OAR 414-075-0130: Complaints and Investigations

(1) Unless already open regarding the same allegations, a complaint will be opened based on CCLD’s receipt of any of the following concerning licensed facilities, recorded programs, or unlicensed facilities alleged to be providing care for which a license or record is required: (a) A cross-report of child abuse or neglect from law enforcement agencies, ODHS, or OTIS, including a report that was closed at screening; (b) A report or information from or forwarded by another state or local agency or governmental unit; (c) A report or information from facility staff; or (d) Information received from the general public. (2) CCLD will encourage an individual or entity making a complaint to provide CCLD with their identity and contact information, subject to ORS 329A.390(4) prohibiting CCLD from disclosing the name, address, or other identifying information about the individual or entity that made the complaint, except as follows: (a) CCLD may share contact information for the individual or entity that made a complaint within the CCLD or with any agency or individual performing a tandem investigation with CCLD related to the complaint for purposes of confirming factual information or obtaining additional information; and (b) CCLD may disclose to an individual that it received a cross-report from law enforcement agencies, ODHS, or OTIS when such cross report is the child abuse or neglect history that has triggered a review of the individual’s suitability for enrollment in the Central Background Registry, but may not disclose the name, address or other identifying information about the individual or entity that made the report to law enforcement, ODHS, or OTIS. (3) CCLD may investigate any complaint that alleges a violation of a health and safety requirement received regarding any facility, including licensed facilities, recorded programs, and subsidized care facilities, as provided by these rules when the allegations indicate noncompliance with a provision in ORS 329A.250 to 329A.500 or a provision in Oregon Administrative Rules Chapter 414, Divisions, 175, 180, 210, 305, 310, 320, 360, 425 or 450. (4) CCLD may investigate any complaint that a facility as defined by these rules and including but not limited to individuals providing or claiming to be providing exempt care, is providing unlawful care as described in OAR 414-075-0230. (5) CCLD may investigate any facility for which CCLD has reason to believe or has received information that child care is being provided without a required certification, registration, or record. (a) For purposes of determining if the child care requires a certification, registration, or record, CCLD may request the facility to provide information concerning the identities of the children in care and how they are related to the caregiver and to each other. (b) If the facility does not provide CCLD with the information concerning the identities and relationships of the children in care as requested, CCLD may assume that care for a group of more than three children requires a certification, registration, or record from CCLD. (6) CCLD may conduct an in-person visit at any reasonable time of any facility to investigate a complaint. (a) An in-person visit is at a reasonable time at any time at least one child care child is in care at a licensed facility or is alleged to be in care at the facility. (b) An in-person visit is at a reasonable time at any time CCLD reasonably believes a child may be in care at an unlicensed facility. (7) CCLD staff may, but is not required to, use any method of investigation authorized by ORS 329A.390(7). In conducting an investigation CCLD staff may: (a) Make one or more visits to the facility under investigation to inspect the premises. (b) Receive, take, record, document, and review evidence. (c) Interview staff, volunteers, parents of child care children, or other individuals who have relevant information. (d) Request documents related to the matter under investigation. (e) Inspect and observe the operations of the facility. (f) Investigate collaboratively with partners. (g) Take the depositions of witnesses, including the person under investigation, in the manner prescribed by law for depositions in civil actions; (h) Compel the appearance of witnesses, including the person under investigation, in the manner prescribed by law for appearances in civil actions; (i) Require answers to interrogatories; (j) Compel the production of books, papers, accounts, documents or testimony that pertains to the matter under investigation; and (k) Issue subpoenas. (8) A registered, certified, recorded, or subsidized care facility must provide records or other documentation, and allow CCLD access to the facility for the purpose of conducting an investigation as required or permitted by ORS 329A.390 or these rules. CCLD or the Department as applicable: (a) May revoke for cause or deny for cause renewal of a registration, certification, record, or approval of subsidized care facility if access to the facility or its records has not been permitted. (b) May obtain a search warrant to obtain access to a facility as provided by ORS 329A.410 when access has not been permitted. (c) May revoke for cause or deny for cause renewal of a registration, certification, record, or approval of subsidized care facility when access was denied and later permitted only pursuant to a search warrant. (9) If the provider denies CCLD access to the premises or to facility staff for purposes of conducting an investigation of a complaint, CCLD may reach a valid finding based solely on other evidence independently obtained and that reasonably could have been corroborated or contradicted by information from the visit or interviews that the provider did not allow. (10) A provider or licensee must provide truthful, complete, and accurate information to CCLD staff in connection with any application, records or reports including attendance records, written or verbal communication, inspection, visit, or investigation. (a) When an applicable rule requires information to be provided immediately, it must be provided during the visit or if not in connection with a visit within 24 hours of CCLD’s request. (b) Information not required by rule to be provided immediately must be provided within 48 hours of CCLD’s request for it to be considered in the investigation. CCLD may issue a finding without reviewing information provided more than 48 hours after CCLD’s request. (11) An individual who is questioned by CCLD in connection with an investigation of a complaint may refuse to answer specific questions or provide documents by stating that the refusal is based on the privilege against self-incrimination, including when the answer to the question or the documents, if produced by the individual, would furnish a link in the chain of evidence needed for a criminal prosecution. CCLD is not required to inform an individual of this rule prior to questioning the individual. (12) CCLD may conduct compliance verification visits to a facility for the purposes of confirming compliance or continued compliance. (13) CCLD may conduct an unannounced complaint or compliance verification visit at any reasonable time. When deemed appropriate in the judgment of CCLD staff, including when the complaint contains sensitive allegations as defined in these rules, CCLD may choose to conduct interviews or portions of interviews during the complaint or compliance verification process by telephone, video-conference, or email in addition to an in-person visit. (14) The facility must prioritize children’s needs during any in-person visit and may not rely on the presence of CCLD staff at the facility to justify noncompliance with any requirement. (15) CCLD staff are not required to assist the facility in achieving compliance in response to an observed non-compliance and CCLD staff: (a) May not be counted by the facility for purposes of meeting ratio requirements. (b) May not contact parents to pick up children for purposes of achieving compliance with capacity, ratio, or group size or composition requirements. (c) May suggest to the facility specific actions to achieve compliance, including sending children home to achieve compliance with capacity, ratio, or group size or composition requirements. (d) May document whether a facility took immediate steps to achieve compliance or refused to do so. (16) The CCLD staff assigned to investigate a complaint must review and consider all evidence and documentation timely submitted by the facility as required by 414-075-0130(10) prior to issuing findings. (17) When the requirements for issuance of an emergency order of suspension or conditions are met, CCLD may take action prior to completion of an investigation based on facts confirmed in the pending investigation. (18) A CCLD investigation of a complaint is ongoing until CCLD staff has issued findings with respect to all potential non-compliances alleged in the complaint or identified in the investigation. (19) Unless the facility has closed before CCLD issues a finding on a complaint, CCLD staff may issue one of the following findings with respect to each complaint investigated by CCLD, and may issue separate findings with respect to each potential regulatory or statutory violation based on the fact(s) confirmed in the investigation: (a) Valid, when a reasonable person could conclude the noncompliance occurred based on the evidence; or (b) Invalid, when a reasonable person could not conclude that the noncompliance occurred based on the evidence; or (c) Unable to Substantiate, when a reasonable person could not decide whether the noncompliance occurred because of conflicting evidence or because information is not available. (20) An individual may become an exempt prohibited individual if they surrender their registration, certification or CBR enrollment during a CCLD investigation. See OAR 414-075-0230. (21) If a facility has closed before CCLD has issued a finding on a complaint because of a voluntary surrender or lapse of the license including because a timely renewal application was withdrawn, CCLD may complete the investigation and issue findings or may close the investigation as incomplete. If CCLD has closed an investigation as incomplete, CCLD may resume the investigation at any time including if the licensee applies to reopen the license or for another license. (22) A CCLD investigation for which findings on all allegations have been issued to the facility will be reopened only as follows: (a) CCLD will reopen an investigation if it has information that was not considered in the initial investigation that if confirmed could change the outcome, and CCLD has determined that reopening the investigation is necessary. (b) CCLD must notify the facility when it has reopened an investigation. (c) CCLD staff conducting the reopened investigation must issue superseding findings following the investigation that is reopened whether or not the outcome of the original finding is changed. (23) A child care facility may not interfere, discourage, or attempt to prevent a parent, legal guardian, current or former employee or volunteer from disclosing information to CCLD, law enforcement, any other entity with legal or regulatory authority over the facility, or to a child’s parent concerning allegations of any of the following as provided by ORS 329A.348: (a) Abuse or mistreatment of a child in the child care facility; (b) Violations of licensing requirements; (c) Criminal activity at the facility; (d) Violations of state or federal laws, or (e) Any practice that threatens the health and safety of a child in the child care facility. (24) Interference with good faith disclosures as described in section (23) of this rule includes: (a) Terminating or threatening to terminate care of a child if the parent or legal guardian of child discloses the information; or (b) Asking a parent or legal guardian of a child or, employee or volunteer to sign a nondisclosure or similar agreement prohibiting the disclosure of the information; or (c) Communicating to or training a current or former staff, volunteer, parent, or legal guardian that they may not or should not disclose information.