OAR 411-318-0015: Developmental Disabilities Services Complaints

(1) The Department and local programs must address all complaints in accordance with their policies and procedures and these rules. (2) Department staff and program staff addressing or reviewing a complaint may not have a conflict of interest with the complaint or the complainant. (3) A complaint related to a developmental disabilities service or provider may be filed at any time. (4) A complaint may include, but is not limited to: (a) An expression of dissatisfaction with a developmental disabilities service or provider. For example: (A) Person-centered planning as defined in OAR 411-317-0000 including, but not limited to, people chosen by an individual or an individual's ability to make informed, timely choices. (B) Service planning as described in OAR 411-415-0070 including, but not limited to, an individual's choice of providers or additional services meeting an individual’s needs, such as protocols, Positive Behavior Support Plans, Career Development Plans, etc. (C) Home and community-based services and settings as defined in OAR 411-317-0000 including, but not limited to, an individual's ability to choose their home, desired room decorations, food preferences, and transportation. (D) Employment services as described in OAR chapter 411, division 345 including, but not limited to, the choice of being employed, the choice to not be employed, or employment opportunities. (b) An allegation of a circumstance or event that is contrary to law, rule, policy, or otherwise, as determined by a complainant. (5) The complaint process described in this rule does not apply to a complaint in the following situations: (a) Anonymous complaints and allegations of discrimination are reviewed by the Governor's Advocacy Office. (b) The merits of the complaint have been, or are going to be, decided by a judge or a juvenile court ruling. (c) The subject matter of the complaint is not related to a developmental disabilities service or a provider. (d) The complaint is about the personnel of a local program. (A) An agency must include policies and procedures for the handling of personnel complaints in accordance with OAR 411-323-0060(9). (B) A Community Developmental Disabilities Program (CDDP) must include policies and procedures for the handling of personnel complaints in accordance with OAR 411-320-0175(1). (C) A Brokerage must include policies and procedures for the handling of personnel complaints in accordance with OAR 411-340-0060(1). (e) The subject matter of a complaint is subject to review under the following: (A) ORS 419B.005 through 419B.055 for child abuse reports. (B) OAR chapter 309, division 118 for the Oregon State Hospital. (C) OAR 407-005-0025 and 407-005-0030 for discrimination on the basis of disability. (D) OAR 407-005-0100 through 407-005-0120 for staff conduct or customer service received from Department personnel. (E) OAR chapter 411, division 020 for adult protective services provided by the Department's Aging and People with Disabilities Program. (F) OAR 410-141-3875 through 410-141-3915 for the Oregon Health Plan. (G) OAR 413-010-0420 for Department Child Welfare decisions. (H) OAR 413-010-0700 through 413-010-0750 for Department Child Protective Service dispositions. (I) OAR 413-120-0060 for Department Child Welfare adoption placement selections. (J) OAR chapter 582, division 020 for Department Vocational Rehabilitation service determinations. (K) OAR chapter 839, division 003 for a violation of civil rights investigation conducted by the Bureau of Labor and Industries. (6) If a complaint alleges circumstances that meet the criteria for an investigation of abuse, the allegation must be immediately reported to the appropriate protective service entity, such as: (a) The Department; (b) A CDDP; (c) A Brokerage; (d) The Office of Training, Investigations, and Safety; (e) Child Welfare; or (f) Law enforcement. (7) If a complaint falls under section (5) of this rule, the local program or Department must offer to assist the complainant with filing the complaint with the appropriate entity. (8) The local program or Department must ensure there is no punitive or retaliatory action threatened or taken against a complainant. (9) Information regarding the complaint process must be accessible for people with disabilities and provided in a person's preferred language. (10) POLICIES AND PROCEDURES. (a) A local program must have and implement written policies and procedures regarding individual complaints and the complaint process. (b) A copy of the policies and procedures for resolving complaints must be maintained on file at the office of the local program and must be available to staff, individuals, individuals' representatives, providers, and the Department. (c) The policies and procedures must include, but are not limited to, all of the following: (A) Method used to submit a complaint. For example, form 0946, verbal, email. (B) When a complaint must be logged in the complaint log. (C) Process for reviewing and resolving a complaint. (D) Time frames for responding to a complaint as set forth in this rule. (E) Documentation to be used in response to a complaint as set forth in this rule. (F) The process for assisting an individual or an individual's representative with filing a personnel complaint or a complaint with another entity according to section (7) of this rule. (G) Submission of documents to the Department. (H) Procedures on how to address threats or concerns of discrimination or retaliation based on the filing of a complaint. (I) The process for ensuring an individual or an individual’s representative agrees with a complaint filed on their behalf. (11) A local program must submit records requested by the Department within three business days from the receipt of the request. (12) A complaint received on the Complaint Form (0946) constitutes a complaint and must be addressed through the complaint process described in this rule. (13) An expression of dissatisfaction about a developmental disabilities service or provider that is not submitted on the Complaint Form (0946) must be addressed through the complaint process described in this rule, upon confirmation by an individual or an individual's representative that they wish to file it as a complaint or expresses the need to escalate it and receive a written outcome. (14) COMPLAINT LOG. (a) The Department and local programs must maintain a complaint log. At a minimum, the complaint log must include all of the following: (A) The legal name of the individual for which the complaint is being filed. (B) The individual’s preferred name. (C) The individual’s preferred method of contact. (D) The name and contact information of the person making the complaint, if known. (E) The name of the person taking the complaint. (F) The nature of the complaint including if there was a request for new or changed developmental disabilities services which may result in a hearing. (G) The date the complaint was received. (H) For a complaint filed by someone other than the individual or the individual’s representative, documentation from the individual or the individual’s representative that they agree to the content of the complaint and the date agreement was given. (I) The date the complaint was acknowledged as described in section (17) of this rule. (J) The date the local program offered the complainant an opportunity to discuss the complaint with the local program, as described in section (17) of this rule, and the date of the discussion, if applicable. (K) The dates of all reviews, discussions, and correspondence with the complainant. (L) The date of an extension for a written outcome that was mutually agreed upon as described in section (18) of this rule. (M) The written outcome of the complaint as described in section (18) of this rule. (N) The date and method the written outcome was provided to the complainant. (b) Personnel complaints and allegations of abuse must be maintained separately from the complaint log. (c) A local program must only document complaints about their local program in their complaint log. In the event a complaint is against another agency or program, the local program must: (A) Help the individual or the individual's representative file the complaint with the other agency or program; and (B) Document the support provided by the local program in the individual's progress notes. (15) FILING A COMPLAINT. (a) Complaints may be made orally, in writing, or on a Complaint Form (0946). (b) A complaint regarding dissatisfaction with the services of a provider may be filed with the Department, case management entity, or directly with the provider. (c) A complaint regarding dissatisfaction with the services of a case management entity may be filed with the Department or directly with the case management entity. (d) A complaint regarding dissatisfaction with the Department must be filed with the Department. (16) SCREENING COMPLAINTS. A local program must screen all complaints for potential hearing related and conflict of interest issues. (a) In the event that a complaint appears to allege a denial, reduction, suspension, or termination of a developmental disabilities service, the local program must issue a Notification of Planned Action and advise the complainant of the right to a hearing and assist the complainant with filing a hearing request, if so desired. (b) In the event a complainant decides to file a complaint rather than a hearing request, the local program must document the complainant's decision in the individual's progress notes. (c) In the event that a complaint is filed, the employee assigned to review the complaint must ensure there is no conflict of interest and engage appropriate subject matter experts not previously involved in related decision-making. (17) COMPLAINT ACKNOWLEDGEMENT AND OPPORTUNITY FOR DISCUSSION. (a) The local program or Department must provide acknowledgement of a complaint to an individual or the individual's representative within five business days from the day the complaint was received. (b) The acknowledgment may be written or verbal but must be documented in the complaint log. If acknowledgement is written, a copy must be maintained in the individual’s file. (c) The acknowledgement must inform the complainant about the opportunity to discuss the complaint with the Program Director of the local program or the Director of the Department, or their designee. (A) This discussion does not prevent the complainant from receiving a written outcome after the local program or Department has reviewed the complaint. (B) This discussion must be offered within 10 business days from the date of acknowledgement. The local program or Department must document all offers for a discussion in the complaint log. (C) In the event that a resolution is reached during the discussion, the local program or Department must provide a written outcome to the complainant within 10 business days from the date of the discussion. A copy of the written outcome must be maintained in the individual's file, and the date must be entered into the complaint log. (18) COMPLAINT INVESTIGATION AND WRITTEN OUTCOME. (a) The local program or Department must complete a complaint investigation and issue a written outcome to the complainant within 45 calendar days from the date the complaint is received, unless both parties mutually agree to an extension. (A) Mutual agreement on an extension must occur within 42 calendar days from the date the complaint is received. (B) The extension may not exceed an additional 45 calendar days. (b) The review of the complaint must include, but is not limited to, an investigation and records review of the complaint by the Program Director of the local program or the Director of the Department, or their designee. (c) The written outcome must include all of the following: (A) The rationale for the outcome, including the outcome of conferences or discussions with the complainant, individual, providers, or others. (B) The reports, documents, and other information relied upon in deciding the outcome of the complaint, or a summary of the reports, documents, and other information relied upon. (C) Information about the complainant's right to review the documents relied upon in determining the outcome (Notification of Rights form 0948). (D) Information about the complainant's right to request a review of the written outcome (Notification of Rights form 0948). (E) Notice that retaliation or discrimination, as a result of the outcome, is not tolerated. (d) A copy of the written outcome must be maintained in the individual’s file, and the date must be entered into the complaint log. (19) WRITTEN OUTCOME REVIEW. A complainant may request a review of a written outcome within 30 calendar days from the date identified in the written outcome. (a) If a provider issued the written outcome, the complainant may request a review of the written outcome by: (A) The local case management entity; or (B) The Department. (b) If a case management entity issued the written outcome, the complainant may request a review of the written outcome by the Department. The review by the Department is the final response. (c) The Department may uphold, alter, or overturn a written outcome issued by a provider or case management entity. (d) If the Department issued the written outcome, the complainant may request a review of the written outcome by the Director of the Department or the Director's designee. The written outcome issued by the Director, or the Director's designee, is the final response. (20) ACKNOWLEDGEMENT OF REQUEST FOR WRITTEN OUTCOME REVIEW AND OPPORTUNITY FOR DISCUSSION. (a) The case management entity or Department must provide acknowledgement of the request for a review of the written outcome to an individual or the individual’s representative within five business days from the day the request was received. (b) The acknowledgment may be written or verbal but must be documented in the complaint log. If acknowledgement is written, a copy must be maintained in the individual’s file. (c) The acknowledgement must inform the complainant about the opportunity to discuss the complaint with the Program Director of the local program or the Director of the Department, or their designee. (A) This discussion does not prevent the complainant from receiving a written determination after the receiving entity has reviewed the complaint. (B) This discussion must be offered within 10 business days from the date of acknowledgement. The case management entity or Department must document all offers for a discussion in the complaint log. (C) In the event that a resolution is reached during the discussion, the case management entity or Department must provide a written determination to the complainant within 10 business days from the date of the discussion. A copy of the written determination must be maintained in the individual's file, and the date must be entered into the complaint log. (21) WRITTEN OUTCOME REVIEW AND DETERMINATION. (a) The case management entity or Department must review the written outcome and issue a written determination to the complainant within 45 calendar days from the date the request is received, unless both parties mutually agree to an extension. (A) Mutual agreement on an extension must occur within 42 calendar days from the date the request is received (B) The extension may not exceed an additional 45 calendar days. (b) The review of the written outcome must include, but is not limited to, an investigation and records review by the Program Director of the case management entity or the Director of the Department, or their designee. (c) The written determination must include all of the following: (A) The rationale for the determination, including the outcome of conferences or discussions with the complainant, individual, providers, or others. (B) The reports, documents, and other information relied upon in making the determination, or a summary of the reports, documents, and other information relied upon. (C) Information about the complainant's right to review the documents relied upon in making the determination (Notification of Rights form 0948). (D) Notice that retaliation or discrimination, as a result of the determination, is not tolerated. (E) A copy of the written determination must be maintained in the individual’s file, and the date must be entered into the complaint log.