Bill Text: OR SB413 | 2011 | Regular Session | Introduced
Bill Title: Relating to protective services in licensed care facilities.
Spectrum: Unknown
Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB413 Detail]
Download: Oregon-2011-SB413-Introduced.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2251
Senate Bill 413
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate Interim Committee on
Judiciary for Oregon Health Care Association)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Modifies responsibilities of Department of Human Services when
responding to complaints regarding residential facilities
licensed by department. Modifies definition of 'abuse' of
residents in facilities. Limits duration of disqualification from
direct care services due to certain criminal convictions. Allows
employment following disqualification if found fit for position.
Removes right of complainant to accompany investigator to site
of alleged abuse. Removes authority of investigator to photograph
victim of abuse for purpose of preserving evidence. Removes
immunity from civil and criminal liability for person reporting
resident abuse in good faith.
Authorizes civil penalties against facilities for certain
substantiated claims of resident abuse or neglect.
A BILL FOR AN ACT
Relating to protective services in licensed care facilities;
creating new provisions; amending ORS 441.117, 441.624,
441.630, 441.635, 441.650, 441.671, 441.675, 441.676, 441.677,
441.678, 441.679, 441.995, 443.004 and 443.735; and repealing
ORS 441.655, 441.660, 441.665, 441.690 and 441.695.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 441.630 is amended to read:
441.630. As used in ORS 441.630 to 441.680 and 441.995:
{ - (1) 'Abuse' means: - }
{ - (a) Any physical injury to a resident of a long term care
facility which has been caused by other than accidental
means. - }
{ - (b) Failure to provide basic care or services, which
failure results in physical harm or unreasonable discomfort or
serious loss of human dignity. - }
{ - (c) Sexual contact with a resident caused by an employee,
agent or other resident of a long term care facility by force,
threat, duress or coercion. - }
{ - (d) Illegal or improper use of a resident's resources for
the personal profit or gain of another person. - }
{ - (e) Verbal or mental abuse as prohibited by federal
law. - }
{ - (f) Corporal punishment. - }
{ - (g) Involuntary seclusion for convenience or
discipline. - }
{ - (2) 'Abuse complaint' means any oral or written
communication to the department, one of its agents or a law
enforcement agency alleging abuse. - }
{ - (3) 'Department' means the Department of Human Services
or a designee of the department. - }
{ + (1) 'Complaint' means any oral or written communication
to the Department of Human Services that pertains to a facility's
failure to comply with department rules or to deficiencies in the
care or treatment of a resident in the facility. + }
{ - (4) - } { + (2) + } 'Facility' means { + :
(a) + } A long term care facility { - , as defined in ORS
442.015. - } { + ;
(b) A licensed adult foster home, as defined in ORS 443.705,
that is licensed by the department; or
(c) A residential care facility as defined in ORS 443.400. + }
{ - (5) - } { + (3) + } 'Law enforcement agency' means:
(a) Any city or municipal police department.
(b) Any county sheriff's office.
(c) The Oregon State Police.
(d) Any district attorney.
{ - (6) - } { + (4) + } 'Public or private official' means:
(a) Physician, including any intern or resident.
(b) Licensed practical nurse or registered nurse.
(c) Employee of the Department of Human Services, a community
developmental disabilities program or a { - long term care - }
facility or person who contracts to provide services to a
{ - long term care - } facility.
(d) Employee of the Oregon Health Authority, county health
department or community mental health program.
(e) Peace officer.
(f) Member of the clergy.
(g) Regulated social worker.
(h) Physical, speech and occupational therapists.
(i) Legal counsel for a resident or guardian or family member
of the resident.
{ + (5) 'Resident abuse' means the commission of one or more
of the following acts by an operator, employee or contractor of a
facility against a resident of the facility:
(a) Willful or wrongful conduct that results in any physical
injury to a resident.
(b) Sexual contact by force, threat, duress or coercion.
(c) Illegal or wrongful use of a resident's resources for the
personal profit or gain of another person.
(d) Verbal or mental abuse as prohibited by 42 C.F.R. 483.13.
(e) Corporal punishment.
(f) Involuntary seclusion for convenience or discipline.
(6)(a) 'Resident neglect' means the failure of an operator,
employee or contractor of a facility to provide basic care or
services that results in physical harm, unreasonable discomfort
or serious loss of human dignity to a resident.
(b) 'Resident neglect' does not include a decision to forgo
medical care for a resident if the decision is consistent with
the resident's previously executed advance directive, physician
order for life-sustaining treatment or power of attorney for
health care, or otherwise as authorized by law.
(7) 'Wrongful' means an act or omission that violates a legal
duty, infringes on another individual's rights or is contrary to
law, and that is committed by a person with an improper motive,
by improper means or for an improper purpose. + }
SECTION 2. ORS 441.635 is amended to read:
441.635. The Legislative Assembly finds that for the purpose of
{ - preventing abuse, - } safeguarding and enhancing the
welfare of residents and assuring the dignity and care to which
residents are entitled, it is necessary and in the public
interest to require
{ - mandatory reports and - } investigations of
{ - allegedly abused residents - } { + complaints of neglect
and abuse and to enhance the quality of care provided to
residents of facilities + }.
SECTION 3. ORS 441.650 is amended to read:
441.650. { - (1) - } Upon receipt of { - the oral or
written report required under ORS 441.640, or of an abuse
complaint, the area agency on aging, - } { + a complaint, + }
the Department of Human Services or
{ - the law enforcement agency - } { + its designee + } shall
cause an investigation to be { - commenced as follows: - }
{ + conducted. The department or its designee shall: + }
{ - (a) Within two hours, if the complaint alleges that a
resident's health or safety is in imminent danger or that the
resident has recently died, been hospitalized or been treated in
an emergency room; or - }
{ - (b) Prior to the end of the next working day, if the
complaint alleges that circumstances exist that could result in
abuse and that the circumstances could place a resident's health
or safety in imminent danger. - }
{ - (2) If the law enforcement agency conducting the
investigation finds reasonable cause to believe that abuse has
occurred, the law enforcement agency shall notify in writing the
local office of the area agency or the department as
appropriate. Except in cases where the investigation is part of
nursing facility surveyor activity pursuant to federal law, the
area agency or the department shall complete an initial status
report within two working days of the start of the investigation
that includes: - }
{ - (a) A summary of the complaint that identifies each
alleged incident or problem; - }
{ - (b) The status of the investigation; - }
{ - (c) Whether an abuse complaint was initially filed at the
direction of the administration of the facility; - }
{ - (d) A determination of whether protection of the resident
is needed and whether the facility must take action; - }
{ - (e) The name and telephone number of the investigator;
and - }
{ - (f) The projected date that the investigation report will
be completed and a statement that the report will be available
upon request after the department issues a letter of
determination. - }
{ - (3) The initial status report described in subsection (2)
of this section shall be provided either in person or by mail to
the following individuals as soon as practicable, but no later
than two working days after its completion: - }
{ - (a) The complainant, unless the complainant waives the
requirement; - }
{ - (b) If the complaint involves a specific resident, the
resident or a person designated to receive information concerning
the resident; - }
{ - (c) A representative of the Long Term Care Ombudsman,
upon request; and - }
{ - (d) The long term care facility. - }
{ - (4) The initial status report described in subsection (2)
of this section shall be available for public inspection. - }
{ - (5) When copies of the initial status report described in
subsection (2) of this section are made available to individuals
listed in subsection (3) of this section, the names of the
resident involved, the complainant and any individuals
interviewed by the investigator shall be deleted from the
copies. - }
{ - (6) In investigating an abuse complaint, the investigator
shall: - }
{ - (a) - } { + (1) + } Make an unannounced visit to the
facility { - , except as provided by ORS 441.690, - } to
determine the nature { - and cause of the abuse of the
resident - } { + of the complaint + };
{ - (b) - } { + (2) + } Interview all available witnesses
identified by any source as having personal knowledge relevant to
the { - abuse - } complaint, such interviews to be private
unless the witness expressly requests the interview not to be
private;
{ - (c) - } { + (3) + } Make personal inspection of all
physical circumstances that are relevant and material and that
are susceptible to objective observation; and
{ - (d) - } { + (4) No later than 60 days after the date of
the complaint, + } write an investigation report that includes:
{ - (A) - } { + (a) + } The investigator's personal
observations;
{ - (B) - } { + (b) + } A review of documents and records;
{ - (C) - } { + (c) + } A summary of all witness
statements; and
{ - (D) - } { + (d) + } A statement of the factual basis
for the findings for each incident or problem alleged in the
complaint.
{ - (7) Within five working days of completion of the
investigation and not later than 60 days from completion of the
initial status report described in subsection (2) of this
section, the investigator shall provide the department with the
written report required by subsection (6) of this section. The
department shall make the investigation report available upon
request after the letter of determination is complete. When
copies of the report are made available, the names of the
resident involved, the complainant and any individuals
interviewed by the investigator shall be deleted from the
copies. - }
SECTION 4. ORS 441.671 is amended to read:
441.671. (1) Notwithstanding the provisions of ORS 192.410 to
192.505, the names of complainants and residents { - compiled
under the provisions of ORS 441.640 to 441.660 - } { + , health
information regarding the residents, an investigation report
under ORS 441.650 compiled in response to an incident reported to
the Department of Human Services by the facility and any
corrective actions taken in response to the report + } are
confidential and are not accessible for public inspection.
However, the department { - of Human Services - } shall make
the information available to any law enforcement agency, to any
public agency which licenses or certifies { - long term
care - } facilities or licenses or certifies the persons
practicing the healing arts therein and to the Long Term Care
Ombudsman.
(2) Except as provided in subsection (1) of this section, the
provisions of ORS 192.410 to 192.505 apply to all records and
reports compiled under ORS 441.640 to 441.665.
SECTION 5. ORS 441.675 is amended to read:
441.675. In the case of { + resident + } abuse { - of a
resident - } in a
{ - long term care - } facility, the privileges extended under
ORS 40.225 to 40.295 shall not be a ground for excluding evidence
regarding the { - abuse of a - } resident { + abuse + }, or
the cause thereof, in any judicial proceeding resulting from a
report made pursuant to ORS 441.640.
SECTION 6. ORS 441.677 is amended to read:
441.677. { - (1) Within 60 days of receipt of the
investigation documents and the written report described in ORS
441.650 (6)(d) and 441.676 (2)(d), the Department of Human
Services shall prepare a written letter of determination that
states the department's determinations concerning each incident
or problem alleged in the complaint. The department shall
determine whether the alleged incident or problem was
substantiated or unsubstantiated or whether the department was
unable to substantiate the alleged incident or problem. The
department shall adopt by rule definitions for the terms
'substantiated,' 'unsubstantiated ' and 'unable to substantiate.'
If the department determines that an incident or problem alleged
in the complaint is substantiated, the letter of determination
shall state whether the substantiated incident was abuse or
violation of another rule. If abuse is substantiated, the letter
of determination shall state whether the facility or an
individual, or both, was responsible. The department shall adopt
by rule criteria for determining responsibility for substantiated
abuse. - }
{ - (2) A copy of the letter of determination shall be placed
in the facility's complaint file. Copies shall be sent to the
facility, the complainant and the local office of the department.
The facility and the complainant receiving the letter of
determination shall be given 10 days to respond with additional
information and shall be informed of the appeals process. - }
{ - (3) If the department determines that an individual who
holds a license or certificate for a health occupation is
directly responsible for the abuse, the department shall send a
copy of its letter of determination and investigation report to
the state agency responsible for licensing or certifying the
individual in the health occupation. In instances involving
conduct of a nursing assistant, the department shall give the
nursing assistant 10 days to respond with additional information.
The department also shall notify by mail the nursing assistant
implicated in the investigation of: - }
{ - (a) The nature of the allegations; - }
{ - (b) The date and time of occurrence; - }
{ - (c) The right to a contested case hearing conducted in
accordance with ORS chapter 183; - }
{ - (d) The department's obligation to report the
substantiated findings in the registry maintained under ORS
441.678 after the nursing assistant has had an opportunity for a
contested case hearing; and - }
{ - (e) The fact that the nursing assistant's failure to
request a contested case hearing within 30 days from the date of
the notice will result in the department's reporting the
substantiated findings in the registry maintained under ORS
441.678. - }
{ - (4) Notice sent to the nursing assistant's last-known
address is sufficient to meet the requirements of subsection (3)
of this section. - }
{ + (1) Upon the completion of a complaint investigation, the
Department of Human Services shall determine whether the
complaint is substantiated, unsubstantiated or whether the
department is unable to substantiate the complaint.
(2) If the department determines that the complaint is
substantiated, the department shall determine whether:
(a) The incident described in the complaint involved resident
abuse or resident neglect; and
(b) The conduct was wrongful.
(3) If the department determines that a complaint of resident
abuse or wrongful resident neglect is substantiated, the
department shall do all of the following:
(a) Require corrective actions, including but not limited to
facility monitoring, employee training and quality control
improvements, or impose civil penalties or license suspension or
termination. Before imposing civil penalties or license
suspension or revocation, the department shall consider whether
the facility:
(A) Reported the incident;
(B) Took reasonable steps to identify the incident and to
prevent further occurrences of the incident.
(C) Cooperated in the department's investigation.
(D) Took steps to protect the health, safety and well-being of
the residents.
(b) Issue a written notice to any individual determined to be
responsible for the resident abuse or wrongful resident neglect
specifying the nature of the complaint and the department's
finding of resident abuse or wrongful resident neglect.
(c) Send a copy of any letter of determination and the
investigation report to the facility employing the individual.
(d) Send a copy of any letter of determination and the
investigation report to any state agency that licenses or
certifies the individual.
(4) If the department determines that a complaint is
substantiated and the conduct or condition is not resident abuse
or wrongful resident neglect but causes or has the potential to
cause more than minimal harm to a resident, the department may
require corrective actions, including but not limited to facility
monitoring, employee training and quality control improvements.
Requirements for corrective actions shall be based on
consideration of, at a minimum, whether the facility:
(a) Reported the incident; and
(b) Took steps to protect the health, safety and well-being of
the residents.
(5) The department shall issue a letter of determination that
includes all of the following:
(a) The determinations under subsections (1) to (4) of this
section.
(b) Corrective actions required by the department.
(c) The facility's options and rights with respect to the
required corrective actions.
(d) Notice that additional corrective actions may be required
if the facility does not take the corrective actions required
initially.
(6) The department shall place a copy of the letter of
determination in the facility's complaint file. A copy of the
letter shall be sent to the facility, the complainant and the
local office of the department. The facility and the complainant
receiving the letter of determination shall be given 10 days to
respond in writing with additional information and shall be
informed of the appeals process.
(7) A facility's written response shall be maintained in the
facility's complaint file. + }
SECTION 7. ORS 441.678 is amended to read:
441.678. (1) { + The Department of Human Services shall
maintain a nursing assistant registry that contains, at a
minimum, the information required by 42 C.F.R. 483.156.
(2) + } If a nursing assistant { + is + } found by the
department { - of Human Services - } to be responsible for
{ - abuse - } { + resident neglect that was not caused by
factors beyond the control of the nursing assistant or for
resident abuse, the department shall notify the nursing assistant
in writing at the nursing assistant's last known address:
(a) Of the nature of the alleged neglect or abuse, including
any relevant dates and times;
(b) Of the nursing assistant's right to a contested case
hearing in accordance with ORS chapter 183 to dispute the
allegations of neglect or abuse;
(c) That the department must report substantiated findings of
neglect or abuse to the registry maintained under this section;
and
(d) That the nursing assistant's failure to request a hearing
within 30 days after the date of the notice will result in a
final order containing a finding of resident neglect or resident
abuse and a report to the registry maintained under this section.
(3) If the nursing assistant + }does not respond to the
department within 30 days after { + the date of the + } notice
of the opportunity for a contested case hearing, the department
shall { + enter a final order and + } place the { - abuse - }
finding { + of resident neglect or resident abuse + } in the
registry maintained under this section.
{ - (2) - } { + (4) + } { - If a nursing assistant is
found to be responsible for abuse, the nursing assistant is
entitled to a contested case hearing under ORS chapter 183. - }
Upon a finding of { + resident neglect or resident + } abuse in
a final order { + issued in connection with a contested case
hearing + }, the department shall place the finding in the
registry maintained under this section.
{ - (3) The department shall maintain a nursing assistant
registry that contains, at a minimum, the information required by
42 C.F.R. 483.156. - }
SECTION 8. ORS 441.679 is amended to read:
441.679. (1) Before employing a registered nurse, licensed
practical nurse or nursing assistant, a long term care facility
shall contact the Oregon State Board of Nursing and inquire { + :
(a) + } Whether the person is currently licensed or certified
by the board { - and - } { + ;
(b) + } Whether there has been any disciplinary action against
the person { - or substantiated abuse findings against a
nursing assistant - } { + ; and
(c) Whether a finding of resident neglect or resident abuse for
which the person is responsible has been entered into the
registry maintained under ORS 441.678 + }.
(2) A facility shall not employ or retain in employment { + :
(a) + } Any person found by a court of law to have abused,
neglected or mistreated a person receiving long term care
services { - , nor shall a facility employ or retain in
employment - } { + ; or
(b) + } Any nursing assistant against whom a finding of
{ + resident neglect or + } resident abuse has been entered into
the registry maintained under ORS 441.678.
SECTION 9. ORS 443.004, as amended by sections 12 and 13,
chapter 93, Oregon Laws 2010, is amended to read:
443.004. (1) The Department of Human Services or the Oregon
Health Authority shall complete a criminal records check under
ORS 181.534 on:
(a) An employee of a residential facility, adult foster home,
in-home care agency or home health agency;
(b) Any individual who is paid directly or indirectly with
public funds who has or will have contact with a recipient of
home health, in-home care or support services or a resident of an
adult foster home or a residential facility; and
(c) A home care worker registering with the Home Care
Commission or renewing a registration with the Home Care
Commission.
(2) Public funds may not be used to support, in whole or in
part, the employment in any capacity having contact with a
recipient of home health, in-home care or support services or a
resident of a residential facility or an adult foster home, of an
individual who has been convicted { + of + }:
(a) { - Of - } A crime described in ORS 163.095, 163.115,
163.118, 163.125, 163.145, 163.149, 163.165, 163.175, 163.185,
163.187, 163.200, 163.205, 163.225, 163.235, 163.263, 163.264,
163.266, 163.275, 163.465, 163.467, 163.535, 163.537, 163.689,
163.700,
{ - 164.055, - } 164.057, { - 164.098, 164.125 (5)(c) or
(d), 164.215, - } 164.225, 164.325, { - 164.377 (2) or (3), - }
164.405, 164.415,
{ - 165.022, - } 165.032, { - 165.800, - } 165.803,
167.012, 167.017, 167.054 or 167.057;
{ + (b) A crime described in ORS 164.055, 164.098, 164.125
(5)(c) or (d), 164.215, 164.377 (2) or (3), 165.022 or
165.800; + }
{ - (b) - } { + (c) + } { - Of - } A crime listed in ORS
181.594;
{ - (c) - } { + (d) + } In the last 10 years, { - of - }
a crime involving the delivery or manufacture of a controlled
substance;
{ - (d) - } { + (e) + } { - Of - } An attempt,
conspiracy or solicitation to commit a crime described in
paragraphs (a) to { - (c) - } { + (d) + } of this subsection;
or
{ - (e) - } { + (f) + } { - Of - } A crime in another
jurisdiction that is substantially equivalent, as defined by
rule, to a crime described in paragraphs (a) to { - (d) - }
{ + (e) + } of this subsection.
{ + (3) If a qualified entity determines under ORS 181.537
(7) that an individual is fit to hold a position, the individual
may be employed using public funds if:
(a) At least seven years have passed since a conviction or
incarceration for any crime described in subsection (2)(a) or (c)
of this section, for an attempt, conspiracy or solicitation to
commit a crime described in subsection (2)(a) or (c) of this
section or for a crime in another jurisdiction that is
substantially equivalent, as defined by rule, to a crime
described in subsection (2)(a) or (c) of this section; or
(b) At least four years have passed since a conviction or
incarceration for any crime described in subsection (2)(b) of
this section, for an attempt, conspiracy or solicitation to
commit a crime described in subsection (2)(b) of this section or
for a crime in another jurisdiction that is substantially
equivalent, as defined by rule, to a crime described in
subsection (2)(b) of this section. + }
{ - (3) - } { + (4) + } Subsection (2) of this section does
not apply to a peer support specialist.
{ - (4) - } { + (5) + } If the department or authority has
a record of substantiated abuse committed by an employee or
potential employee of a home health agency, in-home care agency,
adult foster home or residential facility, regardless of whether
criminal charges were filed, the department or authority shall
notify, in writing, the employer and the employee or potential
employee.
{ - (5) - } { + (6) + } As used in this section:
(a) 'Adult foster home' has the meaning given that term in ORS
443.705.
(b) 'Home care worker' has the meaning given that term in ORS
410.600.
(c) 'Home health agency' has the meaning given that term in ORS
443.005.
(d) 'In-home care agency' has the meaning given that term in
ORS 443.305.
(e) 'Peer support specialist' means a person who:
(A) Is providing peer support services as defined by the
authority by rule;
(B) Is under the supervision of a qualified clinical
supervisor;
(C) Has completed training required by the authority; and
(D) Is currently receiving or has formerly received mental
health services, or is in recovery from a substance use disorder
and meets the abstinence requirements for staff providing
services in alcohol or other drug treatment programs.
(f) 'Residential facility' has the meaning given that term in
ORS 443.400.
SECTION 10. { + ORS 441.655, 441.660, 441.665, 441.690 and
441.695 are repealed. + }
SECTION 11. ORS 441.117 is amended to read:
441.117. (1) The Long Term Care Ombudsman and each designee
shall have the right of entry into long term care facilities at
any time considered necessary and reasonable by the ombudsman or
the designee for the purpose of:
(a) Investigating and resolving complaints by residents or on
their behalf;
(b) Interviewing residents, with their consent, in private;
(c) Offering the services of the ombudsman or designee to any
resident, in private;
(d) Interviewing employees or agents of the long term care
facility;
(e) Consulting regularly with the facility administration; and
(f) Providing services authorized by law or by rule.
(2) The Long Term Care Ombudsman shall have access to any
resident's records, and to records of any public agency necessary
to the duties of the office, including records on { - patient
abuse - } complaints made pursuant to ORS 441.630 to 441.680 and
441.995. Nothing contained in ORS 192.518 to 192.529 is intended
to limit the access of the Long Term Care Ombudsman to medical
records of residents of long term care facilities. Designees may
have access to individual resident's records, including medical
records as authorized by the resident or resident's legal
representative, if needed to investigate a complaint.
(3) Entry and investigation authorized by this section shall be
done in a manner that does not disrupt significantly the
providing of nursing or other personal care to residents.
(4) The ombudsman or the designee must show identification to
the person in charge of the facility. The resident shall have the
right to refuse to communicate with the ombudsman or designee.
The refusal shall be made directly to the ombudsman or designee
and not through an intermediary.
(5) The resident shall have the right to participate in
planning any course of action to be taken on behalf of the
resident by the ombudsman or the designee.
SECTION 12. ORS 441.624 is amended to read:
441.624. (1) ORS 124.050, 124.080, 410.190, 441.020 to 441.057,
441.060, 441.061, 441.067, 441.073, 441.087, 441.277 to 441.289,
441.303, 441.316, 441.318, 441.331 to 441.341, 441.367, 441.600,
441.610, 441.630, 441.650 to 441.665, 441.685, { - 441.690, - }
441.703 and 441.705 to 441.720 address the consolidation of the
regulatory functions of licensing, certification, inspection of
care, utilization review, abuse reporting and abuse
investigation.
(2) It is legislative intent that:
(a) The Department of Human Services focus administrative
effort on the integration and consistent application and
interpretation of the regulatory functions at the nursing
facility level;
(b) Surveys and other reports, especially with respect to
client assessment, be consistently and reliably performed
throughout the state;
(c) Positive and negative findings and sanctions be
proportional to the strengths and problems identified, within the
limits of federal statute and regulations; and
(d) The interpretation of regulatory criteria be independent of
influence from budgetary limitations.
SECTION 13. ORS 441.676 is amended to read:
441.676. (1) For complaints of licensing violations other than
abuse, the Department of Human Services shall cause an
investigation to be completed within 90 days of the receipt of
the complaint.
(2) Except { + as provided in ORS 441.650, + } in cases where
the investigation is part of nursing facility surveyor activity
pursuant to federal law, an investigator { - investigating a
complaint other than a complaint of abuse - } shall:
(a) Make an unannounced visit to the facility { - , while
complying with ORS 441.690 - } ;
(b) Interview all available witnesses identified by any source
as having personal knowledge relevant to the complaint, such
interviews to be private unless the witness expressly requests
the interview not to be private;
(c) Make personal inspection of all physical circumstances that
are relevant and material and that are susceptible to objective
observation; and
(d) Write an investigation report that includes:
(A) The investigator's personal observations;
(B) A review of documents and records;
(C) A summary of all witness statements; and
(D) A statement of the factual basis for the findings for each
incident or problem alleged in the complaint.
SECTION 14. ORS 441.995 is amended to read:
441.995. (1) In adopting criteria for establishing the amount
of civil penalties for violations of ORS 441.630 to 441.680, the
Department of Human Services shall consider:
(a) Any prior violations of laws or rules pertaining to
facilities;
(b) The financial benefits, if any, realized by the facility as
a result of the violation;
(c) The gravity of the violation, including the actual or
potential threat to the health, safety and well-being of one or
more residents;
(d) The severity of the actual or potential harm caused by the
violation; and
(e) The facility's past history of correcting violations and
preventing the recurrence of violations.
(2) The department may impose a civil penalty for
{ + resident + } abuse in accordance with rules adopted under
ORS 441.637 (1).
(3) If the department finds the facility is responsible for
{ + resident + } abuse and if the abuse resulted in a
resident's death or serious injury, the department shall impose a
civil penalty of not less than $500 nor more than $1,000 for each
violation, or as otherwise required by federal law or ORS 441.715
(1)(c), 443.455 or 443.775.
(4) Nothing in ORS 441.637 and this section is intended to
expand, replace or supersede the department's authority to impose
civil penalties pursuant to ORS 441.710 or 441.715 for violations
that do not constitute { + resident + } abuse.
(5) Facilities assessed civil penalties under this section are
entitled to a contested case hearing under ORS chapter 183.
SECTION 15. ORS 443.735 is amended to read:
443.735. (1) Applications for a license to maintain and operate
an adult foster home shall be made on forms provided by the
licensing agency. Each application shall be accompanied by a fee
of $20 per bed requested for licensing.
(2) Upon receipt of an application and fee, the licensing
agency shall conduct an investigation.
(3) The licensing agency shall not issue an initial license
unless:
(a) The applicant and adult foster home are in compliance with
ORS 443.002 and 443.705 to 443.825 and the rules of the licensing
agency;
(b) The licensing agency has completed an inspection of the
adult foster home;
(c) The licensing agency has completed a criminal records check
under ORS 181.534 on the applicant and any person, other than a
resident, 16 years of age or older who will be residing in the
adult foster home. The criminal records check shall be conducted
in accordance with rules adopted under ORS 181.534;
(d) The licensing agency has determined that the registry
maintained under ORS 441.678 contains no finding that the
applicant or any nursing assistant employed by the applicant has
been responsible for { + resident + } abuse { + or resident
neglect + }; and
(e) The applicant has demonstrated to the licensing agency the
financial ability and resources necessary to operate the adult
foster home. The licensing agency shall adopt rules as the agency
deems appropriate that establish the financial standards an
applicant must meet to qualify for issuance of a license and that
protect financial information from public disclosure. The
demonstration of financial ability under this paragraph shall
include, but need not be limited to, providing the licensing
agency with a list of any unsatisfied judgments, pending
litigation and unpaid taxes and notifying the agency regarding
whether the applicant is in bankruptcy. If the applicant is
unable to demonstrate the financial ability and resources
required by this paragraph, the licensing agency may require the
applicant to furnish a financial guarantee as a condition of
initial licensure.
(4) The licensing agency may not renew a license under this
section unless:
(a) The applicant and the adult foster home are in compliance
with ORS 443.002 and 443.705 to 443.825 and the rules of the
licensing agency;
(b) The licensing agency has completed an inspection of the
adult foster home;
(c) The licensing agency has completed a criminal records check
under ORS 181.534 on the applicant and any person, other than a
resident, 16 years of age or older who will be residing in the
adult foster home. The criminal records check under this
paragraph shall be conducted in accordance with rules adopted
under ORS 181.534; and
(d) The licensing agency has determined that the registry
maintained under ORS 441.678 contains no finding that the
applicant or any nursing assistant employed by the applicant has
been responsible for { + resident + } abuse { + or resident
neglect + }.
(5)(a) In seeking an initial license and renewal of a license
when an adult foster home has been licensed for less than 24
months, the burden of proof shall be upon the provider and the
adult foster home to establish compliance with ORS 443.705 to
443.825 and the rules of the licensing agency.
(b) In proceedings for renewal of a license when an adult
foster home has been licensed for at least 24 continuous months,
the burden of proof shall be upon the licensing agency to
establish noncompliance with ORS 443.705 to 443.825 and the rules
of the agency.
(6)(a) Persons who have been convicted of one or more crimes
that, as determined by rules of the licensing agency, are
substantially related to the qualifications, functions or duties
of a provider, substitute caregiver or other household member of
an adult foster home shall be prohibited from operating, working
in or residing in an adult foster home.
(b) The licensing agency shall adopt rules that distinguish the
criminal convictions and types of abuse that permanently prohibit
a person from operating, working in or living in an adult foster
home from the convictions and types of abuse that do not
permanently prohibit the person from operating, working in or
living in an adult foster home.
(c) A provider may not hire, retain in employment or allow to
live in an adult foster home, other than as a resident, any
person who the provider knows has been convicted of a
disqualifying crime or has been found responsible for a
disqualifying type of abuse.
(7) A license under ORS 443.725 is effective for one year from
the date of issue unless sooner revoked. Each license shall state
the name of the resident manager of the adult foster home, the
names of all providers who own the adult foster home, the address
of the premises to which the license applies, the maximum number
of residents and the classification of the adult foster home. If,
during the period covered by the license, a resident manager
changes, the provider must within 15 days request modification of
the license. The request must be accompanied by a fee of $10.
(8) No license under ORS 443.725 is transferable or applicable
to any location, persons operating the adult foster home or the
person owning the adult foster home other than that indicated on
the application for licensing.
(9) The licensing agency shall not issue a license to operate
an additional adult foster home to a provider unless the provider
has demonstrated the qualifications and capacity to operate the
provider's existing licensed adult foster homes and has
demonstrated the ability to provide to the residents of those
adult foster homes care that is adequate and substantially free
from abuse and neglect.
(10)(a) All moneys collected under ORS 443.725 to 443.780 from
adult foster homes that are licensed to serve persons with
mental, emotional or behavioral disturbances or alcohol or drug
dependence shall be deposited in a special account in the General
Fund, and are appropriated continuously for payment of expenses
incurred by the Oregon Health Authority.
(b) All moneys collected under ORS 443.725 to 443.780 from
adult foster homes licensed to serve persons who are elderly,
have physical disabilities or have developmental disabilities
shall be deposited in the Quality Care Fund established in ORS
443.001.
(11) Notwithstanding any other provision of this section or ORS
443.725 or 443.738, the licensing agency may issue a 60-day
provisional license to a qualified person if the agency
determines that an emergency situation exists after being
notified that the licensed provider of an adult foster home is no
longer overseeing operation of the adult foster home.
SECTION 16. { + The amendments to ORS 443.004 by section 9 of
this 2011 Act apply to employees who were hired on or after July
28, 2009. + }
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