ORS
430.735 to
430.765.
(12) When abuse is alleged or death of an
individual has occurred and a law enforcement agency or the Division or its
designee has determined to initiate an investigation, the provider may not
conduct an internal investigation without prior authorization from the
Division. For the purposes of this section, an internal investigation is
defined as conducting interviews of the alleged victim, witness, the alleged
perpetrator, or any other persons who may have knowledge of the facts of the
abuse allegation or related circumstances; reviewing evidence relevant to the
abuse allegation, other than the initial report; or any other actions beyond
the initial actions of determining:
(a) If
there is reasonable cause to believe that abuse has occurred; or
(b) If the alleged victim is in danger or in
need of immediate protective services; or
(c) If there is reason to believe that a
crime has been committed; or
(d)
What, if any, immediate personnel actions must be taken.
(13) The Division or its designee shall
complete an abuse investigation and protective services report in accordance
with OAR 943-045-0250 through 0370.
(14) When the provider has been notified of
the completion of the abuse investigation, a provider may conduct an
investigation without Division approval to determine if any other personnel
actions are necessary.
(15) Upon
completion of the investigation report according to OAR 943-045-0320, the
sections of the report that are public records and not exempt from disclosure
under the public records law shall be provided to the appropriate provider. The
provider shall implement the actions necessary within the deadlines listed to
prevent further abuse as stated in the report.
(16) A provider may not retaliate against any
person who reports in good faith suspected abuse or against the individual with
respect to the report.
(17) In
accordance with ORS 430.755 any provider who
retaliates against any person because of a report of suspected abuse or neglect
may be liable according to 430.755, in a private action to that person for
actual damages and, in addition, a penalty in accordance with 443.775(10) not
withstanding any other remedy provided by law. The authority of the director to
impose civil penalties and the factors to be considered shall be in accordance
with 443.790.
(18) In accordance
with OAR 943-045-0340 Adverse Action, any adverse action creates a presumption
of retaliation if taken within 90 days of a report of abuse. For purposes of
this section, "adverse action" means any action taken by a community facility,
community program, or person involved in a report against the person making the
report or against the adult because of the report and includes but is not
limited to the following:
(a) Discharge or
transfer from the AFH except for clinical reasons;
(b) Discharge from or termination of
employment;
(c) Demotion or
reduction in remuneration for services; or
(d) Restriction or prohibition of access to
the community facility or its residents.
(19) Adverse action may also be evidence of
retaliation after 90 days even though the presumption no longer
applies.
Notes
Stat. Auth.: ORS 413.042
Stats. Implemented: ORS 443.705 - 443.825
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