OAR 411-085-0360: Abuse

(1) ABUSE IS PROHIBITED. The facility employees, agents, and licensee must not permit, aid, or engage in abuse of residents under their care. (2) REPORTERS AND MANDATORY REPORTERS. All persons are encouraged to report abuse and suspected abuse. The following persons are required to immediately report abuse and suspected abuse to The Department or law enforcement agency: (a) Physicians, including any resident physician or intern; (b) Licensed practical or registered nurses; (c) Employees of the Department, Area Agency on Aging, county health department, or community mental health program; (d) Nursing facility employees or any individual who contracts to provide services in a nursing facility; (e) Peace officers; (f) Clergy; (g) Licensed social workers; (h) Physical, speech, or occupational therapists; and (i) Family members of a resident, guardians, or legal counsel for a resident. (3) FACILITY REPORTING OF ABUSE OR SUSPECTED ABUSE. (a) The nursing facility administration must immediately notify the Department, local designee of the Department, or local law enforcement agency of any incident of abuse or suspected abuse. Physical injury of an unknown cause must be reported to the Department as suspected abuse, unless an immediate facility investigation reasonably concludes the physical injury is not the result of abuse. (b) The local law enforcement agency must be called first when the suspected abuse is believed to be a crime (for example, rape, murder, assault, burglary, kidnapping, or theft of controlled substances). (c) The local law enforcement agency must be called if the offices of the Department or designee are closed and there are no arrangements for after-hours investigation. (4) ABUSE COMPLAINT. The oral or written abuse complaint must include the following information when available; (a) Names, addresses, and phone numbers of alleged perpetrators, residents, and witnesses; (b) The nature and extent of the abuse or suspected abuse, including any evidence of previous abuse; (c) Any explanation given for the abuse or suspected abuse; and (d) Any other information the person making the report believes might be helpful in establishing the circumstances surrounding the abuse and the identity of the perpetrator. (5) PRIVILEGE. In the case of abuse of a resident, the physician-patient privilege, the husband-wife privilege, and the privileges extended under ORS 40.225 to 40.295 shall not be a ground for excluding evidence regarding the abuse, or the cause thereof, in any judicial proceeding resulting from an abuse complaint made pursuant to this section. (6) PROHIBITION OF RETALIATION OR INTERFERENCE WITH DISCLOSURE OF INFORMATION. (a) The facility licensee, employees, and agents must not retaliate in any way against anyone who participates in the making of an abuse complaint, including, but not limited to, restricting otherwise lawful access to the facility or to any resident or, if an employee, to dismissal or harassment. (b) The facility licensee, employees, and agents must not retaliate against any resident who is alleged to be a victim of abuse. (c) Anyone who, in good faith, reports abuse or suspected abuse shall have immunity from any liability that might otherwise be incurred or imposed with respect to the making or content of an abuse complaint. Any such person shall have the same immunity with respect to participating in judicial or administrative proceedings relating to the complaint. (d) The facility shall not interfere with a good faith disclosure of information by an employee or volunteer concerning the abuse or other action affecting the welfare of a resident in the facility. The information shared may include the reporting of violations of licensing or certification requirements, criminal activity at the facility, violations of state or federal laws or any practice that threatens the health and safety of a resident of the facility to: (A) The Long-Term Care Ombudsman, the Oregon Department of Human Services, the Centers for Medicare and Medicaid Services, a law enforcement agency or other entity with legal or regulatory authority over the facility; or (B) A family member, guardian, friend, or other person who is acting on behalf of the resident. (e) Unless performed with the intent to comply with state or federal law, including but not limited to protecting residents’ rights or carrying out a facility’s policies and procedures that are consistent with state and federal law, it is interference with the disclosure of information as described in subsection (d) if a facility licensee, employee, or agent: (A) Asks or requires an employee or volunteer to sign a nondisclosure or similar agreement prohibiting the employee or volunteer from disclosing the information; (B) Trains an employee or volunteer not to disclose the information; or (C) Takes actions or communicates to the employee or volunteer that the employee or volunteer may not disclose the information. (f) This rule does not authorize the disclosure of protected health information, as defined in ORS 192.556, other than as is permitted by the federal Health Insurance Portability and Accountability Act privacy regulations, 45 C.F.R. parts 160 and 164, ORS 192.553 to 192.581 or by other state or federal laws limiting the disclosure of health information. (7) INVESTIGATION BY FACILITY. (a) In addition to immediately reporting suspected abuse or neglect to the Department and law enforcement agency in accordance with 42 CFR 483.12, the facility must promptly investigate and document the findings of all reports of suspected abuse or neglect. (b) The facility must immediately develop a safety plan and take appropriate measures to protect residents and prevent reoccurrence of abuse and neglect for all residents while an investigation is in process. (c) The facility must ensure all investigations of alleged abuse and neglect are impartial, unbiased and without any actual or appearance of a conflict of interest. The facility must also ensure there are no conflicts of interest between the individual conducting the investigation and any individual involved with the abuse, neglect or suspected abuse or neglect. (d) The facility must immediately develop and implement a plan of correction when the results of the abuse investigation confirm the findings have been verified. (e) The facility must make available to the Department its investigation documents and findings upon request. (f) The facility must develop and implement written policies and procedures related to investigating abuse and neglect. The policy and procedures must also include the following: (A) The process the facility will follow to conduct investigations in an impartial and unbiased manner, without any actual or appearance of conflict of interest. (B) A written process to validate and document the individual conducting the investigation does not have a conflict of interest with the individuals involved in the abuse, neglect or suspected abuse or neglect and must provide the documentation upon request.