Within 60 days of receipt by the Department of the
investigation report, the Department shall issue a letter of determination.
CONTENT. The letter of
(a) Explain the nature
of each allegation;
the date and time of each occurrence;
(c) For each allegation, include a
determination of whether the allegation is substantiated, unsubstantiated, or
unable to substantiate;
each substantiated allegation, state whether the violation was abuse or another
(e) For each
substantiated allegation of abuse, explain the Department's determination of
(f) Include a copy
of the complaint investigation report;
(g) State that the complainant, any
individual found responsible for abuse, and the facility have 10 days to
provide additional or different information; and
(h) Explain, when applicable, if sanctions
(e.g., civil penalty, license revocation) are pursued, a formal appeal process
shall be available.
APPEAL RIGHTS, NURSING ASSISTANT. The letter of determination, in cases of
substantiated abuse by a nursing assistant, shall explain the following:
(a) The Department's intent to enter the
finding of abuse into the Nursing Assistant Registry;
(b) The nursing assistant may provide
additional information for inclusion in the Nursing Assistant Registry if
provided within 10 days;
Nursing Assistant Registry;
The nursing assistant has 10 days to respond in writing with different or
additional information, 30 days to request in writing a contested case hearing
as provided in ORS 183.411 to
183.470, and the consequences of
failure to respond; and
(e) If the
opportunity to request a contested case hearing expires without a request for
hearing by the nursing assistant, the nursing assistant shall be found
responsible for the abuse and the finding shall be entered in the Nursing
(a) The letter of determination
shall be distributed to the facility, the complainant (if known), and the local
APD or Type B AAA office;
letter of determination shall be sent by certified mail or delivered in person
to any nursing assistant found responsible for abuse. In the case of a nursing
assistant, notice sent to the nursing assistant's last known address is
sufficient to meet the requirements of this rule;
(c) The letter of determination shall also be
mailed to any health-related board or agency that certified or licensed an
individual determined to be responsible for abuse. However, if the party
determined to be responsible is a nursing assistant, the letter may not be
mailed to the State Board of Nursing until the nursing assistant has exhausted
all his or her appeal rights; and
(d) A copy of the letter of determination
shall be placed in the Department's facility complaint file.
(a) The Department may reinvestigate a
complaint, issue a revised letter of determination, or both if the Department
determines further information provided by the complainant, accused individual,
or facility merits such action.
(b) If the Department issues a revised letter
of determination, the letter shall be distributed to all individuals identified
in section (3) of this rule.
FAILURE TO REQUEST HEARING OR TO APPEAR.
(a) If the nursing assistant fails to request
a contested case hearing in writing within 30 days of the letter of
determination, or if the nursing assistant scheduled to attend the hearing
fails to attend, the Department shall affirm the letter of determination and
notify the State Board of Nursing of the Department's finding. The abuse
finding shall be entered into the Nursing Assistant Registry.
If the nursing assistant is scheduled to
appear at a contested case hearing, but fails to attend at the scheduled time,
or within 15 minutes thereafter, the nursing assistant shall be considered to
have waived the right to a hearing. The hearing may be rescheduled if:
(A) A written request to reschedule the
hearing is received by the Department within 10 days after the scheduled
(B) The causes for
not attending at the scheduled time for the hearing and for not requesting a
postponement of the hearing before the hearing were beyond the control of the
(6) JUDICIAL REVIEW. The nursing assistant
found to be responsible for abuse shall be provided notice of the opportunity
for judicial review pursuant to ORS
183.482. This notice shall
accompany or be incorporated within the Department's final order regarding the
nursing assistant's responsibility for abuse.
Or. Admin. R.
SSD 1-1995, f. 1-30-95,
cert. ef. 2-1-95; Administrative correction, 6-24-99; SPD 24-2009(Temp), f.
12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 11-2010, f. 6-30-10, cert. ef.
13-2015, f. 6-24-15, cert. ef.
Stat. Auth.: ORS
Stats. Implemented: ORS