Oregon Bulletin
Rule
Caption: Abuse Reporting and Protective
Services for Individuals in State Hospitals.
Adm.
Order No.: OHA 30-2011
Filed with Sec. of
State: 12-22-2011
Certified to be
Effective: 12-23-11
Notice Publication
Date: 1-1-2011
Rules Adopted: 943-045-0400, 943-045-0410, 943-045-0420, 943-045-0430,
943-045-0440, 943-045-0450, 943-045-0460, 943-045-0470, 943-045-0480,
943-045-0490, 943-045-0500, 943-045-0510, 943-045-0520
Rules Repealed: 943-045-0400(T), 943-045-0410(T), 943-045-0420(T),
943-045-0430(T), 943-045-0440(T), 943-045-0450(T), 943-045-0460(T),
943-045-0470(T), 943-045-0480(T), 943-045-0490(T), 943-045-0500(T),
943-045-0510(T), 943-045-0520(T)
Subject: HB 2009 (2009) created the Oregon Health Authority
(Authority) and transferred to the Authority the Department of Human Services’
(Department) Divisions with respect to health and health care. Effective July
1, 2011 the Authority is adopting its own operational and programmatic rules as
a part of the operational transfer from functions previously performed by the
Department as result of HB 2009(2009).
With the creation
of a new agency, the state hospitals serving individuals with mental illness
moved to the Authority. These rules are needed to reflect the separation of the
Department of Human Services and Oregon Health Authority.
Rules Coordinator: Evonne Alderete—(503) 932-9663
943-045-0400
Purpose
The purpose of these rules is to establish a policy prohibiting
abuse and to define procedures for reporting, investigating, and resolving
alleged incidents of abuse of individuals in state hospitals.
Stat. Auth.: ORS 179.040, 413.042
Stats. Implemented: ORS 179.390,
426.385, 427.031, 430.210, 430.735-430.768
Hist.: OHA 12-2011(Temp), f. &
cert. ef. 7-1-11 thru 12-27-11; OHA 30-2011, f. 12-22-11, cert. ef. 12-23-11
943-045-0410
Definitions
(1) “Abuse” means any act or absence of action by a
staff or visitor inconsistent with prescribed treatment and care that violates
the well-being or dignity of the individual.
(2) “Authority” means the Oregon Health Authority.
(3) “Derogatory” means an expression of a low opinion
or a disparaging remark.
(4) “Director” means the Director of the Oregon Health
Authority’s Addictions and Mental Health Division or their designee.
(5) “Disrespectful” means lacking regard or concern; or
to treat as unworthy or lacking value as a human being.
(6) “Division” means the Oregon Health Authority’s
Addictions and Mental Health Division.
(7) “Employee” means an individual employed by the
state and subject to rules for employee conduct.
(8) “Inconclusive” means there is insufficient evidence
to conclude the alleged abuse occurred or did not occur by a preponderance of
the evidence.
(9) “Individual” means a person who is receiving
services at a state hospital for people with mental illness.
(10) “Not Substantiated” means the preponderance of
evidence establishes the alleged abuse did not occur.
(11) “Office of Investigations and Training (OIT)”means
the Department of Human Services’ Shared Services Division office responsible
for the investigation of allegations of abuse made at state hospitals on behalf
of the Authority.
(12) “Staff” means employees, contractors and their
employees, and volunteers.
(13) “Substantiated” means that the preponderance of
evidence establishes the abuse occurred.
(14) “Superintendent” refers to the chief executive
officer of a state hospital who serves as the designee of the Director to
receive allegations of abuse concerning individuals and his or her designee.
(15) “Visitor” means all others persons not included as
staff who visit the facility for business purposes or to visit individuals or
staff.
Stat. Auth.: ORS 179.040, 413.042
Stats. Implemented: ORS 179.390,
426.385, 427.031, 430.210, 430.735-430.768
Hist.: OHA 12-2011(Temp), f. &
cert. ef. 7-1-11 thru 12-27-11; OHA 30-2011, f. 12-22-11, cert. ef. 12-23-11
943-045-0420
General Policy
(1) The Authority believes every individual is
deserving of safe, respectful and dignified treatment provided in a caring
environment. To that end, all employees, volunteers, contractors and their
employees, as well as visitors shall conduct themselves in such a manner that
individuals are free from abuse.
(2) In these rules, the term “abuse” is given a broad
definition because of the unique vulnerability of individuals served by the
Authority. While some examples are listed later in these rules (including
specific conduct listed in ORS 430.735(1)), it must be clearly understood that
all possible situations cannot be anticipated and each case must be evaluated
based on the particular facts available.
Stat. Auth.: ORS 179.040, 413.042
Stats. Implemented: ORS 179.390,
426.385, 427.031, 430.210, 430.735-430.768
Hist.: OHA 12-2011(Temp), f. &
cert. ef. 7-1-11 thru 12-27-11; OHA 30-2011, f. 12-22-11, cert. ef. 12-23-11
943-045-0430
Policy Regarding Abuse
(1) All Forms of Abuse Prohibited. Staff, visitors,
volunteers, contractors and their employees must continually be aware of the
potential for abuse in interactions with individuals.
(2) Listed below are examples of the type of conduct
which constitutes abuse. This list of examples is by no means exhaustive and
represents general categories of prohibited conduct. Conduct of a like or
similar nature is also obviously prohibited. Examples include, but are not
limited to:
(a) Physical Abuse: Examples include hitting, kicking,
scratching, pinching, choking, spanking, pushing, slapping, twisting of head,
arms, or legs, tripping, the use of physical force which is unnecessary or
excessive or other physical contact with an individual inconsistent with
prescribed treatment or care;
(b) Verbal Abuse: Verbal conduct may be abusive because
of either the manner of communicating with or the content of the communication
with individuals. Examples include yelling, ridicule, harassment, coercion,
threats, intimidation, cursing, foul language or other forms of communication
which are derogatory or disrespectful of the individual, or remarks intended to
provoke a negative response by the individual;
(c) Abuse by Failure to Act: This includes neglecting
the care of the individual resulting in death (including suicide), physical or
psychological harm, or a significant risk of harm to the individual either by
failing to provide authorized and prescribed treatment or by failing to
intervene when an individual needs assistance such as denying food or drink or
leaving the individual unattended when staff presence is mandated;
(d) Sexual Abuse: Examples include:
(A) Contact of a sexual nature between staff and
individuals;
(B) Failure to discourage sexual advances toward staff
by individuals; and
(C) Permitting the sexual exploitation of individuals
or use of individual sexual activity for staff entertainment or other improper
purpose.
(e) Condoning Abuse: Permitting abusive conduct toward
an individual by any other staff, individual, or person; and
(f) Statutory Terms of Abuse: As defined in ORS
430.735: any death caused by other than accidental or natural means; any
physical injury caused by other than accidental means, or that appears to be at
variance with the explanation given of the injury; willful infliction of
physical pain or injury, sexual harassment or exploitation, including but not
limited to any sexual contact between an employee of a facility or community
program and an adult, and neglect that leads to physical harm or significant mental
injury through withholding of services necessary to maintain health and well
being.
(3) At times, persons may be required to utilize
self-defense. This includes control procedures that are designed to minimize
physical injury to the individual or other persons. Employees must use the
least restrictive procedures necessary under the circumstances for dealing with
an individual’s behaviors or defending against an individual’s attack. Abuse
does not include acts of self-defense or defense of an individual or other
person in response to the use or imminent use of physical force provided that
only the degree of force reasonably necessary for protection is used. When
excessively severe methods of control are used or when any conduct designed as
self-defense is carried beyond what is necessary under the circumstances to
protect the individual or other persons from further violence or assault, then
that conduct then becomes abuse.
Stat. Auth.: ORS 179.040, 413.042
Stats. Implemented: ORS 179.390,
426.385, 427.031, 430.210, 430.735-430.768
Hist.: OHA 12-2011(Temp), f. &
cert. ef. 7-1-11 thru 12-27-11; OHA 30-2011, f. 12-22-11, cert. ef. 12-23-11
943-045-0440
Reporting Requirements
(1) Oregon law requires mandatory reports and
investigations of allegations of abuse of individuals with disabilities.
Therefore, any person who has reasonable cause to believe that an incident of
abuse has occurred to an individual residing at a state hospital must
immediately report the incident according to the procedures set forth in the
applicable state hospital policy on abuse reporting.
(2) Any person participating in good faith in reporting
alleged abuse and who has reasonable grounds for reporting has immunity from
any civil liability that otherwise might be imposed or incurred based on the
reporting or the content of the report under ORS 430.753(1).
(3) The identity of the person reporting alleged abuse
is confidential. The Authority or OIT may reveal the names of abuse reporters
to law enforcement agencies, public agencies who certify or license facilities
or persons practicing therein, public agencies providing services to the
individuals, private agencies providing protective services for the
individuals, and the protection and advocacy system for individuals designated by
federal law. The identity of the person reporting alleged abuse may also be
disclosed in certain legal proceedings including, but not limited to, Human
Resources or other administrative proceedings and criminal prosecution.
Stat. Auth.: ORS 179.040, 413.042
Stats. Implemented: ORS 179.390,
426.385, 427.031, 430.210, 430.735-430.768
Hist.: OHA 12-2011(Temp), f. &
cert. ef. 7-1-11 thru 12-27-11; OHA 30-2011, f. 12-22-11, cert. ef. 12-23-11
943-045-0450
Preliminary Procedures
(1) Once a report of alleged abuse is made, the
following steps shall be taken to ensure both a proper investigation and
appropriate action are taken to ensure that individuals are free from any
threat of abuse:
(a) No later than two hours after receipt of the
allegation except for circumstances with good cause the Superintendent shall
notify OIT of the report of alleged abuse. OIT shall determine whether the
allegation, if true, would fit within the definition of abuse. This
determination shall be made in consultation with the Superintendent. The
determination must be made by OIT within 24 hours of receipt of the report of
abuse;
(b) If the allegation is determined not to fit the
definition of abuse, the Superintendent may take other appropriate action, such
as a referral to Human Resources for review as a performance issue, worksite
training, or take other systemic measures to resolve problems identified;
(c) The Superintendent with OIT shall ensure that if
the allegation meets the definition of child abuse under ORS 419B.005, or elder
abuse under ORS 124.050 that the allegation has been reported to the
appropriate agency.
(2) Immediately and no later than 24 hours after
determining that the allegation falls within the definition of abuse under this
policy or other applicable laws, the Superintendent shall:
(a) Provide appropriate protective services to the
individual that may include arranging for immediate protection of the
individual and the provision of appropriate services including medical, legal,
or other services necessary to prevent further abuse;
(b) Determine with OIT if there is reason to believe
that an investigation by an appropriate law enforcement agency is necessary,
and if so, request that such agency determine whether there is reason to
believe a crime has been committed;
(c) Make a report to any other appropriate agencies.
(d) Promptly notify the legal guardian (of an
adjudicated incapacitated individual) of the alleged incident and give an
explanation of the procedures that will be used to investigate and resolve the
matter; as well as the hospital’s responsibility and plan to provide
appropriate protective services;
(e) Contact the Director if the individual has
sustained serious injury.
Stat. Auth.: ORS 179.040, 413.042
Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210,
430.735-430.768
Hist.: OHA 12-2011(Temp), f. & cert. ef. 7-1-11 thru
12-27-11; OHA 30-2011, f. 12-22-11, cert. ef. 12-23-11
943-045-0460
Investigation by the Office of
Investigations and Training
(1) Investigation of allegations of abuse shall be
thorough and unbiased. OIT shall conduct an investigation of the allegation.
(2) OIT shall conduct interviews with any party
alleging an incident of abuse, the individual allegedly abused, and the person
accused. OIT shall also include interviews with persons appearing to be
involved in or having knowledge of the alleged abuse or surrounding
circumstances.
(3) All records necessary for the investigation shall
be available to OIT for inspection and copying. OIT shall collect information
which has relevance to the alleged event. This may include, but is not limited
to, individual or facility records, statements, diagrams, photographs, and
videos.
(4) If the facts in the case are disputed and a law
enforcement agency does not conduct a timely investigation or complete a
criminal investigation, OIT shall determine the manner and methods of
conducting the investigation.
(5) When a law enforcement agency is conducting a
criminal investigation of the alleged abuse, OIT shall also perform its own
investigation unless OIT is advised by the law enforcement agency that a
concurrent OIT investigation would interfere with the criminal investigation.
Stat. Auth.: ORS 179.040, 413.042
Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210,
430.735-430.768
Hist.: OHA 12-2011(Temp), f. & cert. ef. 7-1-11 thru
12-27-11; OHA 30-2011, f. 12-22-11, cert. ef. 12-23-11
943-045-0470
Abuse Investigation Report
(1) OIT shall complete the investigation and submit a
draft report to the Superintendent within 30 calendar days after initiating an
investigation. The investigation must be completed within 30 calendar days
unless the Director grants an extension. The Director may grant an extension
for good cause shown when law enforcement is conducting an investigation, when
a key party is unavailable, new evidence is discovered, the investigation is
complex (e.g. large numbers of witnesses need to be interviewed, taking into
account scheduling difficulties and limitations, consultation with experts, or
a detailed review of records over an extended period of time is required) or
for some other mitigating reason. The Director shall determine the length of
the extension.
(2) The Superintendent and OIT shall review the OIT or
law enforcement investigation report. The Superintendent and OIT shall also
review and discuss any other relevant reports or information.
(3) OIT shall determine whether the evidence
substantiates the allegation of abuse. In some instances, OIT may determine
that the evidence is inconclusive. The determination must be made within 15
calendar days from completion of the draft investigation report, unless a key
party is unavailable, additional evidence is discovered, or the Director grants
an extension for some other mitigating reason. Any determination not made
within the 15-day period must be made as soon as reasonably possible
thereafter.
(4) Once this review is complete, OIT shall prepare a
final report, which shall include:
(a) A statement of the allegations being investigated,
including the date, location and time;
(b) A list of protective services provided to the
adult;
(c) An outline of steps taken in the investigation, a
list of all witnesses interviewed and a summary of the information provided by
each witness;
(d) A summary of evidence and conclusion concerning the
allegation of abuse;
(e) A specific finding of substantiated, inconclusive,
or not substantiated;
(f) A plan of action necessary to prevent further abuse
of the individual;
(g) Any additional corrective action required by the
hospital and deadlines for the completion of these actions;
(h) A list of any notices made to licensing or
certifying agencies;
(i) The name and title of the person completing the
report; and
(i) The date written.
(5) If the allegation of abuse is substantiated, the
Superintendent shall direct that appropriate action be taken against the
responsible person commensurate with the seriousness of the conduct and any
aggravating or mitigating circumstances, including consideration of previous
conduct of record. If Human Resources are involved, as necessary to comply with
laws related to employee rights, additional investigation may be conducted.
(6) If the allegations are found to be inconclusive;
the Superintendent may request a review by Human Resources to determine the
need for any training or disciplinary action, as warranted by the facts and any
follow-up investigative work.
(7) The Superintendent shall ensure that appropriate
documentation exists as to the action taken as a result of an abuse
investigation.
(8) The Superintendent shall ensure that a copy of the
law enforcement investigation report is forwarded to OIT.
Stat. Auth.: ORS 179.040, 413.042
Stats. Implemented: ORS 179.390,
426.385, 427.031, 430.210, 430.735-430.768
Hist.: OHA 12-2011(Temp), f. &
cert. ef. 7-1-11 thru 12-27-11; OHA 30-2011, f. 12-22-11, cert. ef. 12-23-11
943-045-0480
Disclosure of Investigation Report
and Related Documents
(1) Investigation reports prepared by OIT are subject
to the following:
(a) Portions of the abuse investigation report and
investigatory documents are confidential and not available for public
inspection. Pursuant to ORS 430.763, names of persons who make reports of
abuse, witnesses, and the alleged abuse victim are confidential and shall not
be available for public inspection. Investigatory documents, including portions
of the abuse investigation report that contains “Individually identifiable
health information”, as that term is defined under ORS 192.519 and 45
CFR160.103, are confidential under HIPAA privacy rules, 45 CFR Part 160 and
164, and ORS 192.520 and 179.505 to 509.
(b) Notwithstanding subsection (a) of this rule, the
Authority and OIT shall make the confidential information, including any
photographs, available, if appropriate, to any law enforcement agency, to any
public agency that licenses or certifies facilities or licenses or certifies
the persons practicing therein, and to any public agency providing protective
services for the adult. The Authority and OIT shall also make the protective
services report and underlying investigatory materials available to any private
agency providing protective services for the adult and to the protection and
advocacy system designated pursuant to ORS 192.517(1).
(c) Persons or entities receiving confidential
information pursuant to this rule must maintain the confidentiality of the
information and may not redisclose the confidential information to unauthorized
persons or entities, as required by state or federal law.
(d) When the report is completed, a redacted version of
the abuse investigation report not containing any confidential information, the
disclosure of which would be prohibited by state or federal law shall be
available for public inspection.
(2) The OIT report shall be disclosed by OIT or the
Superintendent to:
(a) The Director of the Division and
(b) Any person designated by the Superintendent for
purposes related to the proper administration of the state hospital such as
assessing patterns of abuse or to respond to personnel actions and may be
disclosed in the Superintendent’s discretion;
(c) The individual involved;
(d) The guardian of an adjudicated incapacitated
person; and
(e) The person who allegedly abused the individual.
(3) Copies of all reports shall be maintained by the
Superintendent separate from employee personnel files. The chart of the
individual allegedly abused must contain a reference to the report sufficient
to enable authorized persons to retrieve and review the report.
Stat. Auth.: ORS 179.040, 413.042
Stats. Implemented: ORS 179.390,
426.385, 427.031, 430.210, 430.735-430.768
Hist.: OHA 12-2011(Temp), f. &
cert. ef. 7-1-11 thru 12-27-11; OHA 30-2011, f. 12-22-11, cert. ef. 12-23-11
943-045-0490
Consequences of Abuse
(1) All persons shall be subject to appropriate action
if found responsible for:
(a) Abusing an individual;
(b) Failing to report an alleged incident of abuse; or
(c) Refusing to give information or giving untruthful
information during an investigation of alleged abuse.
(2) Any discipline of an employee as a result of the
above-described conduct must be in conformance with any applicable standards
contained in state law or in a Collective Bargaining Agreement.
(3) Any employee dismissed for violating the abuse
policy may not be rehired in any capacity, may not be permitted to visit or
have any type of contact with individuals.
(4) Any volunteer found violating the abuse policy may
be denied visitation or any other contact with individuals.
(5) The Authority may immediately terminate the
contract of any contractor found violating the abuse policy. Any employee of
the contractor found violating the abuse policy may be excluded from the
grounds and may be subject to appropriate disciplinary action by the employer.
(6) Any visitor found in violation of the abuse policy
may be excluded from the grounds and will be subject to other appropriate
actions as determined by the Superintendent.
(7) Any employee, volunteer, contractor, contractor’s
employee, or visitor may be subject to criminal prosecution depending on the
outcome of any allegation referred to law enforcement for investigation.
(8) Any staff found to have violated the abuse policy
shall be reported to any appropriate professional licensing or certification
boards or associations.
Stat. Auth.: ORS 179.040, 413.042
Stats. Implemented: ORS 179.390,
426.385, 427.031, 430.210, 430.735-430.768
Hist.: OHA 12-2011(Temp), f. &
cert. ef. 7-1-11 thru 12-27-11; OHA 30-2011, f. 12-22-11, cert. ef. 12-23-11
943-045-0500
Notice of Abuse Policy
(1) Upon admission each individual, and guardian if
any, and family must be informed orally and in writing of the rights, policies,
abuse definitions and procedures concerning prohibition of abuse of
individuals.
(2) A clear and simple statement of the title and
number of this policy and how to seek advice about its content must be
prominently displayed in areas frequented by individuals at the state hospital.
(3) All staff shall be provided a copy of this rule,
either at the commencement of their employment, or duties, or, for current
staff, within 90 days of the effective date of this rule and once a year
thereafter. All staff must sign a form acknowledging receipt of this
information on the date of receipt.
(4) A summary of this policy shall be posted in the
state hospital in areas regularly frequented by visitors and in a manner
designed to notify visitors of the policy. Copies of the complete policy shall
be provided to visitors upon request.
Stat. Auth.: ORS 179.040, 413.042
Stats. Implemented: ORS 179.390,
426.385, 427.031, 430.210, 430.735-430.768
Hist.: OHA 12-2011(Temp), f. &
cert. ef. 7-1-11 thru 12-27-11; OHA 30-2011, f. 12-22-11, cert. ef. 12-23-11
943-045-0510
Retaliation
(1) No state hospital staff or other person shall
retaliate against any person who reports in good faith suspected abuse or
against the individual with respect to any report.
(2) Any state hospital staff or other person who
retaliates against any person because of a report of suspected abuse or neglect
shall be liable according to ORS 430.755, in a private action to that person
for actual damages and, in addition, may be subject to a penalty of up to $1,000,
notwithstanding any other remedy provided by law.
Stat. Auth.: ORS 179.040, 413.042
Stats. Implemented: ORS 179.390,
426.385, 427.031, 430.210, 430.735-430.768
Hist.: OHA 12-2011(Temp), f. &
cert. ef. 7-1-11 thru 12-27-11; OHA 30-2011, f. 12-22-11, cert. ef. 12-23-11
943-045-0520
Quality Assurance Review
(1) The State Hospitals shall report on critical
indicators, identified by the Authority; and on quality improvement activities
undertaken to improve any identified issues.
(2) These reports must be provided to the Authority
monthly.
(3) Representatives from the State Hospitals and OIT
shall meet quarterly with the Authority’s Director or designee. They shall regularly
review quality indicators and any other Authority generated information
regarding the abuse and neglect system in the State Hospitals.
(4) The Authority must make the information part of any
quality improvement activities of the Authority.
Stat. Auth.: ORS 179.040, 413.042
Stats. Implemented: ORS 179.390,
426.385, 427.031, 430.210, 430.735-430.768
Hist.: OHA 12-2011(Temp), f. &
cert. ef. 7-1-11 thru 12-27-11; OHA 30-2011, f. 12-22-11, cert. ef. 12-23-11
Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.
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