ORS 443.441: Assessment of sufficient numbers of direct care staff; complaint investigations.

(1) As used in this section: (a) “Consistently” means regularly and typically. (b) “Direct care staff” means staff who provide services for residents that include assistance with daily living, medication administration, resident-focused activities, supervision and support. (c) “Facility” includes a: (A) Residential care facility as defined in ORS 443.400; and (B) Facility with a memory care endorsement under ORS 443.886. (d) “License condition” has the meaning given that term in ORS 441.736. (e) “Substantial compliance” has the meaning given that term in ORS 443.436. (2) In determining whether a facility has qualified awake direct care staff in sufficient numbers to meet the scheduled and unscheduled needs of each resident 24 hours a day as prescribed by rule, the Department of Human Services shall conduct an assessment, in accordance with rules for home and community-based settings adopted by the Centers for Medicare and Medicaid Services, and consider whether the facility consistently: (a) Implements and maintains a current person-centered service plan for each resident as required by rule by the Centers for Medicare and Medicaid Services; (b) Provides timely access, 24 hours a day, to all supports needed for activities of daily living including eating, hydration, toileting, hygiene, bathing, dressing, oral care and other supports included in the resident’s person-centered service plan; (c) Provides a timely response to issues impacting the dignity of the resident, including but not limited to wet or soiled briefs, clothing or linens; and (d) Delivers care according to the schedule and procedures outlined in the resident’s person-centered service plan, including but not limited to wound care, medication administration, pain control, behavior support, cueing and repositioning. (3) For a complaint of a licensing violation, other than abuse, that alleges harm or potential harm to a resident or for a complaint that a facility does not have qualified awake direct care staff in sufficient numbers to meet the scheduled and unscheduled needs of each resident 24 hours a day: (a) The department shall begin: (A) An on-site complaint investigation within 24 hours or before the end of the next business day for a complaint that alleges a licensing violation resulting in death; and (B) A complaint investigation without undue delay for all other complaints; and (b) The investigator shall: (A) If the complaint involves an allegation of insufficient staff or if the investigator determines that insufficient staff may have contributed to the alleged licensing violation, assess whether the facility has qualified awake direct care staff in sufficient numbers to consistently meet the scheduled and unscheduled needs of each resident 24 hours a day pursuant to the criteria prescribed by rule under subsection (2) of this section. (B) Interview all available witnesses who have been identified by any source as having personal knowledge relevant to the complaint, including applicable staff or volunteers of the Long Term Care Ombudsman. All interviews shall be conducted privately, unless the witness requests that the interview not be conducted privately. (C) Write an investigation report that includes: (i) The investigator’s personal observations; (ii) A review of documents and records; (iii) A summary of all witness statements; and (iv) A statement of the factual basis for the findings for each incident or problem alleged in the complaint, including the investigator’s assessment of staffing levels and whether the facility has qualified awake direct care staff in sufficient numbers to consistently meet the scheduled and unscheduled needs of each resident 24 hours a day. (4) A complaint investigation under subsection (3) of this section is separate from, and not a replacement for, an adult protective services investigation. The department may initiate a complaint investigation before or at the same time as an adult protective services investigation. (5) No later than 90 days after a complaint investigation under subsection (3) of this section is initiated, the department shall provide the department’s findings to the facility, the complainant and the Long Term Care Ombudsman. (6) If a complaint investigation under subsection (3) of this section results in a substantiated finding of a violation, the department shall: (a) Immediately notify the facility and the Long Term Care Ombudsman in writing of the department’s findings and any license condition or other sanction imposed by the department as a result of the violation; and (b) Provide the facility and the Long Term Care Ombudsman with a summary report of the department’s findings. The summary may not include any identifiable information about the resident, except that the report may not be redacted in a way that fails to disclose that death or injury occurred. The summary report must, at a minimum: (A) Be written in clear, concise language that is readily comprehensible by the average person; and (B) Include the nature of the complaint, the type of violation found by the investigator in the course of the investigation, the nature of the harm experienced by any resident as a result of the violation, whether the violation led to death or physical injury of a resident or staff member and any license condition or other sanction imposed on the facility as a result of the violation. (7) Within 72 hours of receiving a summary report described in subsection (6) of this section, the facility shall provide notice of the substantiated finding of a violation and shall make the summary report available to all residents and to any contact persons designated by residents under ORS 443.444 if: (a) The department made a substantiated finding of a violation that is pervasive or that represents a systemic failure at the facility; and (b) The department: (A) Found that the violation caused the death of a resident or serious harm or serious physical injury to a resident; or (B) Imposed a licensing condition on the facility that includes a restriction on admissions. (8) If, as a result of a complaint investigation under subsection (3) of this section, the department imposes a licensing condition on a facility that includes a restriction on admissions: (a) The facility may submit to the department a written assertion of substantial compliance once the facility has remediated the violation. (b) Within five calendar days after receipt of the facility’s written assertion of substantial compliance, the department shall determine whether the facility has achieved substantial compliance. (c) The department shall lift the restriction within 24 hours if the department determines that the facility has achieved substantial compliance. (d) The facility may notify residents once the restriction on admissions has been lifted. [2021 c.392 §1; 2025 c.619 §1]