OAR 411-020-0105: Community Abuse Investigations Review and Due Process

(1) As used in this rule, “community abuse investigation” means the process of determining whether abuse or self-neglect occurred to an alleged victim: (a) Who resides in a non-facility setting; (b) Who resides in a non-licensed care facility; (c) Who resides in a licensed care facility when the alleged perpetrator is not employed by, volunteers for, or is contracted with the facility; or (d) Who receives Medicaid funded services from a regulated provider. (2) CENTRAL APS REVIEW OF COMMUNITY ABUSE INVESTIGATIONS WITH SUBSTANTIATED CONCLUSIONS. (a) Central APS is responsible for reviewing and approving substantiated allegations in APS Community abuse investigations, not including self-neglect. These reviews must be approved before an investigation is considered completed. (b) Central APS is notified in the Centralized Abuse Management (CAM) system whenever a local office has completed work on an APS Community abuse investigation that has one or more substantiated allegations against an alleged perpetrator. (c) Central APS shall review the investigation and associated documents in the Centralized Abuse Management (CAM) system, consulting with local office staff as needed, to ensure that the substantiation is based on a complete and thorough investigation and is supported by a preponderance of the available, documented evidence. (d) Central APS may issue amendment requests to local offices to request clarification, additional investigative work or other changes to the investigation, documentation, or conclusion. In instances of disagreement with a local office, Central APS may change investigative conclusions as needed, but will not revise information entered by the local office or perform any additional investigative work. (e) When Central APS confirms a substantiation under these rules, it shall issue a Notice of Substantiated Abuse (NOSA) to the alleged perpetrator in accordance with these rules. (3) PROVIDING NOTICE OF AN APS SUBSTANTIATED CONCLUSION. (a) Central APS must deliver a NOSA to the person identified as the alleged perpetrator in the substantiated conclusion in Community abuse investigations in one of the following ways: (A) By certified mail, restricted delivery, with a return receipt requested to the last known address of the alleged perpetrator; or (B) By hand delivery to the alleged perpetrator. If hand delivered, the notice must be addressed to the alleged perpetrator and a copy of the notice must be signed and dated by the alleged perpetrator to acknowledge receipt, signed by the person delivering the notice, and filed in the APS case file. (b) A NOSA is not required if safety concerns have been identified, and providing the notice would substantially increase the risk of harm, or would place the adult victim’s health or safety in imminent danger. This exception may only be made with approval from the APS Program Administrator or designee based on documentation of risk. (c) The delivery of the NOSA must be documented in the Centralized Abuse Management (CAM) system. A copy of the original NOSA delivered to the alleged perpetrator must be saved in the Centralized Abuse Management (CAM) system. The documentation must include: (A) Who made the notification; (B) To whom the notification was made; and (C) The date the notification was made. (d) If an alleged perpetrator believes they are entitled, under these rules to a NOSA, but has not received one, the alleged perpetrator may contact Central APS. (e) The NOSA includes the following: (A) The investigation number for the APS Community abuse investigation that resulted in the substantiated conclusion. (B) The name of the alleged perpetrator who has been identified as responsible for the abuse as it is recorded in the case record. (C) A statement that the APS conclusion was recorded as "substantiated" including a description of the type of abuse identified. (D) A brief description of how the APS substantiated conclusion was determined. (E) A statement about the right of the alleged perpetrator to submit a request for review of the substantiated conclusion. (F) Instructions for making a request for review, including the requirement that the alleged perpetrator provide a full explanation of why they believe the substantiated conclusion is in error. (G) A statement that the alleged perpetrator waives the right to request review if the request is not received by the Central APS within 30 calendar days the NOSA was mailed. (4) MAKING A REQUEST FOR AN ADMINISTRATIVE REVIEW OF AN APS SUBSTANTIATED CONCLUSION. (a) An alleged perpetrator substantiated for abuse in an APS Community abuse investigation may submit a written request for Central APS administrative review using information contained in their NOSA. (b) The request for administrative review must be received by Central APS within 30 calendar days of the mailing or hand delivery of the NOSA and must include the following information: (A) Date of the request for review; (B) Investigation number; (C) Full name of the alleged perpetrator; (D) A full explanation of why the alleged perpetrator disagrees with the substantiated conclusion; (E) Any additional relevant information and materials the alleged perpetrator wants considered during the review; (F) The alleged perpetrator’s current address and telephone number; and (G) The alleged perpetrator’s signature. (5) CENTRAL APS ADMINISTRATIVE REVIEW OF SUBSTANTIATED CONCLUSIONS IN COMMUNITY ABUSE INVESTIGATIONS. (a) When a timely request for review is received, Central APS must conduct an administrative review and issue a final order to the alleged perpetrator. (b) The Central APS administrative review must consider the following: (A) All relevant information and materials contained in the APS Community abuse investigation case file, including the APS Community abuse investigation report and conclusion, screening information, all relevant associated documents, and any new information provided by the alleged perpetrator; (B) Whether there is a preponderance of evidence to conclude the alleged abuse occurred; (C) Whether there is a preponderance of evidence to conclude the alleged perpetrator is responsible for the abuse; and (D) Whether there is a preponderance of evidence to conclude the type of abuse for which the APS Community abuse investigation was substantiated is correctly identified. (c) Upon completion of the administrative review, Central APS will make recommendations as follows: (A) Retain the substantiated conclusion; (B) Change the conclusion to “not substantiated” or “inconclusive”; or (C) Change the type of abuse for which the APS Community abuse investigation was substantiated. (d) At the conclusion of the review, Central APS must make their recommendations known to the APS Program Manager or designee. (e) The APS Program Manager or designee must: (A) Ask questions as needed for clarification; (B) Consider the recommendations and the basis for the recommendations; and (C) Make one of the following decisions: (i) Retain the substantiated conclusion; (ii) Change the conclusion to “not substantiated” or “inconclusive”; or (iii) Change the type of abuse for which the APS Community abuse investigation was substantiated. (f) The decision and the basis for the decision following the administrative review must be documented in a final order. (6) NOTICE OF CENTRAL APS ADMINISTRATIVE REVIEW DECISION IN APS COMMUNITY ABUSE INVESTIGATIONS. (a) The APS Program Manager or designee must prepare a written final order following the administrative review. (b) The final order must include the following: (A) Whether there is a preponderance of evidence to conclude that abuse occurred; (B) Whether there is a preponderance of evidence to conclude the alleged perpetrator was responsible for the abuse; (C) If the APS substantiated conclusion is changed, whether it will be changed to "inconclusive" or to "not substantiated"; (D) If the conclusion is determined to be “inconclusive” or “not substantiated”, notice of the change will be documented in the Centralized Abuse Management system; and (E) A summary of the information and reasoning upon which the decisions were based. (c) Central APS must place the request for administrative review and a copy of the final order following review in the case file and amend the electronic file to appropriately reflect the results of the review. (d) Central APS must send the final order by certified mail, restricted delivery, with a return receipt requested, to the alleged perpetrator. (7) LATE ADMINISTRATIVE REVIEW REQUESTS FOR APS COMMUNITY ABUSE INVESTIGATIONS. (a) Unless other applicable statutes or agency rules provide a different standard, Central APS may accept a late administrative review request if there is good cause for the failure to request the review in a timely manner. “Good cause” exists when an action, delay, or failure to act arises from an excusable mistake, surprise, excusable neglect, reasonable reliance on the statement of a party or agency relating to procedural requirements, from fraud, misrepresentation, or other misconduct of a party or agency participating in the proceeding. (b) In determining whether to accept a late administrative review request, Central APS may require the request to be supported by an affidavit or other writing that explains why the request for review is late and may conduct such further inquiry as it deems appropriate.