OAR 411-054-0105. Inspections and Investigations

(1) The facility must cooperate with Department personnel in inspections, complaint investigations, planning for resident care, application procedures, and other necessary activities. (a) Records must be made available to the Department upon request. Department personnel must have access to all resident and facility records and may conduct private interviews with residents. Failure to comply with this requirement shall result in regulatory action. (b) The Long Term Care Ombudsman must have access to all resident and facility records that relate to an investigation. Certified Ombudsman volunteers may have access to facility records that relate to an investigation and access to resident records with written permission from the resident or guardian. (c) The State Fire Marshal or authorized representative must be permitted access to the facility and records pertinent to resident evacuation and fire safety. (d) The Oregon Health Authority and appropriate Local Public Health Authority must be permitted access to the facility and records pertinent to investigation of illness or outbreak, as authorized by law. (2) The facility must not interfere with a good faith disclosure of information by an employee, volunteer concerning abuse or other action affecting a resident’s safety or welfare, as described in OAR 411-054-0028(4). (3) The Department must visit and inspect every licensed facility to determine whether the facility is maintained and operated in accordance with these rules. (a) The Department must inspect every facility at a minimum: (A) No less than 90 days and no more than 120 days after an initial license is issued or after a change in ownership of a facility. (B) Upon receipt of a license renewal application and fee. (C) For each year during which a facility does not have a full survey, the Department must conduct an in-person inspection of the kitchen and other areas where food is prepared for residents. (b) Inspections may be conducted at other times as determined by the Department. (c) Facilities not in compliance with these rules must submit a plan of correction that satisfies the Department within 10 business days of receipt of the inspection report. (d) Facilities must correct deficiencies within timeframes outlined in the accepted plan of correction. (e) Failure to be in substantial compliance upon reinspection may result in regulatory action to compel compliance. (f) Achieving substantial compliance is ultimately the facility’s responsibility, whether or not a plan of correction was followed. (g) The Department may impose sanctions for failure to comply with these rules. (4) Department staff may consult with and advise the facility administrator concerning methods of care, records, housing, equipment, and other areas of operation. (5) A copy of the most current inspection report and any conditions placed upon the license must be posted with the facility's license in public view near the main entrance to the facility. (6) ABUSE. Upon completion of substantiation of abuse, the Division shall immediately provide written notification to the facility. (a) WRITTEN NOTICE. 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 has 15 days to provide additional or different information; and (G) For each allegation, explain the applicable appeal rights available. (b) APPORTIONMENT. If the Department determines there is substantiated abuse, the Department may determine that the facility, an individual, or both the facility and an individual are responsible for the abuse. In determining responsibility, the Department shall consider intent, knowledge and ability to control, and adherence to professional standards as applicable. (A) FACILITY. Examples of when the Department shall determine the facility is responsible for the abuse include but are not limited to: (i) Failure to provide minimum staffing in accordance with these rules without reasonable effort to correct; (ii) Failure to check for or act upon relevant information available from a licensing board; (iii) Failure to act upon information from any source regarding a possible history of abuse by any staff or prospective staff; (iv) Failure to adequately provide oversight, training, or orientation of staff; (v) Failure to allow sufficient time to accomplish assigned tasks; (vi) Failure to provide adequate services; (vii) Failure to provide adequate equipment or supplies; or (viii) Failure to follow orders for treatment or medication. (B) INDIVIDUAL. Examples of when the Department shall determine the individual is responsible for the abuse include but are not limited to: (i) Intentional acts against a resident including assault, rape, kidnapping, murder, sexual abuse, or verbal or mental abuse; (ii) Acts contradictory to clear instructions from the facility, unless the act is determined by the Department to be caused by the facility as identified in paragraph (A) above; (iii) Callous disregard for resident rights or safety; or (iv) Intentional acts against a resident's property (e.g., theft, misuse of funds). (C) An individual may 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. (c) DUE PROCESS RIGHTS. (A) NON-NURSING ASSISTANT. The written notice in cases of substantiated abuse by a person other than a nursing assistant shall explain the person's right to: (i) File a petition for reconsideration pursuant to OAR 137-004-0080; and (ii) Petition for judicial review pursuant to ORS 183.484. (B) NURSING ASSISTANT. The written notice in cases of substantiated abuse by a nursing assistant shall explain: (i) 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; and (ii) The nursing assistant's right to provide additional information and request a contested case hearing as provided in OAR 411-089-0140. (C) FACILITY. The written notice must advise the facility of the facility's due process rights as appropriate. (d) DISTRIBUTION. (A) The written notice shall be mailed to the facility, any person reported to have committed wrongdoing, the complainant (if known), and the Department or Type B AAA office; and (B) A copy of the written notice shall be placed in the Department's facility complaint file. (e) NOTIFICATION. Upon receipt of a notice of substantiated abuse finding for victims as defined in ORS 430.735, the facility must provide written notification to the individual substantiated for abuse, the residents of the facility, designated contact persons and the residents’ case manager and guardian, if applicable. (7) LICENSING RULE VIOLATION. The Licensing Complaint Unit (LCU) must investigate allegations of licensing violations, other than abuse, that allege harm, potential for harm or insufficient number of direct care staff. (a) The Department will complete timely investigations. (A) LCU will initiate an on-site investigation within 24 hours or before the end of the next business day for complaints that allege a potential licensing violation which resulted in a resident’s death. (B) Investigations of alleged licensing violations for harm, potential for harm or insufficient direct care staff will initiate an investigation without undue delay. (b) A licensing complaint investigation is separate from and not a replacement for an adult protective services investigation as outlined in OAR 411-020. To make determinations, LCU will base findings on the following factors, including but not limited to: (A) Obtain and review all available documents and records relevant to the allegation. (B) Objective observations, if applicable to the investigation. (C) Conduct interviews with all relevant witnesses who have been identified by any source as having personal knowledge relevant to the complaint, including but not limited to: (i) Identified resident(s), (ii) Facility staff, (iii) Providers, (iv) Complainant, or (v) Long Term Care Ombudsman, including volunteers. (D) Interviews will be conducted in private, unless requested by the individual to not be conducted privately. (E) Department will assess whether the facility has qualified awake direct care staff in sufficient numbers to consistently meet the scheduled and unscheduled needs of all residents 24 hours a day when: (i) A complaint involves an allegation of insufficient staffing, (ii) A complaint qualifies for an Acuity-Based Staffing Tool review as outlined in OAR 411-054-0037, or (iii) An LCU investigation determines that insufficient direct care staff may have contributed to the alleged licensing violation. (c) LCU investigations include the following, but are not limited to: (A) Conducting an unannounced site visit to the facility. (B) Upon complainant request, the complainant, a designee of the complainant, or both, shall be allowed to accompany LCU to the facility as outlined in ORS 441.690. (C) Notifying the Department’s corrective action team if a situation requires the Department to provide an immediate regulatory response. (D) Meeting with facility administration or designee to review preliminary investigation findings. (E) Based on evidence gathered during the investigation, LCU must make a determination as to whether a licensing violation occurred. LCU will use the following determinations: (i) Substantiated (ii) Unsubstantiated (iii) Inconclusive. (d) The Department will complete complaint investigations within 90 days of receiving the initial complaint. (e) Investigation Report. Following completion of the licensing complaint investigation, the investigator must write a report supporting the findings. The report must include, at a minimum: (A) The investigator’s observations. (B) A review of documents and records. (C) A summary of witness statements. (D) A statement of the factual basis for the findings. (E) For reviews regarding insufficient direct care staff, a statement containing the basis for the findings, 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. (f) DUE PROCESS RIGHTS. The written notice must advise the facility of their due process rights as appropriate, including a statement that the complainant and the facility have 10 calendar days from the mail date to provide additional evidence. (g) DISTRIBUTION. If a complaint investigation under these rules results in a substantiated finding of a rule 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: (i) Be written in clear, concise language that is readily comprehensible by the average person; and (ii) 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. (h) A copy of the findings must be retained in the Department's facility complaint record. (8) IMMEDIATE JEOPARDY (a) When a situation of immediate jeopardy (IJ) has been determined during a licensing complaint investigation or inspection, a written plan of correction must be submitted and accepted while the Department is still at the facility. (b) Before the Department may make a preliminary finding of immediate jeopardy, the Department must, at a minimum, provide an opportunity for the facility to provide initial information or evidence to the Department during an investigation regarding the allegation in the complaint.