Or. Admin. Code § 411-054-0105 - Inspections and Investigations
(1)
The facility must cooperate with Department personnel in inspections, complaint
investigations, planning for resident care, application procedures, and other
necessary activities.
(a) Records must be
made available to the Department upon request. Department personnel must have
access to all resident and facility records and may conduct private interviews
with residents. Failure to comply with this requirement shall result in
regulatory action.
(b) The State
Long Term Care Ombudsman must have access to all resident and facility records
that relate to an investigation. Certified Ombudsman volunteers may have access
to facility records that relate to an investigation and access to resident
records with written permission from the resident or guardian.
(c) The State Fire Marshal or authorized
representative must be permitted access to the facility and records pertinent
to resident evacuation and fire safety.
(d) The Oregon Health Authority and
appropriate Local Public Health Authority must be permitted access to the
facility and records pertinent to investigation of illness or outbreak, as
authorized by law.
(2)
The facility shall not interfere with a good faith disclosure of information by
an employee or volunteer concerning abuse or other action affecting a
resident's safety or welfare, as described in OAR
411-054-0028(4).
(3) Staff of the Department shall visit and
inspect every facility at least but not limited to once every two years for a
full in-person survey to determine whether the facility is maintained and
operated in accordance with these rules.
(a)
For each year during which a facility does not have a full survey, the
Department shall conduct an in-person inspection of the kitchen and other areas
where food is prepared for residents.
(b) Subsection (a) will not go into effect
until July 1, 2022.
(c) Facilities
not in compliance with these rules must submit, within ten days of receipt of
the inspection report, a plan of correction that satisfies the
Department.
(d) The Department may
impose sanctions for failure to comply with these rules.
(4) Department staff may consult with and
advise the facility administrator concerning methods of care, records, housing,
equipment, and other areas of operation.
(5) A copy of the most current inspection
report and any conditions placed upon the license must be posted with the
facility's license in public view near the main entrance to the
facility.
(6) ABUSE OR RULE
VIOLATION. Upon completion of substantiation of abuse or rule violation, the
Division shall immediately provide written notification to the facility.
(a) WRITTEN NOTICE. The written notice shall:
(A) Explain the nature of each
allegation;
(B) Include the date
and time of each occurrence;
(C)
For each allegation, include a determination of whether the allegation is
substantiated, unsubstantiated, or inconclusive;
(D) For each substantiated allegation, state
whether the violation was abuse or another rule violation;
(E) Include a copy of the complaint
investigation report;
(F) State
that the complainant, any person reported to have committed wrongdoing, and the
facility have 15 days to provide additional or different information;
and
(G) For each allegation,
explain the applicable appeal rights available.
(b) APPORTIONMENT. If the Department
determines there is substantiated abuse, the Department may determine that the
facility, an individual, or both the facility and an individual are responsible
for the abuse. In determining responsibility, the Department shall consider
intent, knowledge and ability to control, and adherence to professional
standards as applicable.
(A) FACILITY.
Examples of when the Department shall determine the facility is responsible for
the abuse include but are not limited to:
(i)
Failure to provide minimum staffing in accordance with these rules without
reasonable effort to correct;
(ii)
Failure to check for or act upon relevant information available from a
licensing board;
(iii) Failure to
act upon information from any source regarding a possible history of abuse by
any staff or prospective staff;
(iv) Failure to adequately provide oversight,
training, or orientation of staff;
(v) Failure to allow sufficient time to
accomplish assigned tasks;
(vi)
Failure to provide adequate services;
(vii) Failure to provide adequate equipment
or supplies; or
(viii) Failure to
follow orders for treatment or medication.
(B) INDIVIDUAL. Examples of when the
Department shall determine the individual is responsible for the abuse include
but are not limited to:
(i) Intentional acts
against a resident including assault, rape, kidnapping, murder, sexual abuse,
or verbal or mental abuse;
(ii)
Acts contradictory to clear instructions from the facility, unless the act is
determined by the Department to be caused by the facility as identified in
paragraph (A) above;
(iii) Callous
disregard for resident rights or safety; or
(iv) Intentional acts against a resident's
property (e.g., theft, misuse of funds).
(C) An individual may not be considered
responsible for the abuse if the individual demonstrates the abuse was caused
by factors beyond the individual's control. "Factors beyond the individual's
control" are not intended to include such factors as misuse of alcohol or drugs
or lapses in sanity.
(c)
DUE PROCESS RIGHTS.
(A) NON-NURSING ASSISTANT.
The written notice in cases of substantiated abuse by a person other than a
nursing assistant shall explain the person's right to:
(i) File a petition for reconsideration
pursuant to OAR 137-004-0080; and
(ii) Petition for judicial review pursuant to
ORS 183.484.
(B) NURSING ASSISTANT. The written notice in
cases of substantiated abuse by a nursing assistant shall explain:
(i) The Department's intent to enter the
finding of abuse into the Nursing Assistant Registry following the procedure
set out in OAR 411-089-0140; and
(ii) The nursing assistant's right to provide
additional information and request a contested case hearing as provided in OAR
411-089-0140.
(C) FACILITY. The written notice shall advise
the facility of the facility's due process rights as
appropriate.
(d)
DISTRIBUTION.
(A) The written notice shall be
mailed to the facility, any person reported to have committed wrongdoing, the
complainant (if known), and the Department or Type B AAA office; and
(B) A copy of the written notice shall be
placed in the Department's facility complaint file.
(7) Upon receipt of a notice of
abuse for victims covered by ORS
430.735, the facility shall
provide written notice of the findings to the person found to have committed
abuse, the residents of the facility, the residents' case managers, and the
residents' guardians.
Notes
Statutory/Other Authority: ORS 410.070, 443.417 & 443.450
Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991
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