Or. Admin. Code § 309-040-0400 - Inspections
(1) The Division
must 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 residents; 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 residents' care.
(3) State or local fire inspectors must be
permitted access to enter and inspect the AFH regarding fire safety upon
request of the Division or CMHP.
(4) The Division, the CMHP, the Oregon
Department of Human Services (ODHS), and the Centers for Medicare and Medicaid
Services (CMS) have authority and must have full access to examine and copy AFH
records and accounts, including resident records and accounts, and to inspect
the physical premises, including the buildings, grounds, equipment, and any
vehicles.
(5) The Division, CMHP,
ODHS, and CMS staff must be permitted to interview the provider, resident
manager, caregiver, and residents. Interviews are confidential 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 the Division, CMHP,
ODHS, and CMS staff for the purpose of inspection and investigation.
(7) The Division, CMHP, ODHS, and CMS staff
may conduct inspections with or without advance notice to the provider, staff,
or a resident of the AFH. Advanced notice of an inspection will not be provided
if such notice might obstruct or seriously diminish the effectiveness of the
inspection or enforcement of these rules.
(8) If the Division, CMHP, ODHS, or CMS staff
is not permitted access or inspection, a search warrant may be
obtained.
(9) The inspector must
respect the private possessions and living area of residents, providers, and
caregivers while conducting an inspection.
(10) Completed reports on inspections, except
for confidential information, must be available to the public upon written
request to the Division or CMHP during business hours.
(11) For residents receiving services
authorized or funded by the Division, the Division, ODHS or their designee must
investigate allegations of abuse as defined in ORS
430.735 to
430.765.
(12) When abuse is alleged or death of a
resident has occurred and a law enforcement agency or the Division, OTIS, ODHS
or their 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, ODHS or their designee or
must complete an abuse investigation and protective services report in
accordance with OAR 943-045-0000.
(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 described in (13) of this rule,
notification is provided to the designated provider.
(a) The provider must implement the reports
recommended actions within the deadlines listed to prevent further abuse as
stated in the report and notify the Division of completion.
(b) In accordance with ORS 443,87, upon being
notified of substantiated abuse of a resident by staff, the AFH licensee or
designated provider must provide written notice of the findings to:
(A) The staff found to have committed
abuse;
(B) Residents of the
AFH;
(C) The residents' case
managers; and
(D) The residents'
legal representative.
(16) A provider may not retaliate against any
person who reports in good faith suspected abuse or against the resident 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 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 must be in accordance with 443.790.
(18) In accordance with ORS
430.755, 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 facility, community program, or person involved in a report against the
person making the report or against the adult with respect to whom the report
was made 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 facility or its residents.
(19) Adverse action may also be evidence of
retaliation after 90 days even though the presumption no longer
applies.
Notes
Statutory/Other Authority: ORS 413.042
Statutes/Other Implemented: ORS 443.705 - 443.825
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