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. Statutory/Other Authority: ORS 410.070, 443.417 & 443.450 Statutes/Other Implemented: ORS 443.400 - 443.455 & 443.991 History: APD 55-2021, amend filed 12/09/2021, effective 12/15/2021 APD 23-2021, temporary amend filed 06/21/2021, effective 06/23/2021 through 12/19/2021 APD 20-2021, amend filed 06/08/2021, effective 06/09/2021 APD 51-2020, temporary amend filed 12/18/2020, effective 01/01/2021 through 06/29/2021 APD 25-2017, amend filed 10/26/2017, effective 10/28/2017 APD 11-2017(Temp), f. 4-21-17, cert. ef. 5-1-17 thru 10-27-17 SPD 10-2010, f. 6-30-10, cert. ef. 7-1-10 SPD 23-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10 SPD 16-2008, f. 12-31-08, cert. ef. 1-1-09 SPD 14-2007, f. 8-31-07, cert. ef. 11-1-07