OAR 411-052-0010: Letter of Determination

(1) Upon a determination of substantiated abuse or a rule violation, the Department must provide written letter of determination to the licensee. The written notice shall: (a) Explain the nature of each allegation. (b) Include the date and time of each occurrence. (c) For each allegation, include a determination of whether the allegation is substantiated, unsubstantiated, or inconclusive. (d) For each substantiated allegation, state whether the violation was abuse or another rule violation. (e) Include a copy of the complaint investigation report. (f) State that the complainant, any person reported to have committed wrongdoing, and the facility have 15 calendar days to provide additional or different information. (g) For each allegation, explain the applicable appeal rights available. (2) APPORTIONMENT. If the Department determines there is substantiated abuse, the Department may determine the licensee, an individual, or both the licensee and an individual were responsible for abuse. In determining responsibility, the Department shall consider intent, knowledge, and ability to control, and adherence to professional standards, as applicable. (a) LICENSEE RESPONSIBLE. Examples of when the Department shall determine the licensee is responsible for the abuse include, but are not limited to, the following, failure to: (A) Provide sufficient, qualified staffing in accordance with these rules without reasonable effort to correct. (B) Check for or act upon relevant information available from a licensing board. (C) Act upon information from any source regarding a possible history of abuse by any staff or prospective staff. (D) Adequately train, orient, or provide sufficient oversight to staff. (E) Provide adequate oversight to residents. (F) Allow sufficient time to accomplish assigned tasks. (G) Provide adequate services. (H) Provide adequate equipment or supplies. (I) Follow orders for treatment or medication. (b) INDIVIDUAL RESPONSIBLE. Examples of when the Department determines an individual is responsible include, but is not limited to: (A) Intentional acts against a resident, including assault, rape, kidnapping, murder, or sexual, verbal, or mental abuse. (B) Acts contradictory to clear instructions from the facility, such as those identified in section (2)(a) of this rule, unless the act is determined by the Department to be the responsibility of the facility. (C) Callous disregard for resident rights or safety. (D) Intentional acts against a resident's property (e.g., theft or misuse of funds). (c) An individual shall not be considered responsible for the abuse if the individual demonstrates the abuse was caused by factors beyond the individual's control. "Factors beyond the individual's control" are not intended to include such factors as misuse of alcohol or drugs or lapses in sanity. (d) NURSING ASSISTANTS. In cases of substantiated abuse by a nursing assistant, the written notice shall explain: (A) The Department's intent to enter the finding of abuse into the Nursing Assistant Registry following the procedure set out in OAR 411-089-0140. (B) The nursing assistant's right to provide additional information and request a contested case hearing as provided in OAR 411-089-0140. (3) DISTRIBUTION. (a) The written notice shall be mailed to: (A) The licensee. (B) Any person reported to have committed wrongdoing. (C) The complainant, if known. (D) The Long-term Care Ombudsman. (E) The LLA. (b) A copy of the written notice must be placed in the Department's facility complaint file. (4) Upon receipt of a notice that substantiates abuse for victims covered by ORS 430.735, the facility must provide written notice of the findings to the individual found to have committed abuse, residents of the facility, and the residents' case manager and representatives. (5) Licensees who acquire substantiated complaints pertaining to the health, safety, or welfare of residents may be assessed civil penalties, have conditions placed on their licenses, or have their licenses suspended, revoked, or not renewed. (6) COMPLAINT REPORTS. Copies of all completed complaint reports must be maintained and available to the public at the LLA. Individuals may purchase a photocopy upon requesting an appointment to do so. (7) The Department and the LLA shall not disclose information that may be used to identify a resident in accordance with OAR 411-020-0030 (Confidentiality) and federal HIPAA Privacy Rules. Completed reports placed in the public file must comply with OAR 411-052-0005 and must: (a) Protect the privacy of the complainant and the resident. The identity of the person reporting suspected abuse must be confidential and may be disclosed only with the consent of that person, by judicial process (including administrative hearing), or as required to perform the investigation by the Department or a law enforcement agency. (b) Treat the names of the witnesses as confidential information. (c) Clearly designate the final disposition of the complaint. (A) PENDING COMPLAINT REPORTS. Any information regarding the investigation of the complaint may not be filed in the public file until the investigation has been completed. (B) COMPLAINT REPORTS AND RESPONSES. The investigation reports, including copies of the responses with confidential information deleted, must be available to the public at the LLA office along with other public information regarding the AFH.