Chapter 443 Oregon Laws 2003

AN ACT

SB 18

Relating to investigations of abuse of disabled persons; creating new provisions; and amending ORS 430.735, 430.737 and 430.755.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 430.737 is amended to read:

430.737. The Legislative Assembly finds that for the purpose of preventing abuse and safeguarding and enhancing the welfare of adults who are mentally ill or developmentally disabled, it is necessary and in the public interest to require mandatory reports and thorough and unbiased investigations of allegedly abused mentally ill and developmentally disabled adults.

SECTION 2. Section 3 of this 2003 Act is added to and made a part of ORS 430.735 to 430.765.

SECTION 3. Any designee of the Department of Human Services who makes a determination or conducts an investigation under ORS 430.743 or 430.745 shall receive training and consultation that is necessary to allow the designee to make the determination or conduct a thorough and unbiased investigation. The training required under this section shall address the cultural and social diversity of the people of this state.

SECTION 4. ORS 430.735 is amended to read:

430.735. As used in ORS 430.735 to 430.765:

(1) “Abuse” means one or more of the following:

(a) Any death caused by other than accidental or natural means.

(b) Any physical injury caused by other than accidental means, or that appears to be at variance with the explanation given of the injury.

(d) Sexual harassment or exploitation, including but not limited to any sexual contact between an employee of a facility or community program and an adult.

(e) Neglect that leads to physical harm through withholding of services necessary to maintain health and well-being. For purposes of this paragraph, “neglect” does not include a failure of the state or a community program to provide services due to a lack of funding available to provide the services.

(2) “Adult” means a person who is mentally ill or developmentally disabled, who is 18 years of age or older and receives services from a community program or facility.

(3) “Adult protective services” means the necessary actions taken to prevent abuse or exploitation of an adult, to prevent self-destructive acts and to safeguard an adult’s person, property and funds. Any actions taken to protect an adult shall be undertaken in a manner that is least intrusive to the adult and provides for the greatest degree of independence.

(4) “Care provider” means an individual or facility that has assumed responsibility for all or a portion of the care of an adult as a result of a contract or agreement.

(5) “Community program” means a community mental health and developmental disabilities program as established in ORS 430.610 to 430.695.

(6) “Department” means the Department of Human Services.

(7) “Facility” means a residential treatment home or facility, residential care facility, adult foster care home, residential training home or facility or crisis respite facility.

(8) “Law enforcement agency” means:

(a) Any city or municipal police department;

(b) Any county sheriff’s office;

(d) Any district attorney.

(9) “Public or private official” means:

(a) Physician, naturopathic physician, osteopathic physician, psychologist, chiropractor or podiatric physician and surgeon, including any intern or resident;

(b) Licensed practical nurse, registered nurse, nurse’s aide, home health aide or employee of an in-home health service;

(c) Employee of the Department of Human Services, county health department, community mental health and developmental disabilities program or private agency contracting with a public body to provide any community mental health service;

(d) Peace officer;

(e) Member of the clergy;

(f) Licensed clinical social worker;

(g) Physical, speech or occupational therapist;

(h) Information and referral, outreach or crisis worker;

(i) Attorney;

(j) Licensed professional counselor or licensed marriage and family therapist; or

(k) Any public official who comes in contact with adults in the performance of the official’s duties.

SECTION 5. ORS 430.755 is amended to read:

430.755. (1) A facility, community program or person shall not retaliate against any person who reports in good faith suspected abuse or against the allegedly abused adult with respect to any report.

(2) Any facility, community program or person that retaliates against any person because of a report of suspected abuse [or neglect] shall be liable in a private action to that person for actual damages and, in addition, a penalty up to $1,000, notwithstanding any other remedy provided by law.

(3)(a) Any adverse action is evidence of retaliation if taken within 90 days of a report.

(b) For purposes of this subsection, “adverse action” means any action taken by a facility, community program or person involved in a report against the person making the report or against the adult with respect to whom the report was made because of the report, and includes but is not limited to:

(A) Discharge or transfer from the facility, except for clinical reasons;

(B) Discharge from or termination of employment;

(D) Restriction or prohibition of access to the facility or its residents.

SECTION 6. Section 3 of this 2003 Act and the amendments to ORS 430.735, 430.737 and 430.755 by sections 1, 4 and 5 of this 2003 Act apply to determinations made and investigations commenced on or after the effective date of this 2003 Act.

Approved by the Governor June 24, 2003

Filed in the office of Secretary of State June 24, 2003

Effective date January 1, 2004

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