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The Oregon Administrative Rules contain OARs filed through November 15, 2014
 
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DEPARTMENT OF HUMAN SERVICES,
ADMINISTRATIVE SERVICES DIVISION AND DIRECTOR'S OFFICE

 

DIVISION 45

OFFICE OF ADULT ABUSE PREVENTION AND INVESTIGATIONS

Review of Substantiated Physical Abuse When Self-Defense is Asserted at State Hospitals
and Department-Operated Residential Training Homes

407-045-0000

Purpose

The purpose of these rules is to outline procedures for employees to have notice and to request a review of a determination when a physical abuse investigation in a state hospital or Department-operated residential training home results in a "substantiated" determination and the person alleged to be responsible for the abuse indicates their conduct was in self-defense. These rules outline a process to provide review, upon request, by the Human Services Abuse Review Committee (HSARC) of the Department of Human Services (Department). The HSARC makes a recommendation to the Director to change or keep the determination made in the investigation by the Office of Investigations and Training (OIT).

Stat. Auth: ORS 179.040, 409.010 & 409.050
Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210 & 430.735 - 430.768
Hist.: DHSD 5-2006, f. & cert. ef. 6-1-06

407-045-0010

Definitions

(1) "Director" means Director of Oregon's Department of Human Services or their designee.

(2) "Department" means the Oregon Department of Human Services.

(3) "Human Services Abuse Review Committee (HSARC)" means a standing group of individuals appointed by the Director, none of whom were involved in the investigation that resulted in the specific OIT substantiated determination under review, and five of whom will be assigned for each state hospital and the Department-operated training homes.

(4) "Legal Finding" means a court finding, guilty plea or guilty verdict which identifies that the person inquiring about or requesting a review was responsible for the abuse or any other offense stemming from the employee's conduct which was the subject of the OIT substantiated determination.

(5) "Notice of OIT Substantiated Determination" means that OIT determined at the conclusion of an investigation of alleged abuse that there is reasonable cause to believe physical abuse occurred; and that there is reasonable cause to believe that a specific person or persons employed by the state hospital or residential training home were responsible for the abuse.

(6) "Notice of Waived Rights for Review" means a written notice that OIT staff will send to a person requesting a review, when OIT has documentation that a person refused to accept delivery of the notice of OIT substantiated determination or that the person accepted the delivery and did not request a review within 30 calendar days, or when there is a legal determination which indicates that the person accused was responsible for the subject abuse.

(7) "OIT" means the Office of Investigations and Training of the Department which performed the investigation of alleged abuse at the state hospitals or residential training home.

(8) "OIT Determination" is a finding that completes an OIT investigation. Determinations are defined in OAR 410-009-0060 as follows:

(a) "Substantiated" means that the evidence supports a conclusion that there is reasonable cause to believe that abuse occurred.

(b) "Not Substantiated" means that the evidence does not support a conclusion that there is reasonable cause to believe that abuse occurred.

(c) "Inconclusive" means that the available evidence does not support a final decision that there was reasonable cause to believe that abuse occurred or did not occur.

(d) OIT must make a finding of not substantiated if OIT finds that:

(A) The person was acting in self-defense in response to the use or imminent use of physical force.

(B) The amount of force used was reasonably necessary to protect the person from violence of assault; and

(C) The person used the least restrictive procedures necessary under the circumstances in accordance with an approved behavior management plan or other method of response approved by the Department.

(9) "Department approved behavior response" includes:

(a) "Oregon Intervention System" or "OIS" means a system of providing training to people who work with designated individuals with developmental disabilities, to provide elements of positive behavior support and non-aversive behavior intervention. The system uses principles of pro-active support and describes approved physical intervention techniques that are used to maintain health and safety.

(b) "Professional Assault Crisis Training Program" or "Pro-Act" means a program designed to provide employees who work with individuals at state hospitals with a systematic approach to intervention during incidents of potential assault. The program is an approach that stresses intervention principles to enable staff to remain safe and minimize the risk of injury to all.

(c) Successor system to OIS or Pro-Act.

(10) "Person requesting review" or "Requestor" means an individual who is identified as the person accused of abuse in an OIT substantiated determination and who requests a review of the determination because the individual believes it was self-defense and not abuse and therefore that the determination is wrong.

(11) "Request for Review by HSARC" means a written request from a person requesting review. The specific requirements for a request for review are described in OAR 407-045-0070.

(12) "Residential Training Home" means State-operated comprehensive 24-hour residential programs licensed by the Department of Human Services under ORS 443.400(7) and (8).

(13) "Self-Defense" means the use of physical force upon another person in self-defense or to defend a third person.

(14) "State Hospital" means Oregon State Hospital and Blue Mountain Recovery Center (Eastern Oregon Psychiatric Center).

Stat. Auth: ORS 179.040, 409.010 & 409.050
Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210 & 430.735 - 430.768
Hist.: DHSD 5-2006, f. & cert. ef. 6-1-06

407-045-0020

Department Employee - Application of Departmental Employee Policies

The Department will refer to Departmental employee policies for additional or different requirements for individuals identified as responsible for substantiated abuse who are employees of the Department.

Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 409.050
Hist.: DHSD 1-2006, f. & cert. ef. 3-1-06

407-045-0030

Providing Notice of an OIT Substantiated Physical Abuse Determination after the Effective Date of these Rules when Self-Defense was Asserted

When OIT staff determine a person is responsible for substantiated abuse and that person asserted self-defense as an explanation of their conduct, after January 1, 2006, OIT will deliver a notice of substantiated determination along with a copy of the redacted report summary and conclusions to the person identified, in one of the following ways:

(1) By certified mail, restricted delivery, with a return receipt to the last known address; or

(2) By hand delivery; hand-delivered notice must be addressed to the individual, the original is to be signed and dated by the individual to whom it is addressed to acknowledge receipt, and signed by the person delivering the notice. OIT staff will place the document with original signature in the case record.

Stat. Auth: ORS 179.040, 409.010 & 409.050
Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210 & 430.735 - 430.768
Hist.: DHSD 5-2006, f. & cert. ef. 6-1-06

407-045-0040

Information Included in the Notice of an OIT Physical Abuse Substantiated Determination when Self-Defense was Asserted

The notice of an OIT substantiated determination when self-defense is asserted will include all of the following.

(1) The case number assigned to the investigation that resulted in the OIT substantiated determination;

(2) The full name of the individual who has been identified as responsible for the abuse as it is recorded in the case record;

(3) A statement that the OIT determination was recorded as substantiated including a description of the abuse identified and a redacted summary and conclusions of the investigation report;

(4) A statement about the right of the individual to make a request for review of the substantiated determination;

(5) Instructions for making a request for review;

(6) A statement that the person waives the right to request a review if the request for review is not received by OIT within 30 calendar days from the date of receipt of the notice of OIT substantiated determination, as documented by the U.S. Postal Service;

(7) A statement that the HSARC will consider all relevant information including the OIT investigation and determination, and all information provided by the person requesting review in their request for review, and that the HSARC will not: re-interview the alleged victim, interview or meet with the person requesting a review, or others associated with the requestor, or others mentioned in the investigation, or conduct a further investigation of the allegation of abuse; and

(8) A statement that OIT will send the requestor notification of the Director's decision within 60 calendar days of receiving a written request for review.

Stat. Auth: ORS 179.040, 409.010, 409.050
Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210 & 430.735 - 430.768
Hist.: DHSD 5-2006, f. & cert. ef. 6-1-06

407-045-0050

OIT Responsibilities When a Person Inquires About a Review of an OIT Substantiated Physical Abuse Determination when Self-Defense was Asserted

OIT staff will take the following steps when a person inquires about a review of an OIT substantiated physical abuse determination.

(1) OIT staff will record the individual's name and address, and a telephone number when available.

(2) OIT staff will review the records to determine whether:

(a) A notice of an OIT substantiated determination was delivered to the person; or

(b) Whether the person refused delivery.

(3) If OIT staff determine that either the notice was delivered as evidenced by the returned receipt, or that the person refused the delivery as evidenced by the returned receipt, the staff may prepare and deliver a notice of waived rights for review.

(4) If OIT staff determine that the notice was not delivered as evidenced by the returned receipt, the staff will deliver a notice of OIT substantiated determination as outlined in OAR 407-045-0030 and 407-045-0060.

Stat. Auth: ORS 179.040, 409.010, 409.050
Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210 & 430.735 - 430.768
Hist.: DHSD 5-2006, f. & cert. ef. 6-1-06

407-045-0060

Making a Request for a Review of an OIT Substantiated Physical Abuse Determination when Self-Defense was Asserted

(1) A person who meets the criteria outlined in OAR 407-045-0050 may make a written request for review.

(2) A person requesting review will use information found on the notice of OIT substantiated determination to prepare a written request for review. The written request for review must be delivered to OIT within 30 calendar days of the receipt of the notice of OIT substantiated determination and must include the following items:

(a) Date the request for review is written;

(b) Case number (found on the notice of OIT substantiated determination);

(c) Full name of the person identified as responsible in the OIT substantiated determination;

(d) The reason the person is requesting the review and an explanation of why the person believes the OIT substantiated determination is wrong and they believe it was self-defense;

(e) The person's current name (if it has changed from name noted in (c) above);

(f) The person's current street address, city, state, zip code and telephone number; and

(g) The person's signature.

Stat. Auth: ORS 179.040, 409.010, 409.050
Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210, 430.735 - 430.768
Hist.: DHSD 5-2006, f. & cert. ef. 6-1-06

407-045-0070

Determining When Legal Findings Limit or Preclude a Right to Request a Review

(1) When a criminal process is pending, a review is not allowed under this rule until it is determined that no further criminal investigation will occur.

(2) A legal criminal investigation or finding relevant to the substantiated physical abuse determination related to the incident where self-defense was asserted will preclude a person's right to a review.

Stat. Auth: ORS 179.040, 409.010, 409.050
Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210 & 430.735 - 430.768
Hist.: DHSD 5-2006, f. & cert. ef. 6-1-06

407-045-0080

OIT Responsibilities Related to Notice and Review

(1) If an individual asks to review the investigation report, ORS 179.505 (public record law), the Health Insurance Portability and Accountability Act (HIPAA) and OAR 410-009-0130, will govern inspection and copying.

(2) OIT staff will maintain records to demonstrate the following, when applicable:

(a) Whether OIT delivered a notice of OIT substantiated physical abuse determination when self-defense asserted;

(b) Whether or not the notice of OIT substantiated determination was received by the addressee, as evidence by a returned receipt documenting the notice was received, refused, or not received within the 15 calendar day time period as provided by the U.S. Postal Service;

(c) Date a request for review was received; and

(d) When a review was made, whether the notice of the HSARC's decision was received by the person accused or not, as evidenced by a returned receipt documenting the notice was received, refused, or not received within the 15 calendar day time period as provided by the U.S. Postal Service.

(3) The OIT Director or designee will maintain a comprehensive record of the reviews held of OIT substantiated physical abuse determinations when self-defense was asserted. The record will include but is not limited to the date, case number, HSARC's recommendation and the Director's decision.

Stat. Auth: ORS 179.040, 409.010, 409.050
Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210 & 430.735 - 430.768
Hist.: DHSD 5-2006, f. & cert. ef. 6-1-06

407-045-0090

HSARC Review of OIT Substantiated Physical Abuse Determinations when Self-Defense was Asserted

(1) The HSARC must conduct a review within 30 calendar days of OIT's receipt of a request for review of an OIT substantiated physical abuse determination where self-defense was asserted.

(2) If the request for review has been retained as per OAR 407-045-0070 and a criminal finding was not made that would preclude a review, the review must occur within 30 calendar days of OIT's receipt of documentation of the legal proceeding's outcome.

(3) The HSARC will operate as follows:

(a) The HSARC will consider all relevant information including the OIT investigation report and determination, and information provided by the person requesting review. The HSARC will not: re-interview the alleged victim, interview or meet with the person requesting a review, or others associated with the requestor, or others mentioned in the investigation, or conduct a further investigation of the allegation of abuse.

(b) The HSARC will have the authority to recommend changing or maintaining an OIT determination based upon their review;

(c) When reviewing an OIT substantiated physical abuse determination, the HSARC will determine whether there is or is not reasonable cause to believe that abuse occurred and will make a recommendation that the allegation is not substantiated if:

(A) The person was acting in self-defense in response to the use or imminent use of physical force;

(B) The amount of force used was reasonably necessary to protect the person from violence of assault; and

(C) the person used the least restrictive procedures necessary under the circumstances in accordance with an approved behavior management plan or other method of Department approved response by rule.

(d) The HSARC will make their recommendation to the Director of whether the OIT determination should be retained or changed by majority vote of the participating committee members.

(e) The HSARC shall prepare and deliver their written recommendation to the Director within 15 calendar days after conclusion of their review.

Stat. Auth: ORS 179.040, 409.010, 409.050
Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210 & 430.735 - 430.768
Hist.: DHSD 5-2006, f. & cert. ef. 6-1-06

407-045-0100

Providing the HSARC's Recommendation to the Director

The HSARC's recommendation will include the following items:

(1) Whether there is or is not reasonable cause to believe the person requesting the review was responsible for the abuse;

(2) The recommendation of the HSARC about whether the OIT substantiated physical abuse determination should be retained or changed to not substantiated; and

(3) A summary of the information upon which the recommendation was based.

Stat. Auth: ORS 179.040, 409.010, 409.050
Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210 & 430.735 - 430.768
Hist.: DHSD 5-2006, f. & cert. ef. 6-1-06

407-045-0110

Director's Responsibilities Related to Decision and Notice

(1) After receipt of the HSARC recommendation, the Director must make a decision and send written notification of their final decision to OIT within 15 calendar days of their determination.

(2) The decision of the Director is the final agency action.

(3) The Director will deliver a copy of the decision to OIT, and the OIT Director or designee will place the request for review, and a copy of the HSARC's recommendation and Director's decision into the case file. No change will be made in the existing written case record.

(4) OIT will send the Director's decision by certified mail, restricted delivery, with a return receipt requested, to the person requesting review within 15 calendar days of the Director's final decision.

(5) OIT staff will notify the state hospital and residential training program operated by the Department of the decision within 15 calendar days of the Director's decision.

(6) OIT will notify anyone else who received the initial substantiated determination of the Director's decision when there is a change in the determination.

Stat. Auth: ORS 179.040, 409.010, 409.050
Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210 & 430.735 - 430.768
Hist.: DHSD 5-2006, f. & cert. ef. 6-1-06

Abuse Reporting and Protective Services in Community Programs and Community Facilities

407-045-0250

Purpose

These rules, OAR 407-045-0250 to 407-045-0370, prescribe standards and procedures for the investigation of, assessment for and provision of protective services in community programs and community facilities for adults with developmental disabilities, and the nature and content of the abuse investigation and protective services report.

Stat. Authority: ORS 179.040 & 409.050
Stats. Implemented: ORS 430.735–430.765, 443.400–443.460, 443.705–443.825
Hist.: MHD 5-1994, f. 8-22-94 & cert. ef. 9-1-94; Renumbered from 309-040-0200, OMAP 87-2004, f. 11-10-04, cert. ef. 12-1-04; Renumbered from 410-009-0050, DHSD 5-2007, f. 6-29-07, cert. ef. 7-1-07; DHSD 3-2009, f. & cert. ef. 5-1-09; DHSD 4-2010, f. & cert. ef. 6-29-10; DHSD 9-2011, f. 12-1-11, cert. ef. 12-5-11

407-045-0260

Definitions

As used in OAR 407-045-0250 to 407-045-0370, the following definitions apply:

(1) “Abuse of an adult with developmental disabilities” means:

(a) “Abandonment” including desertion or willful forsaking of an adult or the withdrawal or neglect of duties and obligations owed an adult by a caregiver or other person.

(b) Death of an adult caused by other than accidental or natural means or occurring in unusual circumstances.

(c) “Financial exploitation” including:

(A) Wrongfully taking the assets, funds or property belonging to or intended for the use of an adult.

(B) Alarming an adult by conveying a threat to wrongfully take or appropriate money or property of the adult if the adult would reasonably believe that the threat conveyed would be carried out.

(C) Misappropriating, misusing or transferring without authorization any money from any account held jointly or singly by an adult.

(D) Failing to use the income or assets of an adult effectively for the support and maintenance of the adult. “Effectively” means use of income or assets for the benefit of the adult.

(d) “Involuntary seclusion” means the involuntary seclusion of an adult for the convenience of a caregiver or to discipline the adult. Involuntary seclusion may include placing restrictions on an adult's freedom of movement by restriction to his or her room or a specific area, or restriction from access to ordinarily accessible areas of the facility, residence or program, unless agreed to by the Individual Support Plan (ISP) team included in an approved Behavior Support Plan (BSP) or included in a brokerage plan’s specialized support. Restriction may be permitted on an emergency or short term basis when an adult’s presence would pose a risk to health or safety to the adult or others.

(e) “Neglect” including:

(A) Active or passive failure to provide the care, supervision or services necessary to maintain the physical and mental health of an adult that may result in physical harm or significant emotional harm to an adult. Services include but are not limited to the provision of food, clothing, medicine, housing, medical services, assistance with bathing or personal hygiene or any other services essential to the well-being of the adult.

(B) Failure of a caregiver to make a reasonable effort to protect an adult from abuse.

(C) Withholding of services necessary to maintain the health and well-being of an adult which leads to physical harm of an adult.

(f) “Physical abuse” means:

(A) Any physical injury by other than accidental means or that appears to be at variance with the explanation given for the injury.

(B) Willful infliction of physical pain or injury.

(C) Physical abuse is presumed to cause physical injury, including pain, to adults otherwise incapable of expressing pain.

(g) “Sexual abuse” including:

(A) An act that constitutes a crime under ORS 163.375 (rape in the first degree), 163.405 (sodomy in the first degree), 163.411 (unlawful sexual penetration in the first degree), 163.415 (sexual abuse in the third degree), 163.425 (sexual abuse in the second degree), 163.427 (sexual abuse in the first degree), 163.456 (public indecency) or 163.467 (private indecency).

(B) Sexual contact with a nonconsenting adult or with an adult considered incapable of consenting to a sexual act under ORS 163.315.

(C) Sexual harassment, sexual exploitation or inappropriate exposure to sexually explicit material or language including requests for sexual favors. Sexual harassment or exploitation includes but is not limited to any sexual contact or failure to discourage sexual contact between an employee of a community facility or community program, provider or other caregiver and an adult. For situations other than those involving an employee, provider or other caregiver and an adult, sexual harassment or exploitation means unwelcome physical sexual contact and other physical conduct directed toward an adult.

(D) Any sexual contact between an employee of a facility or paid caregiver and an adult served by the facility or caregiver. Sexual abuse does not mean consensual sexual contact between an adult and a paid caregiver who is the spouse or partner of the adult.

(E) Any sexual contact that is achieved through force, trickery, threat or coercion.

(F) Any sexual contact between an adult with a developmental disability and a relative of the person with a developmental disability other than a spouse or partner. “Relative” means a parent, grandparent, children, brother, sister, uncle, aunt, niece, nephew, half-brother, half-sister, stepparent or stepchild.

(G) As defined in ORS 163.305, “sexual contact” means any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party.

(h) “Wrongful restraint” means:

(A) A wrongful use of a physical or chemical restraint, excluding an act of restraint prescribed by a licensed physician, by any adult support team approved plan, or in connection with a court order.

(B) “Wrongful restraint” does not include physical emergency restraint to prevent immediate injury to an adult who is in danger of physically harming himself or herself or others, provided only that the degree of force reasonably necessary for protection is used for the least amount of time necessary.

(i) “Verbal abuse” includes threatening significant physical or emotional harm to an adult through the use of:

(A) Derogatory or inappropriate names, insults, verbal assaults, profanity or ridicule.

(B) Harassment, coercion, punishment, deprivation, threats, implied threats, intimidation, humiliation, mental cruelty or inappropriate sexual comments.

(C) A threat to withhold services or supports, including an implied or direct threat of termination of services. “Services” include but are not limited to the provision of food, clothing, medicine, housing, medical services, assistance with bathing or personal hygiene or any other services essential to the well-being of an adult.

(D) For purposes of this section, verbal conduct includes but is not limited to the use of oral, written or gestured communication that is directed to an adult or within their hearing distance, or sight if gestured, regardless of their ability to comprehend. In this circumstance the assessment of the conduct is based on a reasonable person standard.

(E) The emotional harm that can result from verbal abuse may include but is not limited to anguish, distress or fear.

(j) An adult who in good faith is voluntarily under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner shall for this reason alone not be considered subjected to abuse.

(2) “Abuse Investigation and Protective Services Report” means a completed report.

(3) “Adult” means an individual who is 18 years of age or older who:

(a) Has a developmental disability and is currently receiving services from a community program or facility or was previously determined eligible for services as an adult by a community program or facility;

(b) Receives services from a community program or facility or care provider which is licensed or certified by or contracts with the Department; and

(c) Is the alleged abuse victim.

(4) “Adult protective services” means the necessary actions taken to prevent abuse or exploitation of an adult to prevent self-destructive acts and to safeguard an allegedly abused adult’s person, property or funds.

(5) “Brokerage” or “Support service brokerage” means an entity, or distinct operating unit within an existing entity, that performs the functions listed in OAR 411-340-0120(1)(a) to (g) associated with planning for and implementation of support services for an adult with developmental disabilities.

(6) “Caregiver” means an individual or facility that has assumed responsibility for all or a portion of the care of an adult as a result of a contract or agreement.

(7) “Community facility” means a community residential treatment home or facility, community residential facility or adult foster home.

(8) “Community program” means the community developmental disabilities program as established in ORS 430.610 to 430.695.

(9) “Designee” means the community program.

(10) “Department” means the Department of Human Services.

(11) “Inconclusive” means there is insufficient evidence to conclude the alleged abuse occurred or did not occur by a preponderance of the evidence. The inconclusive determination may be used only in the following circumstances:

(a) After diligent efforts have been made, the protective services investigator is unable to locate the person alleged to have committed the abuse or cannot locate the alleged victim or another individual who might have information critical to the investigation; or

(b) Relevant records or documents are unavailable or there is conflicting or inconsistent information from witnesses, documents or records with the result that after the investigation is complete, there is insufficient evidence to support a substantiated or not substantiated conclusion.

(12) “Law enforcement agency” means any city or municipal police department, county sheriff’s office, the Oregon State Police or any district attorney.

(13) “Mandatory reporter” means any public or private official who, while acting in an official capacity, comes in contact with and has reasonable cause to believe that an adult has suffered abuse or that any individual with whom the official comes in contact while acting in an official capacity has abused an adult. Pursuant to ORS 430.765(2), psychiatrists, psychologists, clergy and attorneys are not mandatory reporters with regard to information received through communications that are privileged under ORS 40.225 to 40.295.

(14) “Not substantiated” means the preponderance of evidence establishes the alleged abuse did not occur.

(15) “OIT” means the Department’s Office of Investigations and Training.

(16) “Provider agency” means an entity licensed or certified to provide services or which is responsible for the management of services to clients.

(17) “Public or private official” means:

(a) Physician, naturopathic physician, osteopathic physician, psychologist, chiropractor or podiatrist, including any intern or resident;

(b) Licensed practical nurse, registered nurse, nurse’s aide, home health aide or employee of an in-home health services organization;

(c) Employee of the Department, Oregon Health Authority, county health department, community mental health program or community developmental disabilities program or private agency contracting with a public body to provide any community mental health service;

(d) Peace officer;

(e) Member of the clergy;

(f) Licensed clinical social worker;

(g) Physical, speech or occupational therapist;

(h) Information and referral, outreach or crisis worker;

(i) Attorney;

(j) Licensed professional counselor or licensed marriage and family therapist;

(k) Firefighter or emergency medical technician; or

(l) Any public official who comes in contact with adults in the performance of the official’s duties.

(18) “Substantiated” means that the preponderance of evidence establishes the abuse occurred.

(19) “Unbiased investigation” means an investigation that is conducted by a community program that does not have an actual or potential conflict of interest with the outcome of the investigation.

Stat. Authority: ORS 179.040 & 409.050
Stats. Implemented: ORS 430.735 - 430.765, 443.400 - 443.460 & 443.705 - 443.825
Hist.: MHD 5-1994, f. 8-22-94 & cert. ef. 9-1-94; Renumbered from 309-040-0210, OMAP 87-2004, f. 11-10-04, cert. ef. 12-1-04; Renumbered from 410-009-0060, DHSD 5-2007, f. 6-29-07, cert. ef. 7-1-07; DHSD 3-2009, f. & cert. ef. 5-1-09; DHSD 12-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-29-10; DHSD 4-2010, f. & cert. ef. 6-29-10; DHSD 7-2010(Temp), f. & cert. ef. 8-5-10 thru 1-31-11; DHSD 11-2010, f. 12-30-10, cert. ef. 1-1-11; DHSD 9-2011, f. 12-1-11, cert. ef. 12-5-11

407-045-0280

Training for Adults Investigating Reports of Alleged Abuse

(1) The Department shall provide sufficient and timely training and consultation to community programs to ensure that the community program is able to conduct a thorough and unbiased investigation and reach a conclusion about the abuse. Training shall include initial and continuing education of any individual designated to conduct protective services investigations.

(2) The training shall address the cultural and social diversity of the State of Oregon.

Stat. Authority: ORS 179.040 & 409.050
Stats. Implemented: ORS 430.735–430.765, 443.400–443.460, 443.705–443.825
Hist.: OMAP 87-2004, f. 11-10-04, cert. ef. 12-1-04; Renumbered from 410-009-0080, DHSD 5-2007, f. 6-29-07, cert. ef. 7-1-07; DHSD 3-2009, f. & cert. ef. 5-1-09; DHSD 4-2010, f. & cert. ef. 6-29-10; DHSD 9-2011, f. 12-1-11, cert. ef. 12-5-11

407-045-0290

General Duties of the Community Program and Initial Action on Report of Alleged Abuse

(1) For the purpose of carrying out these rules, community programs are Department designees.

(2) If mandatory reporters have reasonable cause to believe abuse of an adult has occurred, the reporter must report the abuse to the community program, the Department, or a local law enforcement agency within the county where the individual making the report is at the time of contact.

(3) Each community program shall designate at least one employee to conduct protective services investigations. Community programs shall require their designated protective services investigators to participate in training and to demonstrate an understanding of investigative core competencies.

(4) If the Department or community program has reasonable cause to believe abuse occurred, it must immediately notify the appropriate public licensing or certifying agency and provide a copy of the abuse investigation and completed protective services report.

(5) If the Department or community program has reasonable cause to believe that an individual licensed or certified by any state agency to provide care has committed abuse, it must immediately notify the appropriate state licensing or certifying agency and provide that agency with a copy of the abuse investigation and completed protective services report.

(6) The Department or community program may share information prior to the completion of the abuse investigation and protective services report if the information is necessary for:

(a) The provision of protective services; or

(b) The function of licensing and certifying agencies or law enforcement agencies.

(7) Each community program must establish an after hours reporting system.

(8) Upon receipt of any report of alleged abuse or upon receipt of a report of a death that may have been caused by other than accidental or natural means, the community program must begin:

(a) Investigation into the nature and cause of the alleged abuse within one working day of receipt of the report to determine if abuse occurred or whether a death was caused by abuse;

(b) Assessment of the need for protective services; and

(c) Provision of protective services, if protective services are needed.

(9) The community program receiving a report alleging abuse must document the information required by ORS 430.743(1) and any additional reported information. The community program must attempt to elicit the following information from the individual making a report:

(a) The name, age and present location of the adult;

(b) The names and addresses of the adult’s programs or facilities responsible for the adult’s care;

(c) The nature and extent of the alleged abuse, including any evidence of previous abuse of the adult or evidence of previous abuse by the person alleged to have committed the abuse;

(d) Any information that led the individual making the report to suspect abuse had occurred;

(e) Any information that the individual believes might be helpful in establishing the cause of the abuse and the identity of the person alleged to have committed the abuse; and

(f) The date of the incident.

(10) The community program shall maintain all reports of abuse in a confidential location.

(11) If there is reason to believe a crime has been committed, the community program must contact the law enforcement agency with jurisdiction in the county where the report is made.

(12) Upon receipt of a report of abuse, the community program must notify the case manager providing primary case management services to the adult. The community program must also notify the guardian of the adult unless doing so would undermine the integrity of the abuse investigation or a criminal investigation because the guardian or case manager is suspected of committing abuse.

(13) If there is reasonable cause to believe that abuse has occurred, the community program must determine if the adult is in danger or in need of immediate protective services and shall provide those services immediately. Under these circumstances, the community program must also advise the provider agency, brokerage or guardian about the allegation and must include any information appropriate or necessary for the health, safety and best interests of the adult in need of protection.

(14) The community program shall immediately, but no later than one working day, notify the Department it has received a report of abuse, in the format provided by the Department.

(15) In addition to the notification required by section (12) of these rules, if the community program determines that a report will be assigned for investigation, the community program must notify the provider agency, brokerage, guardian and any other individual with responsibility for providing services and protection, unless doing so would compromise the safety, health or best interests of the adult in need of protection, or would compromise the integrity of the abuse investigation or a criminal investigation. The notice shall include information that the case shall be assigned for investigation, identify the investigator and provide information regarding how the assigned investigator may be contacted. The notice must be provided within five working days from the date the report was received.

(16) If the community program determines from the report that there is no reasonable cause to believe abuse occurred, the community program shall notify the provider agency or brokerage within five working days that a protective services investigation shall not commence and explain the reasons for that decision. The community program shall document the notice and maintain a record of all notices.

(17) The community program or law enforcement agency shall notify the appropriate medical examiner in cases where the community program or law enforcement agency finds reasonable cause to believe that an adult has died as a result of abuse or where the death occurred under suspicious or unknown circumstances.

Stat. Authority: ORS 179.040 & 409.050
Stats. Implemented: ORS 430.735–430.765, 443.400–443.460, 443.705–443.825
Hist.: MHD 5-1994, f. 8-22-94 & cert. ef. 9-1-94; Renumbered from 309-040-0230, OMAP 87-2004, f. 11-10-04, cert. ef. 12-1-04; Renumbered from 410-009-0090, DHSD 5-2007, f. 6-29-07, cert. ef. 7-1-07; DHSD 3-2009, f. & cert. ef. 5-1-09; DHSD 12-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-29-10; DHSD 4-2010, f. & cert. ef. 6-29-10; DHSD 9-2011, f. 12-1-11, cert. ef. 12-5-11

407-045-0300

Investigation of Alleged Abuse

(1) Investigation of abuse shall be thorough and unbiased. Community programs may not investigate allegations of abuse made against employees of the community program. Investigations of community program staff shall be conducted by the Department or other community programs not subject to an actual or potential conflict of interest.

(2) In conducting an abuse investigation, the investigator must:

(a) Make in-person contact with the adult;

(b) Interview the adult, witnesses, the person alleged to have committed the abuse, and other individuals who may have knowledge of the facts of the abuse allegation or related circumstances. Interviews must be conducted in-person where practicable. The investigator must attempt to elicit the date of birth for each individual interviewed and shall obtain the date of birth of any person alleged to have committed the alleged abuse;

(c) Review all evidence relevant and material to the complaint; and

(d) Photograph the adult consistent with forensic guidelines, or arrange for the adult to be photographed, to preserve evidence of the alleged abuse and of the adult’s physical condition at the time of investigation, unless the adult knowingly refuses.

(3) All records necessary for the investigation shall be available to the community program for inspection and copying. A community facility shall provide community programs access to employees, the adult, and the premises for investigation purposes.

(4) When a law enforcement agency is conducting a criminal investigation of the alleged abuse, the community program shall also perform its own investigation as long as it does not interfere with the law enforcement agency investigation under the following circumstances:

(a) There is potential for action by a licensing or certifying agency;

(b) Timely investigation by law enforcement is not probable; or

(c) The law enforcement agency does not complete a criminal investigation.

(5) When a law enforcement agency is conducting an investigation of the alleged abuse, the community program must communicate and cooperate with the law enforcement agency.

Stat. Authority: ORS 179.040 & 409.050
Stats. Implemented: ORS 430.735–430.765, 443.400–443.460, 443.705–443.825
Hist.: MHD 5-1994, f. 8-22-94 & cert. ef. 9-1-94; Renumbered from 309-040-0240, OMAP 87-2004, f. 11-10-04, cert. ef. 12-1-04; Renumbered from 410-009-0100, DHSD 5-2007, f. 6-29-07, cert. ef. 7-1-07; DHSD 3-2009, f. & cert. ef. 5-1-09; DHSD 4-2010, f. & cert. ef. 6-29-10

407-045-0310

Assessment for and Provision of Protective Services to the Adult

The community program shall ensure that appropriate and necessary protective services are provided to the adult to prevent further abuse and must be undertaken in a manner that is least intrusive to the adult and provide for the greatest degree of independence available within existing resources. Assessment for the provision of protective services may include:

(1) Arranging for the immediate protection of the adult;

(2) Contacting the adult to assess his or her ability to protect his or her own interest or give informed consent;

(3) Determining the ability of the adult to understand the nature of the protective service and his or her willingness to accept services;

(4) Coordinating evaluations to determine or verify the adult’s physical and mental status, if necessary;

(5) Assisting in and arranging for appropriate services and alternative living arrangements;

(6) Assisting in or arranging the medical, legal, financial, or other necessary services to prevent further abuse;

(7) Providing advocacy to assure the adult’s rights and entitlements are protected; and

(8) Consulting with the community facility, program, brokerage, or others as appropriate in developing recommendations or requirements to prevent further abuse.

Stat. Authority: ORS 179.040 & 409.050
Stats. Implemented: ORS 430.735–430.765, 443.400–443.460, 443.705–443.825
Hist.: MHD 5-1994, f. 8-22-94 & cert. ef. 9-1-94; Renumbered from 309-040-0250, OMAP 87-2004, f. 11-10-04, cert. ef. 12-1-04; Renumbered from 410-009-0110, DHSD 5-2007, f. 6-29-07, cert. ef. 7-1-07; DHSD 3-2009, f. & cert. ef. 5-1-09; DHSD 4-2010, f. & cert. ef. 6-29-10

407-045-0320

Abuse Investigation and Protective Services Report

(1) The Department shall provide abuse investigation and protective services report formats.

(2) Upon completion of the investigation and within 45 calendar days of the date the community program assigns a report alleging abuse for investigation, the community programs shall prepare an abuse investigation and protective services report. The 45-day time period does not include an additional five working day period allowing OIT to review and approve the report. The protective services report 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 findings 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 adult;

(g) Any additional corrective action required by the community program and deadlines for completing these actions;

(h) A list of any notices made to licensing or certifying agencies;

(i) The name and title of the individual completing the report; and

(j) The date the report is written.

(3) In cases where, for good cause shown, the protective services investigator cannot complete the report within 45 days, the investigator shall submit a request for time extension to OIT.

(a) An extension may be granted for good cause shown which includes but is not limited to:

(A) When law enforcement is conducting an investigation;

(B) A material party or witness is temporarily unavailable;

(C) New evidence is discovered;

(D) 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

(E) For some other mitigating reason.

(b) When granting an extension, OIT shall consult with the program about the need for an extension and determine the length of the extension as necessary.

(c) The community program shall notify the provider agency, brokerage and guardian when an extension is granted and advise them of the new report due date.

(4) A copy of the final abuse investigation and protective services report shall be provided to the Department within five working days of the report’s completion and approval by OIT.

(5) The community program must provide notice of the outcome of the investigation or assure that notice is provided to the alleged victim, guardian, provider agency and brokerage, accused person and to any law enforcement agency which previously received notice of the initial report. Notice of outcome shall be provided to a reporter upon the reporter’s request. Notice of outcome must be made within five working days after the date the case is completed and approved by OIT. The community program must document how the notice was provided.

(6) A centralized record of all abuse investigation and protective services reports shall be maintained by community programs for all abuse investigations conducted in their county and by the Department for all abuse investigations in the state.

Stat. Authority: ORS 179.040 & 409.050
Stats. Implemented: ORS 430.735–430.765, 443.400–443.460, 443.705–443.825
Hist.: MHD 5-1994, f. 8-22-94 & cert. ef. 9-1-94; Renumbered from 309-040-0260, OMAP 87-2004, f. 11-10-04, cert. ef. 12-1-04; Renumbered from 410-009-0120, DHSD 5-2007, f. 6-29-07, cert. ef. 7-1-07; DHSD 3-2009, f. & cert. ef. 5-1-09; DHSD 4-2010, f. & cert. ef. 6-29-10; DHSD 9-2011, f. 12-1-11, cert. ef. 12-5-11

407-045-0330

Disclosure of the Abuse Investigation and Protective Services Report and Related Documents

(1) Portions of the abuse investigation and protective services report and underlying investigatory documents are confidential and are not available for public inspection. Pursuant to ORS 430.763, names of abuse reporters, witnesses, and the alleged abuse victim are confidential and shall not be available for public inspection. Investigatory documents, including portions of the abuse investigation and protective services report that contains “individually identifiable health information,” as that term is defined under ORS 192.519 and 45 CFR160.103, are confidential under federal Health Insurance Portability and Accountability Act (HIPAA) privacy rules, 45 CFR Parts 160 and 164, and ORS 192.520 and 179.505-179.509.

(2) Notwithstanding section (1) of this rule, the Department shall make confidential information available, including any photographs if appropriate, to any law enforcement agency, public agency that licenses or certifies facilities or licenses or certifies the individuals practicing therein, and any public agency providing protective services for the adult. The Department shall 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).

(3) Individuals or entities receiving confidential information pursuant to this rule shall maintain the confidentiality of the information and shall not redisclose the confidential information to unauthorized individuals or entities, as required by state or federal law.

(4) The community program shall prepare a redacted version of the final completed abuse investigation report within 10 days after the date of the final report. The redacted report shall not contain any confidential information which is prohibited from disclosure pursuant to state or federal law. The redacted report shall be submitted to the provider agency and brokerage.

(5) The community program shall provide a redacted version of the written report to the public for inspection upon written request.

(6) When the abuse investigation and protective services report is conducted by a community program as the Department’s designee, the protective services investigation may be disclosed pursuant to this rule either by the community program or the Department.

Stat. Authority: ORS 179.040 & 409.050
Stats. Implemented: ORS 430.735–430.765, 443.400–443.460, 443.705–443.825
Hist.: MHD 5-1994, f. 8-22-94 & cert. ef. 9-1-94; Renumbered from 309-040-0270, OMAP 87-2004, f. 11-10-04, cert. ef. 12-1-04; Renumbered from 410-009-0130, DHSD 5-2007, f. 6-29-07, cert. ef. 7-1-07; DHSD 3-2009, f. & cert. ef. 5-1-09; DHSD 4-2010, f. & cert. ef. 6-29-10

407-045-0340

Prohibition Against Retaliation

(1) A community facility, community program, or individual shall not retaliate against any individual who reports suspected abuse in good faith, including the adult.

(2) Any community facility, community program, or individual that retaliates against any individual because of a report of suspected abuse shall be liable, according to ORS 430.755, in a private action to that individual for actual damages and, in addition, a civil penalty up to $1,000, notwithstanding any other remedy provided by law.

(3) Any adverse action creates a presumption of retaliation if taken within 90 days of a report of abuse. For purposes of this sub-

section, “adverse action” means any action taken by a community facility, community program, or individual involved in a report against the individual making the report or against the adult because of the report and includes but is not limited to:

(a) Discharge or transfer from the community facility, except for clinical reasons;

(b) Termination of employment;

(c) Demotion or reduction in remuneration for services; or

(d) Restriction or prohibition of access to the community facility or its residents.

(4) Adverse action may also be evidence of retaliation after 90 days even though the presumption no longer applies.

Stat. Authority: ORS 179.040 & 409.050
Stats. Implemented: ORS 430.735–430.765, 443.400–443.460, 443.705–443.825
Hist.: MHD 5-1994, f. 8-22-94 & cert. ef. 9-1-94; Renumbered from 309-040-0280, OMAP 87-2004, f. 11-10-04, cert. ef. 12-1-04; Renumbered from 410-009-0140, DHSD 5-2007, f. 6-29-07, cert. ef. 7-1-07; DHSD 3-2009, f. & cert. ef. 5-1-09; DHSD 4-2010, f. & cert. ef. 6-29-10

407-045-0350

Immunity of Individuals Making Reports in Good Faith

(1) Any individual who makes a good faith report and who had reasonable grounds for making the report shall have immunity from civil liability with respect to having made the report.

(2) The reporter shall have the same immunity in any judicial proceeding resulting from the report as may be available in that proceeding.

(3) An individual who has personal knowledge that an employee or former employee of the adult was found to have committed abuse is immune from civil liability for the disclosure to a prospective employer of the employee of known facts concerning the abuse.

Stat. Authority: ORS 179.040 & 409.050
Stats. Implemented: ORS 430.735–430.765, 443.400–443.460, 443.705–443.825
Hist.: OMAP 87-2004, f. 11-10-04, cert. ef. 12-1-04; Renumbered from 410-009-0150, DHSD 5-2007, f. 6-29-07, cert. ef. 7-1-07; DHSD 3-2009, f. & cert. ef. 5-1-09; DHSD 12-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-29-10; DHSD 4-2010, f. & cert. ef. 6-29-10

407-045-0360

Department Investigation of Alleged Abuse

(1) If determined necessary or appropriate, the Department may conduct an investigation rather than allow the community program to investigate the alleged abuse or in addition to the investigation by the community program. Under such circumstances, the community program must receive authorization from the Department before conducting any separate investigation.

(2) The community program shall make all records necessary for the investigation available to the Department for inspection and copying. The community facilities and community programs must provide the Department access to employees, the adult, and the premises for investigation purposes.

Stat. Authority: ORS 179.040 & 409.050
Stats. Implemented: ORS 430.735–430.765, 443.400–443.460, 443.705–443.825
Hist.: MHD 5-1994, f. 8-22-94 & cert. ef. 9-1-94; Renumbered from 309-040-0290, OMAP 87-2004, f. 11-10-04, cert. ef. 12-1-04; Renumbered from 410-009-0160, DHSD 5-2007, f. 6-29-07, cert. ef. 7-1-07; DHSD 3-2009, f. & cert. ef. 5-1-09; DHSD 4-2010, f. & cert. ef. 6-29-10

407-045-0370

County Multidisciplinary Teams

(1) The community program must participate in its county Multidisciplinary Team (MDT) to coordinate and collaborate on protective services for the abuse of adults with developmental disabilities or mental illness or both.

(2) All confidential information protected by state and federal law that is shared or obtained by MDT members in the exercise of their duties on the MDT is confidential and may not be further disclosed except as permitted by law.

(3) The community program or OIT shall provide an annual report to the MDT reporting the number of investigated and substantiated allegations of abuse of adults and the number referred to law enforcement in the county.

Stat. Auth.: ORS 179.040 & 409.050
Stats. Implemented: ORS 430.735–430.765, 443.400–443.460, 443.705–443.825
Hist.: DHSD 4-2010, f. & cert. ef. 6-29-10

Abuse of Individuals Living in State Hospitals and Residential Training Centers

407-045-0400

Purpose

These rules (OAR 407-045-0400 to 407-045-0520), which establish a policy prohibiting abuse and define procedures for reporting, investigating, and resolving alleged incidents of abuse of individuals in state hospitals and residential training centers, have been moved to the Oregon Health Authority rule chapter (OAR 943-045-0400 to 943-0520).

Stat. Auth.: ORS 179.040 & 409.050
Stats. Implemented: ORS 179.390, 426.385, 427.031, 430.210, 430.735 - 430.765
Hist.: MHD 23, f. 8-5-74, ef. 8-25-74; MHD 19-1982(Temp), f. & ef. 9-10-82; MHD 4-1983, f. & ef. 3-4-83, Renumbered from 309-021-0010(1) and (2); MHD 3-1991, f. 6-21-91, cert. ef. 8-15-91; MHD 7-1995, f. 12-27-95, cert. ef. 1-1-96; Renumbered from 309-116-0000, OMAP 60-2005, f. 11-22-05, cert. ef. 1-1-06; Renumbered from 410-011-0000, DHSD 4-2007, f. 6-29-07, cert. ef. 7-1-07; DHSD 4-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; DHSD 10-2011, f. & cert. ef. 12-1-11

Notice and Review of Substantiated Abuse or Neglect in 24-Hour Residential Care
for Children with Developmental Disabilities

407-045-0600

Purpose and Statutory Authority

(1) Purpose. The purpose of these rules is to state procedures for ensuring the rights of individuals to have notice and to request a review to appeal a determination when an abuse or neglect investigation in a 24-hour residential care facility for children with developmental disabilities results in a "substantiated" determination. These rules outline a process to provide review, upon request, by the Office of Developmental Disability Services Review Committee (ODDSRC) of the Aging and People with Disabilities Division (APD) of the Department of Human Services. The ODDSRC has the authority to change the determination made in the investigation by the Office of Adult Abuse Prevention and Investigations (OAAPI).

(2) Statutory Authority. These rules are authorized by ORS 430.041 and carry out the provisions of the Federal Child Abuse Prevention and Treatment Act (CAPTA) which requires child protective service agencies to provide notice to individuals identified as responsible for child abuse or neglect and to provide individuals with an opportunity to request and have a review to appeal a "substantiated" determination.

Stat. Auth.: ORS 430.041
Stats. Implemented: ORS 430.041
Hist.: MHD 14-2000(Temp), f. & cert. ef. 10-26-00 thru 4-23-01; MHD 1-2001, f. 4-9-01, cert. ef. 4-23-01; Renumbered from 309-045-0100, DHSD 9-2007, f. & cert. ef. 10-1-07

407-045-0610

Definitions

For the purposes of these rules, the following words and phrases have these meanings:

(1) "24-Hour Program" means a residential program licensed by the Office of Developmental Disability Services (ODDS) in the Aging and People with Disabilities Division (APD) under the 24-hour rule and contracted by APD to serve children under the age of 18 who have developmental disabilities.

(2) "Legal Finding" means a Court finding, guilty plea or guilty verdict which identifies that the person inquiring about or requesting a review was responsible for the child abuse or neglect or any other offense stemming from the employee's or subcontracting individual's conduct which was the subject of the OAAPI substantiated determination.

(3) "Notice of Office of Developmental Disability Review Committee Decision" means a written notice of the decision of the ODDSRC. This notice is delivered to the agency or program employee or subcontracting individual identified as responsible for the child abuse or neglect.

(4) "Notice of OAAPI Substantiated Determination" means that OAAPI determined at the conclusion of an investigation of alleged child abuse or neglect that there is reasonable cause to believe child abuse or neglect occurred; and, when known, that there is reasonable cause to believe that a specific person or persons employed by the 24-hour residential program or subcontracting with that program were responsible for the child abuse or neglect.

(5) "Notice of Waived Rights for Review" means a written notice that OAAPI staff may send to a person requesting a review, when OAAPI has documentation that a person refused to accept delivery of the notice of OAAPI substantiated determination or that the person accepted the delivery and did not request a review within 30 calendar days, or when there is a legal determination which indicates that the perpetrator was responsible for the subject child abuse or neglect.

(6) "Office of Developmental Disability Services Review Committee" or "ODDSRC" means a group of three APD employees selected by the ODDS Assistant Administrator or a designee, none of whom were involved in the investigation that resulted in the specific OAAPI substantiated determination under review.

(7) "OAAPI" means the Office of Adult Abuse Prevention and Investigations of the Department of Human Services, which performs investigations of alleged child abuse or neglect where the alleged victim has developmental disabilities and lives in an ODDS licensed 24-hour residential program and the perpetrator is an employee or subcontracting individual of that program.

(8) "OAAPI Determination" is a finding that completes an OAAPI investigation. Determinations are defined in OAR 309-045-0160 and summarized as follows:

(a) "Substantiated" means that based on the evidence there is reasonable cause to believe that conduct in violation of the abuse or neglect definitions occurred and such conduct is attributable to the person(s) alleged to have engaged in the conduct.

(b) "Unsubstantiated" means that based on the evidence, it was determined that there is reasonable cause to believe that the alleged incident was not in violation of the definitions of abuse and/or attributable to the person(s) alleged to have engaged in such conduct.

(c) "Inconclusive" means that the matter is not resolved and the available evidence does not support a final decision that there was reasonable cause to believe that abuse or neglect occurred or did not occur.

(9) "Perpetrator" means an individual employee or subcontracting individual identified by OAAPI as responsible for child abuse or neglect in an OAAPI substantiated determination.

(10) "Person Requesting Review" or "Requestor" means an individual who is identified as the perpetrator in an OAAPI substantiated determination and who requests a review of the determination because the individual believes the determination is in error.

(11) "Request for Review by Office of Development Disability Review Committee" means a written request from a person requesting review. The specific requirements for a request for review are described in OAR 309-045-0170.

(12) "Retain a Request for Review" means an ODDS manager or designee determines a request for review will be held until a court legal finding is made. More specific details are described in OAR 309-045-0180.

Stat. Auth.: ORS 409.050 & 430.041
Stats. Implemented: ORS 430.041
Hist.: MHD 14-2000(Temp), f. & cert. ef. 10-26-00 thru 4-23-01; MHD 1-2001, f. 4-9-01, cert. ef. 4-23-01; Renumbered from 309-045-0110, DHSD 9-2007, f. & cert. ef. 10-1-07; DHSD 6-2012, f. 10-31-12, cert. ef. 11-1-12

407-045-0620

APD Employee — Application of APD Employee Policies

When the individual identified as responsible for substantiated child abuse or neglect is an employee of APD, the Division will refer to APD employee policies for additional and/or different requirements.

Stat. Auth.: ORS 430.041
Stats. Implemented: ORS 430.041
Hist.: MHD 14-2000(Temp), f. & cert. ef. 10-26-00 thru 4-23-01; MHD 1-2001, f. 4-9-01, cert. ef. 4-23-01; Renumbered from 309-045-0120, DHSD 9-2007, f. & cert. ef. 10-1-07

407-045-0630

Providing Notice of an OAAPI Substantiated Determination On/After the Effective Date of These Rules (October 26, 2000)

When staff of the Office of Adult Abuse Prevention and Investigations (OAAPI) determines a person is responsible for substantiated abuse or neglect, on or after the effective date of this rule (October 26, 2000), OAAPI shall deliver a notice of substantiated determination to the person identified in one of the following ways:

(1) By certified mail, restricted delivery, with a return receipt requested to the last known address; or

(2) By hand delivery; hand-delivered notice must be addressed to the individual, the original is to be signed and dated by the individual to whom it is addressed to acknowledge receipt, and signed by the person delivering the notice. OAAPI staff shall place the document with original signatures in the case record.

Stat. Auth.: ORS 430.041
Stats. Implemented: ORS 430.041
Hist.: MHD 14-2000(Temp), f. & cert. ef. 10-26-00 thru 4-23-01; MHD 1-2001, f. 4-9-01, cert. ef. 4-23-01; Renumbered from 309-045-0130, DHSD 9-2007, f. & cert. ef. 10-1-07

407-045-0640

Inquiry About a Review of an OAAPI Substantiated Determination When a Person Believes They Have Not Received a Notice

If a person believes they have not received a notice of OAAPI substantiated determination, the person may contact OAAPI to inquire about a review of the determination. OAAPI will follow the procedures outlined in OAR 309-045-0150 to determine if a review of a determination may be requested.

Stat. Auth.: ORS 430.041
Stats. Implemented: ORS 430.041
Hist.: MHD 14-2000(Temp), f. & cert. ef. 10-26-00 thru 4-23-01; MHD 1-2001, f. 4-9-01, cert. ef. 4-23-01; Renumbered from 309-045-0140, DHSD 9-2007, f. & cert. ef. 10-1-07

407-045-0650

OAAPI Responsibilities When a Person Inquires About a Review of an OAAPI Substantiated Determination

OAAPI staff shall take the following steps when a person inquires about a review of an OAAPI substantiated determination.

(1) Staff of OAAPI will record the individual's name and address, and a telephone number when available.

(2) OAAPI staff shall review the records to determine whether:

(a) A notice of an OAAPI substantiated determination was delivered to the person; or

(b) Whether the person refused delivery.

(3) If OAAPI staff determine that either the notice was delivered as evidenced by the returned receipt, or that the person refused the delivery as evidenced by the returned receipt, the staff may prepare and deliver a notice of waived rights for review.

(4) If OAAPI staff determine that the notice was not delivered as evidenced by the returned receipt, the staff shall deliver a notice of OAAPI substantiated determination as outlined in OAR 309-045-0130 and 309-045-0160.

Stat. Auth.: ORS 430.041
Stats. Implemented: ORS 430.041
Hist.: MHD 14-2000(Temp), f. & cert. ef. 10-26-00 thru 4-23-01; MHD 1-2001, f. 4-9-01, cert. ef. 4-23-01; Renumbered from 309-045-0150, DHSD 9-2007, f. & cert. ef. 10-1-07

407-045-0660

Information Included in the Notice of an OAAPI Substantiated Determination

The Notice of an OAAPI substantiated determination shall include all of the following:

(1) The case number assigned to the investigation that resulted in the OAAPI substantiated determination;

(2) The full name of the individual who has been identified as responsible for the child abuse or neglect as it is recorded in the case record;

(3) A statement that the OAAPI determination was recorded as substantiated, including a description of the type of child abuse or neglect identified;

(4) A statement about the right of the individual to make a request for review of the substantiated determination;

(5) Instructions for making a request for review, which must include the reason the individual believes the OAAPI substantiated determination is in error;

(6) A statement that the person waives the right to request a review if the request for review is not received by the OAAPI within 30 calendar days from the date of receipt of the notice of OAAPI substantiated determination, as documented by the U.S. Postal Service.

(7) A statement that the ODDSRC shall consider all relevant case file information including the OAAPI investigation and determination, and all information provided by the person requesting review in their request for review, and that the ODDSRC shall not: re-interview the victim, interview or meet with the person requesting a review, or others associated with the requestor, or others mentioned in the investigation, or conduct a further investigation of the allegation of child abuse or neglect.

(8) A statement that OAAPI will send the requestor notification of the ODDSRC's decision within 45 calendar days of receiving a written request for review.

Stat. Auth.: ORS 430.041
Stats. Implemented: ORS 430.041
Hist.: MHD 14-2000(Temp), f. & cert. ef. 10-26-00 thru 4-23-01; MHD 1-2001, f. 4-9-01, cert. ef. 4-23-01; Renumbered from 309-045-0160, DHSD 9-2007, f. & cert. ef. 10-1-07

407-045-0670

Making a Request for a Review of an OAAPI Substantiated Determination

(1) A person who meets the criteria outlined in OAR 309-045-0150 may make a written request for review as follows:

(2) A person requesting review shall use information found on the notice of OAAPI substantiated determination to prepare a written request for review. The written request for review shall be delivered to OAAPI within 30 calendar days of the receipt of the notice of OAAPI substantiated determination and shall include the following items:

(a) Date the request for review is written;

(b) Case number (found on the notice of OAAPI substantiated determination);

(c) Full name of the person identified as responsible in the OAAPI substantiated determination;

(d) The reason the person is requesting the review and an explanation of why the person believes the OAAPI substantiated determination is in error;

(e) The person's current name (if it has changed from the name noted in (c) above;

(f) The person's current street address, city, state, zip code, and telephone number; and

(g) The person's signature.

Stat. Auth.: ORS 430.041
Stats. Implemented: ORS 430.041
Hist.: MHD 14-2000(Temp), f. & cert. ef. 10-26-00 thru 4-23-01; MHD 1-2001, f. 4-9-01, cert. ef. 4-23-01; Renumbered from 309-045-0170, DHSD 9-2007, f. & cert. ef. 10-1-07

407-045-0680

Determining When Legal Findings Preclude a Right to Request a Review

(1) A legal process or finding relevant to the substantiated determination will preclude a person's right to a review.

(2) When the request for review is held pending the outcome of the legal process, and a legal finding is made that the child abuse or neglect or other offense stemming from the employee's or subcontracting individual's conduct occurred and is the subject of the OAAPI substantiated determination and that the person requesting review is responsible, a review shall not occur.

(3) At the conclusion of a Court proceeding or legal process, when the person requesting a review is found not guilty, documentation of the legal finding must be provided to OAAPI by the requestor. The requested review will then be held within 30 calendar days of OAAPI's receipt of the documentation.

Stat. Auth.: ORS 430.041
Stats. Implemented: ORS 430.041
Hist.: MHD 14-2000(Temp), f. & cert. ef. 10-26-00 thru 4-23-01; MHD 1-2001, f. 4-9-01, cert. ef. 4-23-01; Renumbered from 309-045-0180, DHSD 9-2007, f. & cert. ef. 10-1-07

407-045-0690

OAAPI Responsibilities Related to Notices and Reviews

(1) If an individual asks to review the record, ORS 179.505 and OAR 309-040-0200 through 309-040-0290 shall govern inspection and copying of records.

(2) OAAPI staff shall maintain records to demonstrate the following, when applicable:

(a) Whether OAAPI delivered a notice of OAAPI substantiated determination;

(b) Whether or not the notice of OAAPI substantiated determination was received by the addressee, as evidenced by a returned receipt documenting the notice was received, refused, or not received within the 15 calendar day time period as provided by the U.S. Postal Service;

(c) Date a request for review was received;

(d) When a review was made, whether the notice of the ODDSRC's decision was received by the perpetrator or not, as evidence by a returned receipt documenting the notice was received, refused, or not received within the 15 calendar day time period as provided by the U.S. Postal Service;

(3) The OAAPI Director or designee shall maintain a comprehensive record of the reviews held of OAAPI substantiated determinations. The record shall include but is not limited to the date, case number, and ODDSRC decision.

Stat. Auth.: ORS 430.041
Stats. Implemented: ORS 430.041
Hist.: MHD 14-2000(Temp), f. & cert. ef. 10-26-00 thru 4-23-01; MHD 1-2001, f. 4-9-01, cert. ef. 4-23-01; Renumbered from 309-045-0190, DHSD 9-2007, f. & cert. ef. 10-1-07

407-045-0700

ODDS Review Committees and Reviews of OAAPI Substantiated Determinations

(1) The ODDSRC shall conduct a review within 30 calendar days of OAAPI's receipt of a request for review of an OAAPI substantiated determination and issue a notice of ODDSRC decision.

(2) If the request for review has been retained as per OAR 309-045-0180 and a legal finding was not made that would preclude a review, the review shall occur within 30 calendar days of OAAPI's receipt of documentation of the legal proceeding's outcome.

(3) The ODDS Review Committee will operate as follows:

(a) The ODDSRC shall consider all relevant case file information including the OAAPI investigation report and determination, and information provided by the person requesting review in their request. The ODDSRC shall not: re-interview the victim, interview or meet with the person requesting a review, or others associated with the requestor, or others mentioned in the investigation, or conduct a further investigation of the allegation of child abuse or neglect.

(b) The ODDSRC shall have the authority to retain or change an OAAPI determination after a review has occurred;

(c) When reviewing an OAAPI substantiated determination, the ODDSRC shall determine whether there is or is not reasonable cause to believe that child abuse or neglect occurred and whether there is or is not reasonable cause to believe the person requesting review is responsible;

(d) The ODDSRC will decide by majority vote of the participating committee members if the OAAPI determination will be retained or changed. The decision of the ODDSRC is the final agency action.

(4) The ODDSRC shall prepare and deliver a notice of the ODDSRC's decision to OAAPI.

Stat. Auth.: ORS 430.041
Stats. Implemented: ORS 430.041
Hist.: MHD 14-2000(Temp), f. & cert. ef. 10-26-00 thru 4-23-01; MHD 1-2001, f. 4-9-01, cert. ef. 4-23-01; Renumbered from 309-045-0200, DHSD 9-2007, f. & cert. ef. 10-1-07

407-045-0710

Providing a Notice of the ODDSRC's Decision

(1) The notice of the ODDSRC's decision shall include the following items:

(a) Whether there is or is not reasonable cause to believe that child abuse or neglect occurred;

(b) Whether there is or is not reasonable cause to believe the person requesting the review was responsible for the child abuse or neglect;

(c) The decision of the ODDSRC about whether the OAAPI substantiated determination will be retained or changed; and if changed, whether it will be changed to either unsubstantiated or inconclusive;

(d) A summary of the information upon which the decision was based. When an OAAPI substantiated determination is changed, the information will be added to the investigation file.

(2) The ODDS Assistant Administrator or designee shall deliver a copy of the ODDSRC decision to OAAPI, and the OAAPI Director or designee shall place the request for review and a copy of the ODDSRC decision into the case file. No change shall be made in the existing written case record.

(3) If an OAAPI substantiated determination is changed by the ODDSRC, OAAPI staff shall notify the 24-hour program and the Child Welfare Programs within 30 days of the decision. The 24-hour program shall notify the victim and his or her parent or guardian.

(4) OAAPI shall send the ODDSRC decision by certified mail, restricted delivery, with a return receipt requested, to the person requesting review within 15 calendar days of the ODDSRC review.

Stat. Auth.: ORS 430.041
Stats. Implemented: ORS 430.041
Hist.: MHD 14-2000(Temp), f. & cert. ef. 10-26-00 thru 4-23-01; MHD 1-2001, f. 4-9-01, cert. ef. 4-23-01; Renumbered from 309-045-0210, DHSD 9-2007, f. & cert. ef. 10-1-07

Abuse Reporting and Protective Services in Children's Residential
Care Agencies, Day Treatment Programs, Therapeutic Boarding Schools,
Foster Care Agencies, and Outdoor Youth Programs

407-045-0800

Scope

These rules (OAR 407-045-0800 to 407-045-0980) prescribe standards and procedures for investigating, assessing, and providing protective services in certain therapeutic or treatment programs, when abuse or neglect of a child is reported to have occurred. Specifically, these rules govern children’s residential care agencies, day treatment programs, therapeutic boarding schools, foster care agencies, and outdoor youth programs (hereafter, “children’s care providers” or “CCPs”). These rules also set forth the nature and content of the abuse investigation, the protective services report, and review rights and procedure.

Stat. Auth.: ORS 409.050 & 418.005
Stats. Implemented: ORS 409.185, 418.015, 418.205-418.327, & 419B.005-419B.050
Hist.: DHSD 12-2007(Temp), f. & cert. ef.12-3-07 thru 5-30-08; DHSD 4-2008, f. & cert. ef. 5-30-08; DHSD 5-2010, f. 6-30-10, cert. ef. 7-1-10

407-045-0810

General Policy and Applicability

(1) Every child deserves safe, respectful, and dignified treatment provided in a caring environment. All CCPs governed by these rules, and their staff, shall conduct themselves in such a manner that children are free from abuse.

(2) In these rules, the term “abuse” is defined in some detail because of the unique vulnerabilities of children served by CCPs and the nature of the settings where abuse may occur. All forms of abuse are prohibited. CCPs and their staff must always be aware of the potential for abuse in interactions with children.

(3) These rules govern reports of abuse or neglect in which the CCP, or its staff, is reported to be responsible. All such reports shall be investigated by the Department of Human Services’s (Department) Office of Investigations and Training (OAAPI).

(4) OAAPI shall evaluate each case based on available facts and on the individual circumstances of the child, including the child’s particular vulnerabilities.

(5) Nothing in these rules relieves any mandatory reporter, including a CCP, from reporting abuse or neglect alleged to have been caused by other individuals, including but not limited to family members. Those reports shall continue to be investigated by the Department’s Children, Adults and Families Division (CAF) or by law enforcement.

Stat. Auth: ORS 409.050, 418.005 & 418.189
Stats. Implemented: ORS 418.189 & 418.205 – 418.327
Hist.: DHSD 12-2007(Temp), f. & cert. ef.12-3-07 thru 5-30-08; DHSD 4-2008, f. & cert. ef. 5-30-08; DHSD 5-2010, f. 6-30-10, cert. ef. 7-1-10

407-045-0820

Definitions

The following definitions apply to OAR 407-045-0800 through 407-045-0980:

(1) “Abuse” includes but is not limited to:

(a) Any assault, as defined in ORS Chapter 163, of a child and any physical injury to a child which has been caused by other than accidental means, including any injury which appears to be at variance with the explanation given of the injury.

(b) Any mental injury to a child, which shall include only observable and substantial impairment of the child’s mental or psychological ability to function caused by cruelty to the child, with due regard to the culture of the child.

(c) Rape of a child, which includes but is not limited to rape, sodomy, unlawful sexual penetration, and incest, as defined in ORS Chapter 163.

(d) Sexual abuse, as defined in ORS Chapter 163.

(e) Sexual exploitation which includes but is not limited to:

(A) Contributing to the sexual delinquency of a minor, as defined in ORS Chapter 163, and any other conduct which allows, employs, authorizes, permits, induces, or encourages a child to engage in the performing for people to observe or the photographing, filming, tape recording, or other exhibition which, in whole or in part, depicts sexual conduct or contact, as defined in ORS 167.002 or described in 163.665 and 163.670;

(B) Sexual abuse involving a child or rape of a child, but not including any conduct which is part of any investigation conducted pursuant to ORS 419B.020 or which is designed to serve educational or other legitimate purposes; or

(C) Allowing, permitting, encouraging, or hiring a child to engage in prostitution, as defined in ORS Chapter 167.

(f) Negligent treatment or maltreatment of a child which includes but is not limited to failure to provide adequate food, clothing, shelter, or medical care that is likely to endanger the child’s health or welfare.

(g) Threatened harm to a child, which means subjecting a child to a substantial risk of harm to the child’s health or welfare.

(h) Buying or selling an individual under 18 years of age, as described in ORS 163.537.

(i) Permitting an individual under 18 years of age to enter or remain in or upon premises where methamphetamines are being manufactured.

(j) Unlawful exposure to a controlled substance, as defined in ORS 475.005, that subjects a child to a substantial risk of harm to the child’s health or safety.

(2) “Child” means an unmarried individual under 18 years of age.

(3) “Children’s care provider (CCP)” means a licensed residential care agency, day treatment program, foster care agency, therapeutic boarding school, or outdoor youth program that has assumed responsibility for all or a portion of the care of a child. The term includes the CCP’s employees, agents, contractors and their employees, and volunteers.

(4) “Day treatment program” means a licensed CCP that provides day treatment services.

(5) “Day treatment services” means comprehensive, interdisciplinary, nonresidential, community based, psychiatric treatment, family treatment, and therapeutic activities integrated with an accredited education program provided to children with emotional disturbances.

(6) “Department” means the Department of Human Services.

(7) “Designated medical professional” means a medical professional as defined in ORS 418.747 who has been trained to conduct child abuse medical assessments pursuant to 418.782.

(8) “Foster care agency” means a licensed child-caring agency that offers to place children by taking physical custody of and then placing the children in homes certified by that agency.

(9) “Inconclusive” means a preponderance of evidence is not available to determine whether the alleged abuse did or did not occur. Evidence may be inconclusive because relevant witnesses, documents, or records are unavailable, or because there is conflicting or inconsistent information from witnesses, documents, or records, with the result that at the conclusion of the investigation there is insufficient evidence to support a “substantiated” or a “not substantiated” conclusion.

(10) “Legal finding” means a court or administrative finding, judgment, order, stipulation, plea, or verdict that determines who was responsible for the child abuse that is the subject of an OIT substantiation.

(11) “Likely to endanger the health or welfare of the child” means negligent treatment or maltreatment that is likely to result in harm to the child, based on the available facts, and on the individual child’s particular physical, emotional, behavioral, or mental health needs, circumstances, or vulnerabilities.

(12) “Maltreatment” means any action toward a child which carries a risk of harm to the child’s physical, emotional, behavioral, or mental health or welfare. Examples of staff behaviors that must be reported as potential abuse by maltreatment include but are not limited to the willful infliction of pain or injury (e.g. hitting, kicking, pushing, arm twisting, head twisting, etc.); exposure to domestic violence; inappropriate or excessive force during a containment hold or restraint; or other physical contact with the child inconsistent with prescribed treatment or care. All injuries during a restraint or hold must be reported, including minor injuries. Other behaviors that must be reported include the use of derogatory names, phrases, profanity, ridicule, harassment, intimidation, or coercion. While such behaviors do not automatically mean abuse has occurred, such actions may be abuse if the investigation determines the actions were likely to endanger the child’s health or welfare.

(13) “Mandatory reporter” means an individual or entity having a duty to report as defined in ORS 419B.005 to 419B.050.

(14) “Negligent treatment” means failure to perform duties or failure to take action required to protect the child’s health or welfare. Examples of staff behaviors that must be reported as potential abuse by negligent treatment include but are not limited to failure to supervise a child or failure to intervene when a child needs assistance or care. While such failures do not automatically mean abuse has occurred, such actions may be abuse if the investigation determines the failures were likely to endanger the child’s health or welfare.

(15) “Not substantiated” means the preponderance of evidence establishes the alleged abuse did not occur.

(16) “OIT” means the Department’s Office of Investigations and Training.

(17) “OIT investigator” means an employee of the Department’s OIT who is authorized and trained to investigate reports of child abuse or neglect under these rules.

(18) “OIT Substantiation Review Committee (OSRC)” means a group of three Department employees selected by the Department’s Deputy Director or designee, none of whom was involved in any part of the investigation that resulted in the OIT substantiation under review. The committee must consist of Department employees who are knowledgeable about the dynamics of child abuse and neglect, including the assessment or investigation of child abuse and neglect, and Department employees with knowledge of abuse investigations, especially where abuse is alleged to have occurred in out-of-home settings.

(19) “Outdoor youth program” means a licensed program that provides, in an outdoor living setting, services to youth who are enrolled in the program because they have behavioral or mental problems, or problems with abuse of alcohol or drugs. “Outdoor youth program” does not include any program, facility, or activity operated by a governmental entity, operated or affiliated with the Oregon Youth Conservation Corps, or licensed by the Department as a child-caring agency under other Department authority. It does not include outdoor activities for youth designed to be primarily recreational such as YMCA, Outward Bound, Boy Scouts, Girl Scouts, Campfire, church groups, or other similar activities.

(20) “Person” means the person OIT has reasonable cause to believe is responsible for child abuse in a substantiated OIT report, and about whom a substantiated finding has been made.

(21) “Protective action” means a set of services or activities undertaken to address and meet a child’s safety needs after a report of abuse has been received by OIT.

(22) “Residential care agency” means a licensed child-caring agency that provides services to children 24 hours a day.

(23) “Substantiated” means that a preponderance of evidence establishes the alleged abuse occurred.

(24) “Suspicious physical injury” is defined in ORS 419B.005 and includes but is not limited to burns or scalds; extensive bruising or abrasions on any part of the body; bruising, swelling, or abrasions on the head, neck, or face; fractures of any bone in a child under the age of three; multiple fractures in a child of any age; dislocations, soft tissue swelling, or moderate to severe cuts; loss of the ability to walk or move normally according to the child’s developmental ability; unconsciousness or difficulty maintaining consciousness; multiple injuries of different types; injuries causing serious or protracted disfigurement or loss or impairment of the function of any bodily organ; or any other injury that threatens the physical well-being of the child.

(25) “Therapeutic boarding school” means a licensed organization or a program in an organization that:

(a) Is primarily a school and not a residential care agency;

(b) Provides educational services and care to children 24 hours a day; and

(c) Holds itself out as serving children with emotional or behavioral problems, providing therapeutic services, or ensuring that children receive therapeutic services.

Stat. Auth.: ORS 409.050 & 418.005
Stats. Implemented: ORS 409.185, 418.005, 418.189, 418.205 - 418.327, 418.747, 419B.005 - 419B.050 & 419B.328
Hist.: DHSD 12-2007(Temp), f. & cert. ef.12-3-07 thru 5-30-08; DHSD 4-2008, f. & cert. ef. 5-30-08; DHSD 5-2010, f. 6-30-10, cert. ef. 7-1-10; DHSD 6-2010(Temp), f. & cert. ef. 7-12-10 thru 1-8-11; DHSD 12-2010, f. 12-30-10, cert. ef. 1-1-11

407-045-0830

Training of Children’s Care Providers

(1) The Department shall provide training and consultation to CCPs to identify abuse and to prevent abuse from occurring.

(2) The Department shall provide training to assist CCPs to understand the abuse investigation process and the CCP’s responsibility in cooperating with the investigation.

Stat. Auth.: ORS 409.050 & 418.005
Stats. Implemented: ORS 418.189 & 418.702
Hist.: DHSD 12-2007(Temp), f. & cert. ef.12-3-07 thru 5-30-08; DHSD 4-2008, f. & cert. ef. 5-30-08; DHSD 5-2010, f. 6-30-10, cert. ef. 7-1-10

407-045-0850

Responsibilities of the CCP

(1) CCPs and their staff are mandatory reporters governed by ORS 419B.005 to 419B.050. Mandatory reporters must immediately report when they have reasonable cause to believe any child with whom they have come in contact has suffered abuse or that any person with whom they have come in contact has abused a child. For purposes of reporting, the belief need only be a reasonable suspicion, and does not need to rise to the level of probable cause. All reports must be made verbally or in writing to the Department or to a law enforcement agency within the county where the individual making the report is located at the time of the contact.

(2) Concurrent with reporting the suspected abuse or neglect of a child, CCPs shall immediately assess the safety of the child and take any action necessary to remove the child from danger and keep the child safe. CCPs shall cooperate with OIT in establishing a safety plan for the child who is the subject of the report, and for other children who may be at risk of abuse or neglect. In establishing a safety plan, CCPs may not take any actions beyond determining:

(a) Whether the alleged victim is in danger or in need of immediate protective services, in light of the nature of the report; and

(b) Whether any immediate personnel action needs to be taken.

(c) When taking protective action as described in section (2) above, the CCP may not conduct an internal investigation without prior authorization from OIT. For purposes of this section, a prohibited internal investigation includes:

(A) Interviews with the alleged victim, witnesses, the accused person, or any other individual or witness who may have knowledge of the facts of the abuse allegation or related circumstances that include questions beyond those necessary for immediate protection of the child or other children; or

(B) Review of relevant evidence, other than the initial report or other documents necessary for immediate protection of the child or other children.

(3) CCPs shall document all reports of suspected abuse or neglect of a child including, to the extent possible, the following information:

(a) The name, age, and present location of the child;

(b) The names and addresses of individuals, programs, or facilities responsible for the child’s care;

(c) The nature and extent of the alleged abuse;

(d) Any information that led the individual making the report to suspect abuse had occurred;

(e) Any information that the individual believes might aid in establishing the cause of the abuse and the identity of the individual alleged to be responsible for the abuse; and

(f) The date of the incident.

(4) Every CCP shall cooperate fully with OIT under these rules. Cooperation includes but is not limited to:

(a) Providing the investigator with access to the child, the facility, and to all potential witnesses; and

(b) Producing all records and reports requested, including but not limited to medical, psychiatric and psychological records and reports, and individual service or behavioral support plans for the child.

Stat. Auth.: ORS 409.050 & 418.005
Stats. Implemented: ORS 419B.010–419B.015
Hist.: DHSD 12-2007(Temp), f. & cert. ef.12-3-07 thru 5-30-08; DHSD 4-2008, f. & cert. ef. 5-30-08; DHSD 5-2010, f. 6-30-10, cert. ef. 7-1-10

407-045-0860

Responsibilities of the Office of Investigations and Training

(1) When OIT receives a report of abuse, OIT shall notify a law enforcement agency within the county where the report was made. If the abuse is reported to have occurred in a different county, OIT must also cross-report to the law enforcement agency in the county where the reported abuse occurred.

(2) OIT shall cross-report to law enforcement on the same day the OIT screener determines the report requires an immediate or a 24-hour response.

(a) Required same day cross-reports include but are not limited to reports of moderate to severe physical abuse, visible injuries to a child, sexual abuse, or the suspicious or unexpected death of a child. Same day reports may be cross-reported verbally, by electronic transmission, or by hand delivery.

(b) When a cross-report is verbal and OIT and law enforcement do not respond to the report together, OIT must send a completed screening report to law enforcement.

(3) All other reports, including those investigated at screening but closed, must be cross-reported to law enforcement no later than ten days after the Department receives the report. The cross-report may be made by electronic transmission, hand delivery, or regular mail.

(4) When OIT receives a report of alleged abuse or neglect, OIT shall notify the child’s parent or legal guardian that an allegation has been made, unless notice is prohibited by law or court order or would compromise the child’s safety or a criminal investigation. If the child is in the legal custody of the Department, OIT shall notify the child’s assigned Department caseworker, if notice has not already been provided. If the child has been placed at the CCP through the Oregon Youth Authority (OYA), OIT shall notify OYA. If OIT has reason to believe the child is an Indian child, OIT shall notify the tribe within 24 hours from the time the report was received by the Department. In cases in which OIT finds reasonable cause to believe that a child has died as a result of abuse or where the death occurred under suspicious or unknown circumstances, OIT shall notify the appropriate law enforcement agency.

Stat. Auth: ORS 409.050 & 418.005
Stats. Implemented: ORS 418.005 & 419B.005 - 419B.050
Hist.: DHSD 12-2007(Temp), f. & cert. ef.12-3-07 thru 5-30-08; DHSD 4-2008, f. & cert. ef. 5-30-08; DHSD 5-2010, f. 6-30-10, cert. ef. 7-1-10

407-045-0870

Office of Investigations and Training Screening Decision Time Frames

(1) When the information received constitutes a report of abuse in which a child may be unsafe, OIT shall interview the child, conduct a site visit, or coordinate with CCP staff to assure that the child is safe within 24 hours after the report is received. If OIT plans to interview the child, OIT must notify the child’s parent or legal guardian, unless notification is prohibited by law or court order or would compromise the child’s safety or a criminal investigation.

(2) When it has not been reported that the child is unsafe and there are no other indicators the child is unsafe, OIT may decide to open the case for investigation or to close it at screening. OIT must make the decision to open or close the case within five calendar days from the date the report is received by the Department. The OIT screener may request approval for an extension of time beyond five

days if extenuating circumstances exist. Extensions may only be granted by the OIT Director or the Director’s designee.

(3) OIT shall screen all reports to identify the nature and cause of the reported abuse.

(a) In all cases, the screener shall evaluate whether the child is safe or unsafe, assess the need for protective action, request that protective action be taken and necessary services provided, and assess the need for further investigation.

(b) In conducting the screening process, OIT may:

(A) Coordinate in-person or by telephone with any CCP staff authorized to take protective action on behalf of the child;

(B) Conduct a site visit at the CCP;

(C) Interview the child or other witnesses;

(i) Prior to interviewing a child victim or child witness, OIT shall give notice of its intent to interview to the child’s legal guardian, unless notice is prohibited by law or court order, or would compromise the child’s safety or a criminal investigation.

(ii) If OIT determines contact with the child should occur at the child’s school, OIT shall comply with the requirements of ORS 419B.045.

(D) Gather and secure physical evidence as necessary;

(E) Take photographs of the child and obtain a medical assessment, as necessary, consistent with OAR 407-045-0880(2)(d) and (e) of this rule;

(F) Take photographs of the facility as necessary or appropriate; and

(G) Receive, review, or copy records pertaining to the child or the incident, including but not limited to incident reports, evaluations, treatment or support plans, treatment notes or progress records, or other documents concerning the welfare of the child.

(4) If OIT decides the information received does not constitute a report of child abuse or neglect as defined in these rules, the report shall be closed at screening. If the report is closed at screening, the screener shall document the information supporting the decision to close. If the child is in the legal custody of the Department, OIT shall notify the child’s assigned caseworker of the decision to close the case. If the child has been placed in the CCP by OYA, OIT shall notify OYA. OIT shall notify the CCP and the individual who made the report that the report has been closed. All notices of the decision to close shall be made within three days of the decision.

(5) If, after screening, OIT determines that the information constitutes a report of child abuse or neglect under these rules, it shall open the case for investigation. If OIT decides to investigate, OIT shall immediately notify the child’s legal guardian, unless notification is prohibited by law or by court order, or could compromise the child’s safety or a criminal investigation. OIT shall also notify the child’s caseworker if the child is in the legal custody of the Department and shall notify OYA or the child’s tribe, as applicable.

(6) Whenever an OIT investigator takes photographs of physical injuries to a child who is in the custody of the Department, the investigator shall promptly forward copies of the photographs to the CAF caseworker assigned to the child. When conducting screenings or investigations in foster home settings, the investigator shall ascertain whether any other children living in the foster home are in the custody of the Department and if so, shall notify each child’s caseworker that a report of abuse or neglect in the foster home is being investigated or screened, and the nature of the investigation.

Stat. Auth: ORS 409.050 & 418.005
Stats. Implemented: ORS 418.005, 419B.015, 419B.017 & 419B.020
Hist.: DHSD 12-2007(Temp), f. & cert. ef.12-3-07 thru 5-30-08; DHSD 4-2008, f. & cert. ef. 5-30-08; DHSD 5-2010, f. 6-30-10, cert. ef. 7-1-10

407-045-0880

OIT Investigative Process in Cases Opened for Investigation

(1) OIT shall conduct thorough and unbiased investigations of abuse allegations.

(2) In conducting abuse investigations, the OIT investigator shall:

(a) Make in-person contact with the child;

(b) Interview the child, any witnesses, the accused person, and other individuals who may have knowledge of the facts of the abuse allegation or related circumstances;

(c) Review all relevant and material evidence;

(d) Take photographs as appropriate or necessary. If the investigator observes a child who has suffered a suspicious physical injury and the investigator has a reasonable suspicion that the injury may be the result of abuse, the investigator must immediately photograph or have photographed the suspicious physical injury, pursuant to ORS 418.747; and

(e) If the investigator observes a child who has suffered a suspicious physical injury and the investigator has a reasonable suspicion that the injury may be the result of abuse, the investigator must, pursuant to ORS 418.747, ensure that a designated medical professional conducts a medical assessment within 48 hours of the observation, or sooner if dictated by the child’s medical needs. If a designated medical professional is not available, the investigator must ensure that an available physician conducts the medical assessment. The investigator must document the efforts made to locate the designated medical professional.

(3) A person accused of abuse may have a peer consultant present during the OIT interview. Any individual providing peer support shall be obligated to maintain the confidentiality of information declared to be confidential under state or federal law. Peer supporters shall not be involved in the investigation as witnesses or potential witnesses. CCP certification or human resources staff shall not serve as peer supporters. An accused person wishing to have a peer supporter present during the interview shall notify the OIT investigator in advance of the scheduled interview and shall provide the investigator with the peer’s name and job title.

(4) When a law enforcement agency is conducting an investigation of the alleged abuse, the OIT investigator shall cooperate with the law enforcement agency. When a law enforcement agency is conducting a criminal investigation of the alleged abuse, OIT may also conduct its own investigation, as long as it does not interfere with the law enforcement agency investigation, when:

(a) There is potential for action by a licensing agency;

(b) Timely investigation by law enforcement is not likely; or

(c) When the law enforcement agency does not complete a criminal investigation.

(5) During the investigation, if the investigator knows or has reason to believe the child is an Indian child, the investigator must give notice to the child’s tribe within 24 hours that an investigation is being conducted, if the tribe has not already been notified.

Stat. Auth.: ORS 409.050 & 418.005
Stats. Implemented: ORS 409.185, 418.005, 418.747, 419B.045 & 419B.005-419B.050
Hist.: DHSD 12-2007(Temp), f. & cert. ef.12-3-07 thru 5-30-08; DHSD 4-2008, f. & cert. ef. 5-30-08; DHSD 5-2010, f. 6-30-10, cert. ef. 7-1-10

407-045-0890

Abuse Investigation and Protective Services Report

(1) When the investigation is complete, OIT shall issue a final decision stating whether the allegation is substantiated, not substantiated, or inconclusive, and shall prepare a written report which must include:

(a) A description of the allegation being investigated, including the date, location and time;

(b) An outline of steps taken in the investigation, a list of all witnesses interviewed, and a summary of the information provided by each witness;

(c) A summary of findings and conclusion concerning the allegation of abuse;

(d) A specific finding of substantiated, not substantiated, or inconclusive;

(e) A list of protective services provided to the child at the date of the report;

(f) A plan of action necessary to prevent further abuse of the child;

(g) Any additional corrective action required by the CCP and deadlines for completing the action;

(h) A list of any notices made to licensing or certifying agencies; and

(i) The name and title of the individual completing the report.

(2) The report must be competed within 30 business days from the date the case was opened for investigation. The OIT Director or designee may authorize an extension of time for good cause shown.

(3) The report and underlying investigatory documents are confidential and not available for public inspection. Except as provided in ORS 419B.035, names of witnesses and the alleged abuse victim are confidential unless the provisions of ORS 419B.035(1)(h) and (2)(a) apply. The names and identifying information about a reporter are confidential and may not be disclosed. Investigatory documents, including portions of the abuse investigation and protective services report that contain “individually identifiable health information,” as that term is defined in 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 179.509. Disclosure of substance abuse treatment records are governed by 42 U.S.C. 290dd-2 and 42 CFR Part 2. The Department shall make otherwise confidential records available to individuals identified in ORS 419B.035(1), and may release records if permitted by ORS 419B.035(3) and other federal and state confidentiality laws.

(4) Except as provided in section (3) of this rule, the Department 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, and to any public agency providing protective services for the child.

(5) Subject to ORS 419B.035(3), the Department may make the protective services report or relevant materials, in redacted form, available to the CCP, any public agency that licenses or certifies the individuals working in a CCP, or to any person who was alleged to have abused or neglected the child. The Department may not disclose confidential information which is prohibited by state or federal law.

(6) Individuals or entities receiving confidential information pursuant to this rule shall maintain the confidentiality of the information and may not re-disclose the confidential information to unauthorized individuals or entities, if disclosure is prohibited by state or federal law.

Stat. Auth.: ORS 409.050 & 418.005
Stats. Implemented: ORS 409.185, 409.225, 418.015, 419B.005-050 & 419B.035
Hist.: DHSD 12-2007(Temp), f. & cert. ef.12-3-07 thru 5-30-08; DHSD 4-2008, f. & cert. ef. 5-30-08; DHSD 5-2010, f. 6-30-10, cert. ef. 7-1-10

407-045-0900

Right to Request Review of a Substantiated Finding of Abuse

(1) When OIT has substantiated that abuse of a child has occurred, the person against whom the finding has been made, or a CCP against whom the finding has been made, has the right to request an administrative review of the OIT decision following the procedure set forth in OAR 407-045-0940.

(2) When OIT issues a substantiated abuse report, OIT shall also include written notice of the right to request an administrative review.

Stat. Auth.: ORS 409.050 & 418.005
Stats. Implemented: ORS 419B.010 & 419.370
Hist.: DHSD 12-2007(Temp), f. & cert. ef.12-3-07 thru 5-30-08; DHSD 4-2008, f. & cert. ef. 5-30-08; DHSD 5-2010, f. 6-30-10, cert. ef. 7-1-10

407-045-0910

Providing Notice of an OIT Substantiation

OIT must deliver a notice of an OIT substantiation of abuse or neglect to the person identified as the person substantiated in the OIT report or to a substantiated CCP. The notice must be delivered:

(1) By certified mail, restricted delivery, return receipt requested to the last known address of the person or CCP; or

(2) By hand delivery to the person or CCP. If hand delivered, the notice must be addressed to the person or to the OIT contact on record for a CCP and a copy of the notice must be signed and dated by the person or CCP representative acknowledging receipt and also signed by the person delivering the notice.

Stat. Auth.: ORS 409.050 & 418.005
Stats. Implemented: ORS 418.005
Hist.: DHSD 12-2007(Temp), f. & cert. ef.12-3-07 thru 5-30-08; DHSD 4-2008, f. & cert. ef. 5-30-08; DHSD 5-2010, f. 6-30-10, cert. ef. 7-1-10

407-045-0920

Claim of Lack of Notice

(1) If a person or CCP believes they are entitled to a notice of OIT substantiation but has not received one, the person or CCP may contact OIT to inquire about a review of the disposition.

(2) OIT must determine whether a notice of OIT substantiation was delivered to the person or CCP or if the person or CCP refused delivery of the notice, as evidenced by the returned receipt.

(3) If a notice was delivered to the person or CCP or if the person or CCP refused delivery of the notice, as evidenced by a returned receipt, and the time for requesting review has expired, OIT must:

(a) Prepare and deliver a notice of waived rights for review; or

(b) Inform the person or CCP by telephone of the information required in the notice of waived rights for review. OIT must document the telephone call.

(4) If no return receipt exists or if it appears that notice was not properly provided, OIT must deliver a notice of OIT substantiation as provided in these rules.

Stat. Auth.: ORS 409.050 & 418.005
Stats. Implemented: ORS 418.005
Hist.: DHSD 12-2007(Temp), f. & cert. ef.12-3-07 thru 5-30-08; DHSD 4-2008, f. & cert. ef. 5-30-08; DHSD 5-2010, f. 6-30-10, cert. ef. 7-1-10

407-045-0930

Information Included in the Notice of an OIT Substantiation

The notice of an OIT substantiation must include the following:

(1) The case number assigned to the investigation that resulted in the OIT substantiation;

(2) The full name of the person or CCP who has been identified as responsible for the child abuse as recorded in the OIT report;

(3) A statement that the OIT investigation resulted in a substantiation, including a description of the type of child abuse or neglect identified;

(4) A description of the OIT investigation, including a summary of findings and conclusions;

(5) A statement that the person or CCP has a right to request a review;

(6) Instructions for making a request for review, including the requirement that the person or CCP provide a full explanation why the person believes the OIT substantiation is wrong;

(7) A statement that the Department may not review an OIT substantiation if a legal proceeding is pending and that the person or CCP may request a review within 30 calendar days of the resolution of the pending legal proceeding unless the proceeding results in a legal finding that is consistent with the OIT substantiation;

(8) A statement that the person waives the right to request a review if the request for review is not received by OIT within 30 calendar days from the date of the notice of OIT substantiation, as documented by a returned receipt.

(9) A statement that the OSRC shall consider relevant documentary information, including the OIT report and accompanying exhibits, and information submitted with the request for review by the person or CCP requesting review.

(10) A statement that the OSRC may not re-interview the victim; interview or meet with the person or CCP, with others associated with the person or CCP, or with others mentioned in the report; or conduct a field assessment of the allegation of child abuse; and

(11) A statement that OIT shall send the person or CCP a notice of OSRC decision within 60 calendar days of receiving a request for review.

Stat. Auth.: ORS 409.050 & 418.005
Stats. Implemented: ORS 418.005
Hist.: DHSD 12-2007(Temp), f. & cert. ef.12-3-07 thru 5-30-08; DHSD 4-2008, f. & cert. ef. 5-30-08; DHSD 5-2010, f. 6-30-10, cert. ef. 7-1-10

407-045-0940

Requesting Review of an OIT Substantiation

A person or CCP requesting a review must use information contained in the notice of OIT substantiation to prepare a written request for review. The written request for review must be received by OIT within 30 calendar days of the receipt of the notice of OIT substantiation. If the request is submitted by mail, it must be postmarked within 30 calendar days. The request must include the following:

(1) Date the request for review is written;

(2) Case number found on the notice of OIT substantiation;

(3) Full name of the person or CCP;

(4) The person’s or CCP’s current name (if it has changed from the name noted in section (3) of this rule);

(5) A full explanation, responsive to the information provided in the Department’s notice, explaining why the person or CCP believes the OIT substantiation is wrong and any additional information and documents the person or CCP wants considered during the review;

(6) The person’s or CCP’s current street address and telephone number; and

(7) The person’s signature or the signature of a CCP employee authorized to sign on behalf of the organization.

Stat. Auth.: ORS 409.050 & 418.005
Stats. Implemented: ORS 418.005
Hist.: DHSD 12-2007(Temp), f. & cert. ef.12-3-07 thru 5-30-08; DHSD 4-2008, f. & cert. ef. 5-30-08; DHSD 5-2010, f. 6-30-10, cert. ef. 7-1-10

407-045-0950

When Legal Findings Precludes Right to Request a Review and Providing Notice of Legal Proceeding

(1) If OIT has knowledge of a pending legal proceeding, the OSRC may not review the disposition until the legal proceeding is completed.

(2) If OIT has knowledge of a pending legal proceeding, OIT must prepare and deliver a notice of legal proceeding within 30 calendar days after receipt of a request for review informing the person or CCP that the Department may not review the substantiation until the legal proceeding is completed and may not take further action on the request.

(3) If the completed legal proceeding results in a legal finding consistent with the OIT substantiation, the Department may not conduct a review. In that case, OIT shall provide a notice of legal finding to the person or CCP.

(4) If the completed legal proceeding results in a legal finding which is inconsistent with the OIT substantiation, the person or CCP may, at the conclusion of the legal proceeding, re-submit a request for review within 30 calendar days from the date of resolution of legal proceeding.

Stat. Auth.: ORS 409.050 & 418.005
Stats. Implemented: ORS 418.005
Hist.: DHSD 12-2007(Temp), f. & cert. ef.12-3-07 thru 5-30-08; DHSD 4-2008, f. & cert. ef. 5-30-08; DHSD 5-2010, f. 6-30-10, cert. ef. 7-1-10

407-045-0960

OIT Responsibilities Related to Notices and Reviews

(1) If a person or CCP asks to review Department records for the purpose of reviewing an OIT substantiation, state and federal confidentiality laws, including OAR 413-010-0000 to 413-010-0075 and 413-350-0000 to 413-350-0090, govern the inspection and copying of records.

(2) OIT must maintain records to demonstrate the following, when applicable:

(a) Whether the Department delivered a notice of OIT substantiation;

(b) Whether the notice of OIT substantiation was received by the addressee, as evidenced by a returned receipt documenting that the notice was received, refused, or not received; and

(c) The date a request for review was received by OIT.

(3) The OIT Director or designee must maintain a comprehensive record of completed OIT substantiation reviews.

Stat. Auth.: ORS 409.050 & 418.005
Stats. Implemented: ORS 418.005
Hist.: DHSD 12-2007(Temp), f. & cert. ef.12-3-07 thru 5-30-08; DHSD 4-2008, f. & cert. ef. 5-30-08; DHSD 5-2010, f. 6-30-10, cert. ef. 7-1-10

407-045-0970

OSRC Review

(1) The OSRC shall conduct a review and issue a notice of OSRC decision within 60 calendar days from the date OIT receives a request for review.

(2) The OSRC shall operate as follows:

(a) The OSRC shall consider relevant documentary information contained in the OIT investigation file, investigative report and exhibits, and information provided by the person.

(b) The OSRC may not re-interview the victim; interview or meet with the person or CCP staff, with others associated with the person or CCP, or with others mentioned in the report; or conduct a field assessment of the allegation of child abuse or neglect.

(c) All OSRC decisions must be decided by majority vote of the three participating committee members, all of whom must be present.

(d) The OSRC shall make a determination as to:

(A) Whether there is reasonable cause to believe that child abuse or neglect occurred; and

(B) Whether there is reasonable cause to believe that the person or CCP is responsible for the child abuse or neglect.

(e) The OSRC shall decide to either uphold the OIT substantiation, or change that conclusion to not substantiated or inconclusive.

(3) Within 60 calendar days from the date the OSRC receives the request for review, the OSRC shall prepare and send to the requestor by certified mail or restricted delivery, with return receipt requested, a notice of OSRC decision that includes the following:

(a) Whether there is reasonable cause to believe that child abuse occurred;

(b) Whether there is reasonable cause to believe that the person or CCP was responsible for the child abuse;

(c) Whether the OSRC is changing the OIT substantiation;

(d) If the OIT substantiation is changed, whether the changed conclusion is being changed to “not substantiated” or “inconclusive;" and

(e) A summary of the information used by the OSRC and its reasoning in reaching its decision.

(4) OSRC shall send the notice of OSRC decision to the person or CCP, CAF, the OIT investigator who conducted the investigation, applicable public agencies, other entities or individuals who received notice of the original substantiation, and the OIT Director.

Stat. Auth.: ORS 409.050 & 418.005
Stats. Implemented: ORS 418.005
Hist.: DHSD 12-2007(Temp), f. & cert. ef.12-3-07 thru 5-30-08; DHSD 4-2008, f. & cert. ef. 5-30-08; DHSD 8-2008, f. 8-29-08, cert. ef. 9-1-08; DHSD 5-2010, f. 6-30-10, cert. ef. 7-1-10

407-045-0980

Retaliation Prohibited

No individual, including a child who reports suspected abuse, shall be subject to retaliatory action by a CCP.

Stat. Auth.: ORS 409.050 & 418.005
Stats. Implemented: ORS 418.005
Hist.: DHSD 12-2007(Temp), f. & cert. ef.12-3-07 thru 5-30-08; DHSD 4-2008, f. & cert. ef. 5-30-08; DHSD 5-2010, f. 6-30-10, cert. ef. 7-1-10

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