(1)The Division shall conduct an inspection of an AFH:
(a)Prior to issuance of a license;
(b)Upon receipt of an oral or written complaint of violations that threaten the health, safety, or welfare of individuals; or
(c)Anytime the Division has probable cause to believe that an AFH has violated a regulation or provision of these rules or is operating without a license.
(2)The Division or CMHP may conduct inspections of an AFH:
(a)Anytime such inspections are authorized by these rules and any other time the Division or CMHP considers it necessary to determine if an AFH is in compliance with these rules or with conditions placed upon the license;
(b)To determine if cited deficiencies have been corrected; and
(c)For the purpose of monitoring of the individuals’ care.
(3)State or local fire inspectors shall be permitted access to enter and inspect the AFH regarding fire safety upon request of the Division or CMHP.
(4)The Division and CMHP shall have full access to examine AFH records and accounts, including individual records and accounts, and to inspect the physical premises, including the buildings, grounds, equipment, and any vehicles.
(5)The Division or CMHP staff shall be permitted to interview the provider, resident manager, caregiver, and individuals. Interviews are confidential conducted in private and are confidential except as considered public record under ORS 430.763 (Confidentiality of records).
(6)Providers shall authorize resident managers and substitute caregivers to permit entrance by the Division or CMHP staff for the purpose of inspection and investigation.
(7)The Division or CMHP staff shall conduct inspections with or without advance notice to the provider, staff, or an individual of the AFH. The Division or CMHP may not give advance notice of any inspection if notice might obstruct or seriously diminish the effectiveness of the inspection or enforcement of these rules.
(8)If the Division or CMHP staff is not permitted access or inspection, a search warrant may be obtained.
(9)The inspector shall respect the private possessions and living area of individuals, providers, and caregivers while conducting an inspection.
(10)Completed reports on inspections, except for confidential information, shall be available to the public upon written request to the Division or CMHP during business hours.
(11)For individuals receiving services authorized or funded by the Division, the Division shall investigate allegations of abuse as defined in ORS 430.735 (Definitions for ORS 430.735 to 430.765) to 430.765 (Duty of officials to report abuse).
(12)When abuse is alleged or death of an individual has occurred and a law enforcement agency or the Division or its designee has determined to initiate an investigation, the provider may not conduct an internal investigation without prior authorization from the Division. For the purposes of this section, an internal investigation is defined as conducting interviews of the alleged victim, witness, the alleged perpetrator, or any other persons who may have knowledge of the facts of the abuse allegation or related circumstances; reviewing evidence relevant to the abuse allegation, other than the initial report; or any other actions beyond the initial actions of determining:
(a)If there is reasonable cause to believe that abuse has occurred; or
(b)If the alleged victim is in danger or in need of immediate protective services; or
(c)If there is reason to believe that a crime has been committed; or
(d)What, if any, immediate personnel actions must be taken.
(13)The Division or its designee shall complete an abuse investigation and protective services report in accordance with OAR 943-045-0250 (Purpose) through 0370.
(14)When the provider has been notified of the completion of the abuse investigation, a provider may conduct an investigation without Division approval to determine if any other personnel actions are necessary.
(15)Upon completion of the investigation report according to OAR 943-045-0320 (Abuse or Mistreatment Investigation and Protective Services Report), the sections of the report that are public records and not exempt from disclosure under the public records law shall be provided to the appropriate provider. The provider shall implement the actions necessary within the deadlines listed to prevent further abuse as stated in the report.
(16)A provider may not retaliate against any person who reports in good faith suspected abuse or against the individual with respect to the report.
(17)In accordance with ORS 430.755 (Retaliation prohibited) any provider who retaliates against any person because of a report of suspected abuse or neglect may be liable according to 430.755 (Retaliation prohibited), in a private action to that person for actual damages and, in addition, a penalty in accordance with 443.775 (Rules)(10) not withstanding any other remedy provided by law. The authority of the director to impose civil penalties and the factors to be considered shall be in accordance with 443.790 (Authority to impose civil penalty).
(18)In accordance with OAR 943-045-0340 (Prohibition Against Retaliation) Adverse Action, any adverse action creates a presumption of retaliation if taken within 90 days of a report of abuse. For purposes of this section, “adverse action” means any action taken by a community facility, community program, or person involved in a report against the person making the report or against the adult because of the report and includes but is not limited to the following:
(a)Discharge or transfer from the AFH except for clinical reasons;
(b)Discharge from or 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.
(19)Adverse action may also be evidence of retaliation after 90 days even though the presumption no longer applies.
Rule 309-040-0400 — Inspections,