75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
HA to HB 2442
LC 1472/HB 2442-10
HOUSE AMENDMENTS TO
HOUSE BILL 2442
By COMMITTEE ON HUMAN SERVICES
April 22
On page 1 of the printed bill, line 2, delete '124.005,
124.020,' and insert '124.050,'.
In line 3, delete '124.100, 124.105, 180.090,'.
In line 5, delete 'and section 2, chapter 204, Oregon Laws
2005; repealing ORS 430.746'.
On page 2, delete lines 13 and 14 and insert:
' (3) The website must notify the users that the:
' (a) Database does not contain records of abuse that occurred
before July 1, 2003; and
' (b) Definition of 'abuse' in ORS 124.050 and 430.735 changed
on January 1, 2010, in accordance with the amendments to ORS
124.050 and 430.735 by sections 9 and 15 of this 2009 Act.'.
In line 29, delete '2010' and insert '2011'.
Delete lines 32 through 45.
On page 3, delete lines 1 through 20 and insert:
' { + SECTION 4. + } { + (1) The Department of Human
Services shall report to each regular session of the Legislative
Assembly:
' (a) On the safety of individuals receiving developmental
disability services including, but not limited to:
' (A) The average turnover of direct care workers in service
settings.
' (B) A summary of the training provided by the department or
its contractors to direct care workers in service settings.
' (C) A summary of the core competencies required of direct
care workers in service settings by the state for licensing or
certification.
' (D) A summary of the average wages of direct care workers in
service settings, presented by type of services provided.
' (E) The number of complaints of abuse filed as required by
ORS 430.765 and received by the department under ORS 430.743,
reported by type of allegation.
' (F) The number of direct care workers in service settings who
were subject to criminal or civil action involving an individual
with a developmental disability.
' (G) The number of deaths, serious injuries, sexual assaults
and rapes alleged to have occurred in service settings.
' (b) A schedule of all license fees and civil penalties
established by rule pursuant to ORS 441.995, 443.455 and 443.790.
' (2) The department shall provide the report described in
subsection (1)(a) of this section to the appropriate legislative
committees, the Oregon Developmental Disabilities Council and to
the agency designated to administer the state protection and
advocacy system under ORS 192.517.
' (3) As used in this section, 'service settings' means any of
the following that provide developmental disability services:
' (a) An adult foster home as defined in ORS 443.705;
' (b) A residential facility as defined in ORS 443.400;
' (c) A location where home health services, as defined in ORS
443.005, are received by a resident;
' (d) A location where in-home care services, as defined in ORS
443.305, are received by a resident;
' (e) An institution under the control of the department under
ORS 179.321; and
' (f) A domiciliary care facility as defined in ORS
443.205. + } ' .
In line 21, delete 'finds that abuse' and insert '
substantiates an allegation of abuse that'.
In line 29, delete '124.005' and insert '124.050'.
In line 37, after the period delete the rest of the line and
delete lines 38 through 41.
In line 42, delete '(3)' and insert '(2)'.
On page 4, line 4, delete '164.135, 164.162, 164.170,' and
delete '165.013,'.
In line 5, delete '165.055 (4)(b),'.
Delete lines 9 through 45 and insert:
' (d) Of an attempt, conspiracy or solicitation to commit a
crime described in paragraphs (a) to (c) of this subsection; or
' (e) Of a crime in another jurisdiction that is substantially
equivalent, as defined by rule, to a crime described in
paragraphs (a) to (d) of this subsection.
' (3) Subsection (2) of this section does not apply to a peer
support specialist.
' (4) If the department has a record of substantiated abuse
committed by an employee or potential employee of a home health
agency, in-home care agency, adult foster home or residential
facility, regardless of whether criminal charges were filed, the
department shall notify, in writing, the employer and the
employee or potential employee.
' (5) As used in this section:
' (a) 'Adult foster home' has the meaning given that term in
ORS 443.705.
' (b) 'Home health agency' has the meaning given that term in
ORS 443.005.
' (c) 'In-home care agency' has the meaning given that term in
ORS 443.305.
' (d) 'Peer support specialist' means a person who:
' (A) Is providing peer support services as defined by the
department by rule;
' (B) Is under the supervision of a qualified clinical
supervisor;
' (C) Has completed training required by the department; and
' (D) Is currently receiving or has formerly received mental
health services, or is in recovery from a substance use disorder
and meets the abstinence requirements for staff providing
services in alcohol or other drug treatment programs.
' (e) 'Residential facility' has the meaning given that term in
ORS 443.400.
' { + SECTION 7. + } { + (1) The Department of Human
Services or a designee of the department shall conduct the
investigations and make the findings required by ORS 430.735 to
430.765.
' (2) The department shall prescribe by rule policies and
procedures for the investigations of allegations of abuse of a
person with a developmental disability as described in ORS
430.735 (2)(a) to ensure that the investigations are conducted in
a uniform, objective and thorough manner in every county of the
state including, but not limited to, policies and procedures
that:
' (a) Limit the duties of investigators solely to conducting
and reporting investigations of abuse;
' (b) Establish investigator caseloads based upon the most
appropriate investigator-to-complaint ratios;
' (c) Establish minimum qualifications for investigators that
include the successful completion of training in identified
competencies; and
' (d) Establish procedures for the screening and investigation
of abuse complaints and establish uniform standards for reporting
the results of the investigation.
' (3) A person employed by or under contract with the
department, the designee of the department or a community mental
health and developmental disabilities program to provide case
management services may not serve as the lead investigator of an
allegation of abuse of a person with a developmental disability.
' (4) The department shall monitor investigations conducted by
a designee of the department and shall immediately and
appropriately respond to any violation of the rules adopted
pursuant to this section. + }
' { + SECTION 8. + } (1) The district attorney in each county
shall be responsible for developing county multidisciplinary
teams to consist of but not be limited to personnel from the
community mental health program, the developmental disabilities
program, the Department of Human Services or a designee of the
department, the local area agency on aging, the district
attorney's office, law enforcement and an agency that advocates
on behalf of individuals with disabilities, as well as others
specially trained in the abuse of adults.'.
On page 5, line 2, delete 'vulnerable'.
In line 6, delete 'vulnerable'.
In line 10, delete 'vulnerable'.
In line 11, delete 'vulnerable' and delete 'Office of
Investigations and'.
In line 12, delete 'Training' and insert 'department or its
designee'.
In line 21, delete 'vulnerable'.
Delete lines 29 through 45 and delete pages 6 through 29.
On page 30, delete lines 1 through 38 and insert:
' { + SECTION 9. + } ORS 124.050 is amended to read:
' 124.050. As used in ORS 124.050 to 124.095:
' (1) 'Abuse' means one or more of the following:
' (a) Any physical injury { + to an elderly person + } caused
by other than accidental means, or which appears to be at
variance with the explanation given of the injury.
' (b) Neglect { - which leads to physical harm through
withholding of services necessary to maintain health and
well-being - } .
' (c) Abandonment, including desertion or willful forsaking of
an elderly person or the withdrawal or neglect of duties and
obligations owed an elderly person by a caretaker or other
person.
' (d) Willful infliction of physical pain or injury { + upon
an elderly person + }.
' (e) An act that constitutes a crime under ORS 163.375,
163.405, 163.411, 163.415, 163.425, 163.427, 163.465 or 163.467.
' { - (f) Wrongfully taking or appropriating money or
property, or knowingly subjecting an elderly person or person
with a disability to alarm by conveying a threat to wrongfully
take or appropriate money or property, which threat reasonably
would be expected to cause the person to believe that the threat
will be carried out. - }
' { + (f) Verbal abuse.
' (g) Financial exploitation.
' (h) Sexual abuse.
' (i) Involuntary seclusion of an elderly person for the
convenience of a caregiver or to discipline the person.
' (j) A wrongful use of a physical or chemical restraint of an
elderly person, excluding an act of restraint prescribed by a
licensed physician and any treatment activities that are
consistent with an approved treatment plan or in connection with
a court order. + }
' (2) 'Elderly person' means any person 65 years of age or
older who is not subject to the provisions of ORS 441.640 to
441.665.
' { + (3) 'Facility' means:
' (a) A long term care facility as that term is defined in ORS
442.015.
' (b) A residential facility as that term is defined in ORS
443.400, including but not limited to an assisted living
facility.
' (c) An adult foster home as that term is defined in ORS
443.705.
' (4) 'Financial exploitation' means:
' (a) Wrongfully taking the assets, funds or property belonging
to or intended for the use of an elderly person or a person with
a disability.
' (b) Alarming an elderly person or a person with a disability
by conveying a threat to wrongfully take or appropriate money or
property of the person if the person would reasonably believe
that the threat conveyed would be carried out.
' (c) Misappropriating, misusing or transferring without
authorization any money from any account held jointly or singly
by an elderly person or a person with a disability.
' (d) Failing to use the income or assets of an elderly person
or a person with a disability effectively for the support and
maintenance of the person.
' (5) 'Intimidation' means compelling or deterring conduct by
threat. + }
' { - (3) - } { + (6) + } 'Law enforcement agency' means:
' (a) Any city or municipal police department.
' (b) Any county sheriff's office.
' (c) The Oregon State Police.
' (d) Any district attorney.
' { + (7) 'Neglect' means:
' (a) Failure to provide the care, supervision or services
necessary to maintain the physical and mental health of an
elderly person that may result in physical harm or significant
emotional harm to the elderly person; or
' (b) The failure of a caregiver to make a reasonable effort to
protect an elderly person from abuse.
' (8) 'Person with a disability' means a person described in:
' (a) ORS 410.040 (7)(b); or
' (b) ORS 410.715. + }
' { - (4) - } { + (9) + } 'Public or private official'
means:
' (a) Physician, naturopathic physician, osteopathic physician,
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 or community mental health and developmental
disabilities program.
' (d) Peace officer.
' (e) Member of the clergy.
' (f) Licensed clinical social worker.
' (g) Physical, speech or occupational therapists.
' (h) Senior center employee.
' (i) Information and referral or outreach worker.
' (j) Licensed professional counselor or licensed marriage and
family therapist.
' (k) Any public official who comes in contact with elderly
persons in the performance of the official's official duties.
' (L) Firefighter or emergency medical technician.
' { + (10) 'Services' includes but is not limited to the
provision of food, clothing, medicine, housing, medical services,
assistance with bathing or personal hygiene or any other service
essential to the well-being of an elderly person.
' (11)(a) 'Sexual abuse' means:
' (A) Sexual contact with an elderly person who does not
consent or is considered incapable of consenting to a sexual act
under ORS 163.315;
' (B) Sexual harassment, sexual exploitation or inappropriate
exposure to sexually explicit material or language;
' (C) Any sexual contact between an employee of a facility or
paid caregiver and an elderly person served by the facility or
caregiver;
' (D) Any sexual contact between an elderly person and a
relative of the elderly person other than a spouse; or
' (E) Any sexual contact that is achieved through force,
trickery, threat or coercion.
' (b) 'Sexual abuse' does not mean consensual sexual contact
between an elderly person and a paid caregiver who is the spouse
of the elderly person.
' (12) 'Sexual contact' has the meaning given that term in ORS
163.305.
' (13) 'Verbal abuse' means to threaten significant physical or
emotional harm to an elderly person or a person with a disability
through the use of:
' (a) Derogatory or inappropriate names, insults, verbal
assaults, profanity or ridicule; or
' (b) Harassment, coercion, threats, intimidation, humiliation,
mental cruelty or inappropriate sexual comments. + }
' { + SECTION 10. + } ORS 124.065 is amended to read:
' 124.065. (1) When a report is required under ORS 124.060, an
oral report shall be made immediately by telephone or otherwise
to the local office of the Department of Human Services or to a
law enforcement agency within the county where the person making
the report is at the time of contact. If known, such reports
shall contain the names and addresses of the elderly person and
any persons responsible for the care of the elderly person, the
nature and the extent of the abuse (including any evidence of
previous abuse), the explanation given for the abuse and any
other information which the person making the report believes
might be helpful in establishing the cause of the abuse and the
identity of the perpetrator.
' (2) When a report { + of a possible crime + } is received by
the department under ORS 124.060, the department { - may - }
{ + or the designee of the department shall + } notify the law
enforcement agency having jurisdiction within the county where
the report was made. If the department { + or the designee of
the department + } is unable to gain access to the allegedly
abused elderly person, the department { + or the designee of the
department + } may contact the law enforcement agency for
assistance and the agency shall provide assistance.
' { + (3) If the department or the designee of the department
determines that there is reason to believe a crime has been
committed, the department or the designee of the department shall
immediately notify the law enforcement agency having jurisdiction
within the county where the report was made. The law enforcement
agency shall confirm to the department or the designee of the
department its receipt of the notification within two business
days.
' (4) + } When a report is received by a law enforcement
agency, the agency shall immediately notify the law enforcement
agency having jurisdiction if the receiving agency does not. The
receiving agency shall also immediately notify the local office
of the department in the county where the report was made.
' { + SECTION 11. + } ORS 124.065, as amended by section 10
of this 2009 Act, is amended to read:
' 124.065. (1) When a report is required under ORS 124.060, an
oral report shall be made immediately by telephone or otherwise
to the local office of the Department of Human Services or to a
law enforcement agency within the county where the person making
the report is at the time of contact. If known, such reports
shall contain the names and addresses of the elderly person and
any persons responsible for the care of the elderly person, the
nature and the extent of the abuse (including any evidence of
previous abuse), the explanation given for the abuse and any
other information which the person making the report believes
might be helpful in establishing the cause of the abuse and the
identity of the perpetrator.
' (2) When a report of a possible crime is received by the
department under ORS 124.060, the department or the designee of
the department shall notify the law enforcement agency having
jurisdiction within the county where the report was made. If the
department or the designee of the department is unable to gain
access to the allegedly abused elderly person, the department or
the designee of the department may contact the law enforcement
agency for assistance and the agency shall provide assistance.
' (3) If the department or the designee of the department
determines that there is reason to believe a crime has been
committed, the department or the designee of the department shall
immediately notify the law enforcement agency having jurisdiction
within the county where the report was made. The law enforcement
agency shall confirm to the department or the designee of the
department its receipt of the notification { - within two
business days - } .
' (4) When a report is received by a law enforcement agency,
the agency shall immediately notify the law enforcement agency
having jurisdiction if the receiving agency does not. The
receiving agency shall also immediately notify the local office
of the department in the county where the report was made.
' { + SECTION 12. + } ORS 124.070 is amended to read:
' 124.070. (1) Upon receipt of the report required under ORS
124.060, the Department of Human Services or the law enforcement
agency shall cause an investigation to be commenced promptly to
determine the nature and cause of the abuse. { + The
investigation shall include a visit to the named elderly person
and communication with those individuals having knowledge of the
facts of the particular case. If the alleged abuse occurs in a
residential facility, the department shall conduct an
investigation regardless of whether the suspected abuser
continues to be employed by the facility. + }
' (2) If the department { - or law enforcement agency
conducting the investigation - } finds reasonable cause to
believe that { - abuse - } { + a crime + } has occurred, the
department { - or law enforcement agency - } shall notify in
writing the appropriate law enforcement agency { - or the local
office of the department, respectively. The investigation shall
include a visit to the named elderly person and consultation with
those individuals having knowledge of the facts of the particular
case - } . { + If the law enforcement agency conducting the
investigation finds reasonable cause to believe that abuse has
occurred, the agency shall notify the department in writing. + }
Upon completion of the evaluation of each case, { + the
department shall prepare + } written findings { - shall be
prepared which shall - } { + that + } include recommended
action and a determination of whether protective services are
needed.
' { + (3) Within three business days of receiving
notification from the department that there is reasonable cause
to believe that a crime has occurred, a law enforcement agency
shall notify the department:
' (a) That there will be no criminal investigation, including
an explanation of why there will be no criminal investigation;
' (b) That the investigative findings have been given to the
district attorney for review; or
' (c) That a criminal investigation will take place.
' (4) If a law enforcement agency gives the findings of the
department to the district attorney for review, within five
business days the district attorney shall notify the department
that the district attorney has received the findings and shall
inform the department whether the findings have been received for
review or for filing charges. A district attorney shall make the
determination of whether to file charges within six months of
receiving the findings of the department.
' (5) If a district attorney files charges stemming from the
findings of the department and the district attorney makes a
determination not to proceed to trial, the district attorney
shall notify the department of the determination within five
business days and shall include information explaining the basis
for the determination. + }
' { + SECTION 13. + } ORS 124.070, as amended by section 12
of this 2009 Act, is amended to read:
' 124.070. (1) Upon receipt of the report required under ORS
124.060, the Department of Human Services or the law enforcement
agency shall cause an investigation to be commenced promptly to
determine the nature and cause of the abuse. The investigation
shall include a visit to the named elderly person and
communication with those individuals having knowledge of the
facts of the particular case. If the alleged abuse occurs in a
residential facility, the department shall conduct an
investigation regardless of whether the suspected abuser
continues to be employed by the facility.
' (2) If the department finds reasonable cause to believe that
a crime has occurred, the department shall notify in writing the
appropriate law enforcement agency. If the law enforcement agency
conducting the investigation finds reasonable cause to believe
that abuse has occurred, the agency shall notify the department
in writing. Upon completion of the evaluation of each case, the
department shall prepare written findings that include
recommended action and a determination of whether protective
services are needed.
' (3) { - Within three business days of - } { + After + }
receiving notification from the department that there is
reasonable cause to believe that a crime has occurred, a law
enforcement agency shall notify the department:
' (a) That there will be no criminal investigation, including
an explanation of why there will be no criminal investigation;
' (b) That the investigative findings have been given to the
district attorney for review; or
' (c) That a criminal investigation will take place.
' (4) If a law enforcement agency gives the findings of the
department to the district attorney for review, { - within five
business days - } the district attorney shall notify the
department that the district attorney has received the findings
and shall inform the department whether the findings have been
received for review or for filing charges. A district attorney
shall make the determination of whether to file charges within
six months of receiving the findings of the department.
' (5) If a district attorney files charges stemming from the
findings of the department and the district attorney makes a
determination not to proceed to trial, the district attorney
shall notify the department of the determination { - within
five business days - } and shall include information explaining
the basis for the determination.
' { + SECTION 14. + } { + A person who has personal
knowledge that an employee or former employee of the person was
found by the Department of Human Services, a law enforcement
agency or a court to have committed abuse under ORS 124.005 to
124.040, 124.050 to 124.095 or 124.100 to 124.140, is immune from
civil liability for the disclosure to a prospective employer of
the employee or former employee of known facts concerning the
abuse. + }
' { + SECTION 15. + } 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. - }
' { + (a) Abandonment, including desertion or willful
forsaking of a person with a developmental disability or the
withdrawal or neglect of duties and obligations owed a person
with a developmental disability by a caregiver or other
person. + }
' (b) Any physical injury { + to an adult + } caused by other
than accidental means, or that appears to be at variance with the
explanation given of the injury.
' (c) Willful infliction of physical pain or injury { + upon
an adult + }.
' (d) Sexual { - harassment or exploitation, including but
not limited to any sexual contact between an employee of a
facility or community program and - } { + abuse of + } 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 - } .
' { + (f) Verbal abuse of a person with a developmental
disability.
' (g) Financial exploitation of a person with a developmental
disability.
' (h) Involuntary seclusion of a person with a developmental
disability for the convenience of the caregiver or to discipline
the person.
' (i) A wrongful use of a physical or chemical restraint upon a
person with a developmental disability, excluding an act of
restraint prescribed by a licensed physician and any treatment
activities that are consistent with an approved treatment plan or
in connection with a court order.
' (j) An act that constitutes a crime under ORS 163.375,
163.405, 163.411, 163.415, 163.425, 163.427, 163.465 or 163.467.
' (k) Any death of an adult caused by other than accidental or
natural means. + }
' (2) 'Adult' means a person 18 years of age or older with:
' (a) A developmental disability who is currently receiving
services from a community program or facility or was previously
determined eligible for services as an adult by a community
program or facility; or
' (b) A mental illness who is receiving 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, including petitioning for a protective order
as defined in ORS 125.005. 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 - } { +
'Caregiver ' means an individual, whether paid or unpaid, or
a + } 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) - } { + (6) + } 'Facility' means a residential
treatment home or facility, residential care facility, adult
foster home, residential training home or facility or crisis
respite facility.
' { + (7) 'Financial exploitation' means:
' (a) Wrongfully taking the assets, funds or property belonging
to or intended for the use of a person with a developmental
disability.
' (b) Alarming a person with a developmental disability by
conveying a threat to wrongfully take or appropriate money or
property of the person if the person would reasonably believe
that the threat conveyed would be carried out.
' (c) Misappropriating, misusing or transferring without
authorization any money from any account held jointly or singly
by a person with a developmental disability.
' (d) Failing to use the income or assets of a person with a
developmental disability effectively for the support and
maintenance of the person.
' (8) 'Intimidation' means compelling or deterring conduct by
threat. + }
' { - (8) - } { + (9) + } 'Law enforcement agency' means:
' (a) Any city or municipal police department;
' (b) Any county sheriff's office;
' (c) The Oregon State Police; or
' (d) Any district attorney.
' { + (10) 'Neglect' means:
' (a) Failure to provide the care, supervision or services
necessary to maintain the physical and mental health of a person
with a developmental disability that may result in physical harm
or significant emotional harm to the person;
' (b) The failure of a caregiver to make a reasonable effort to
protect a person with a developmental disability from abuse; or
' (c) Withholding of services necessary to maintain the health
and well-being of an adult which leads to physical harm of an
adult.
' (11) 'Person with a developmental disability' means a person
described in subsection (2)(a) of this section. + }
' { - (9) - } { + (12) + } '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 { - . - } { + ; or
' (L) Firefighter or emergency medical technician.
' (13) 'Services' includes but is not limited to the provision
of food, clothing, medicine, housing, medical services,
assistance with bathing or personal hygiene or any other service
essential to the well-being of an adult.
' (14)(a) 'Sexual abuse' means:
' (A) Sexual contact with a nonconsenting adult or with an
adult considered incapable of consenting to a sexual act under
ORS 163.315;
' (B) Sexual harassment, sexual exploitation or inappropriate
exposure to sexually explicit material or language;
' (C) Any sexual contact between an employee of a facility or
paid caregiver and an adult served by the facility or caregiver;
' (D) Any sexual contact between a person with a developmental
disability and a relative of the person with a developmental
disability other than a spouse; or
' (E) Any sexual contact that is achieved through force,
trickery, threat or coercion.
' (b) 'Sexual abuse' does not mean consensual sexual contact
between an adult and a paid caregiver who is the spouse of the
adult.
' (15) 'Sexual contact' has the meaning given that term in ORS
163.305.
' (16) 'Verbal abuse' means to threaten significant physical or
emotional harm to a person with a developmental disability
through the use of:
' (a) Derogatory or inappropriate names, insults, verbal
assaults, profanity or ridicule; or
' (b) Harassment, coercion, threats, intimidation, humiliation,
mental cruelty or inappropriate sexual comments. + }
' { + SECTION 16. + } ORS 430.743 is amended to read:
' 430.743. (1) When a report is required under ORS 430.765 (1)
and (2), an oral report shall be made immediately by telephone or
otherwise to { - the designee of - } the Department of Human
Services { + , the designee of the department + } or a law
enforcement agency within the county where the person making the
report is at the time of contact. If known, the report shall
include:
' (a) The name, age and present location of the allegedly
abused adult;
' (b) The names and addresses of persons responsible for the
adult's care;
' (c) The nature and extent of the alleged abuse, including any
evidence of previous abuse;
' (d) Any information that led the person making the report to
suspect that abuse has occurred plus any other information that
the person believes might be helpful in establishing the cause of
the abuse and the identity of the perpetrator; and
' (e) The date of the incident.
' (2) When a report is received by the department's designee
under this section, the designee shall immediately determine
whether { + abuse occurred and if + } the reported victim has
sustained any serious injury. If so, the designee shall
immediately notify the department. If there is reason to believe
a crime has been committed, the designee shall
{ + immediately + } notify the law enforcement agency having
jurisdiction within the county where the report was made. If the
designee is unable to gain access to the allegedly abused adult,
the designee may contact the law enforcement agency for
assistance and the agency shall provide assistance. When a report
is received by a law enforcement agency, the agency shall
immediately notify the law enforcement agency having jurisdiction
if the receiving agency does not. The receiving agency shall also
immediately notify the department in cases of serious injury or
death.
' { + (3) Upon receipt of a report of abuse under this
section, the department or its designee shall notify:
' (a) The agency providing primary case management services to
the adult; and
' (b) The guardian or case manager of the adult unless the
notification would undermine the integrity of the investigation
because the guardian or case manager is suspected of committing
abuse. + }
' { + SECTION 17. + } ORS 430.745 is amended to read:
' 430.745. (1) Upon receipt of any report of alleged abuse of
an adult, { + or upon receipt of a report of a death of an adult
that may have been caused by other than accidental or natural
means, + } the Department of Human Services or its designee shall
investigate promptly to determine { - the nature and cause of
the abuse - } { + if abuse occurred or whether a death was
caused by abuse + }. If the department or its designee determines
that a law enforcement agency is conducting an investigation of
the same incident, the department or its designee need not
conduct its own investigation.
' (2) The department or its designee may enter a facility and
inspect and copy records of a facility or community program if
necessary for the completion of { - its - } { + the + }
investigation.
' (3) In cases in which the department, its designee or the law
enforcement agency conducting the investigation finds reasonable
cause to believe that an adult has died as a result of abuse, it
shall report that information to the appropriate medical
examiner. The medical examiner shall complete an investigation as
required under ORS chapter 146 and report the findings to the
department, its designee or the law enforcement agency.
' (4) Upon completion of an investigation conducted by a law
enforcement agency, that agency shall provide the department or
its designee with a report of its findings and supporting
evidence.
' (5) If the department or its designee determines that there
is reasonable cause to believe that abuse occurred at a facility
or that abuse was caused or aided by a person licensed by a
licensing agency to provide care or services, { - it - } { +
the department or its designee + } shall immediately notify each
appropriate licensing agency and provide each licensing agency
with a copy of its investigative findings.
' (6) Upon completion of the investigation, the department or
its designee shall prepare written findings { - which - }
{ + that + } include recommended actions and a determination of
whether protective services are needed. { + The department or
its designee shall provide + } appropriate protective services
{ - shall be provided - } as necessary to prevent further abuse
of the adult. Any protective services provided shall be
undertaken in a manner that is least intrusive to the adult and
provides for the greatest degree of independence that is
available within existing resources.
' { + (7) If the department or its designee determines that
there is reason to believe a crime has occurred, the department
or its designee shall report the findings to the appropriate law
enforcement agency. The law enforcement agency must confirm its
receipt of the report to the department or its designee within
two business days. Within three business days of receipt of the
findings, the agency shall notify the department or its designee:
' (a) That there will be no criminal investigation, including
an explanation of why there will be no criminal investigation;
' (b) That the findings have been given to the district
attorney for review; or
' (c) That there will be a criminal investigation.
' (8) If a law enforcement agency gives the findings of the
department or its designee to the district attorney for review,
within five business days the district attorney shall notify the
department or its designee that the district attorney has
received the findings and shall inform the department or its
designee whether the findings have been received for review or
for filing charges. A district attorney shall make the
determination of whether to file charges within six months of
receiving the findings of the department or its designee.
' (9) If a district attorney files charges stemming from a
report from the department or its designee and the district
attorney makes a determination not to proceed to trial, the
district attorney shall notify the department or its designee of
the determination within five business days and shall include
information explaining the basis for the determination. + }
' { + SECTION 18. + } ORS 430.745, as amended by section 17
of this 2009 Act, is amended to read:
' 430.745. (1) Upon receipt of any report of alleged abuse of
an adult, or upon receipt of a report of a death of an adult that
may have been caused by other than accidental or natural means,
the Department of Human Services or its designee shall
investigate promptly to determine if abuse occurred or whether a
death was caused by abuse. If the department or its designee
determines that a law enforcement agency is conducting an
investigation of the same incident, the department or its
designee need not conduct its own investigation.
' (2) The department or its designee may enter a facility and
inspect and copy records of a facility or community program if
necessary for the completion of the investigation.
' (3) In cases in which the department, its designee or the law
enforcement agency conducting the investigation finds reasonable
cause to believe that an adult has died as a result of abuse, it
shall report that information to the appropriate medical
examiner. The medical examiner shall complete an investigation as
required under ORS chapter 146 and report the findings to the
department, its designee or the law enforcement agency.
' (4) Upon completion of an investigation conducted by a law
enforcement agency, that agency shall provide the department or
its designee with a report of its findings and supporting
evidence.
' (5) If the department or its designee determines that there
is reasonable cause to believe that abuse occurred at a facility
or that abuse was caused or aided by a person licensed by a
licensing agency to provide care or services, the department or
its designee shall immediately notify each appropriate licensing
agency and provide each licensing agency with a copy of its
investigative findings.
' (6) Upon completion of the investigation, the department or
its designee shall prepare written findings that include
recommended actions and a determination of whether protective
services are needed. The department or its designee shall provide
appropriate protective services as necessary to prevent further
abuse of the adult. Any protective services provided shall be
undertaken in a manner that is least intrusive to the adult and
provides for the greatest degree of independence that is
available within existing resources.
' (7) If the department or its designee determines that there
is reason to believe a crime has occurred, the department or its
designee shall report the findings to the appropriate law
enforcement agency. The law enforcement agency must confirm its
receipt of the report to the department or its designee { + . + }
{ - within two business days. Within three business days of
receipt of the findings, - } The agency shall notify the
department or its designee { + of its determination + }:
' (a) That there will be no criminal investigation, including
an explanation of why there will be no criminal investigation;
' (b) That the findings have been given to the district
attorney for review; or
' (c) That there will be a criminal investigation.
' (8) If a law enforcement agency gives the findings of the
department or its designee to the district attorney for review,
{ - within five business days - } the district attorney shall
notify the department or its designee that the district attorney
has received the findings and shall inform the department or its
designee whether the findings have been received for review or
for filing charges. A district attorney shall make the
determination of whether to file charges within six months of
receiving the findings of the department or its designee.
' (9) If a district attorney files charges stemming from a
report from the department or its designee and the district
attorney makes a determination not to proceed to trial, the
district attorney shall notify the department or its designee of
the determination { - within five business days - } and shall
include information explaining the basis for the determination.'.
In line 39, delete '24' and insert '19'.
In line 41, delete '430.745' and insert '430.735 to 430.765'.
In line 44, delete '25' and insert '20'.
On page 32, line 1, delete '26' and insert '21'.
Delete lines 11 through 16 and insert:
' (c) If the Department of Human Services investigates and
makes a finding of abuse arising from deliberate or other than
accidental action or inaction that is likely to cause a negative
outcome by a person with a duty of care toward a resident of a
long term care facility and if the abuse resulted in the death,
serious injury, rape or sexual abuse of a resident, the
department shall impose a civil penalty of not less than $2,500
for each occurrence of substantiated abuse, not to exceed $15,000
in any 90-day period. As used in this paragraph:
' (A) 'Negative outcome' includes serious injury, rape, sexual
abuse or death.
' (B) 'Rape' means rape in the first, second or third degree as
described in ORS 163.355, 163.365 and 163.375.
' (C) 'Serious injury' means physical injury that creates a
substantial risk of death or that causes serious and protracted
disfigurement, protracted impairment of health or protracted loss
or impairment of the function of any bodily organ.
' (D) 'Sexual abuse' means any form of nonconsensual sexual
contact, including but not limited to unwanted or inappropriate
touching, sodomy, sexual coercion, sexually explicit
photographing and sexual harassment.'.
In line 17, delete '$6,000' and insert '$7,500'.
In line 20, delete '27' and insert '22'.
In line 24, delete '28' and insert '23'.
On page 33, line 1, delete '29' and insert '24'.
In line 7, delete '30' and insert '25'.
In line 18, delete '31' and insert '26'.
In line 39, delete '32' and insert '27'.
On page 34, line 20, delete '33' and insert '28'.
In line 29, delete '34' and insert '29'.
In lines 35 through 40, delete the boldfaced material and begin
a new paragraph and insert:
' (3) If the department investigates and makes a finding of
abuse arising from deliberate or other than accidental action or
inaction that is likely to cause a negative outcome by a person
with a duty of care toward a resident of a residential facility
and if the abuse resulted in the death, serious injury, rape or
sexual abuse of a resident, the department shall impose a civil
penalty of not less than $2,500 for each occurrence of
substantiated abuse, not to exceed $15,000 in any 90-day period.
As used in this subsection:
' (a) 'Negative outcome' includes serious injury, rape, sexual
abuse or death.
' (b) 'Rape' means rape in the first, second or third degree as
described in ORS 163.355, 163.365 and 163.375.
' (c) 'Serious injury' means physical injury that creates a
substantial risk of death or that causes serious and protracted
disfigurement, protracted impairment of health or protracted loss
or impairment of the function of any bodily organ.
' (d) 'Sexual abuse' means any form of nonconsensual sexual
contact, including but not limited to unwanted or inappropriate
touching, sodomy, sexual coercion, sexually explicit
photographing and sexual harassment.'.
In line 41, delete '35' and insert '30'.
On page 35, line 21, delete '36' and insert '31'.
In line 24, restore the bracketed material and delete the
boldfaced material.
On page 37, line 2, delete 'socially dependent' and insert '
elderly'.
In line 9, delete '37' and insert '32'.
Delete lines 32 through 45.
On page 38, delete lines 1 through 36 and insert:
' { + SECTION 33. + } ORS 443.775 is amended to read:
' 443.775. (1) The Department of Human Services shall adopt
rules governing adult foster homes and the level of care provided
in such homes, including the provision of care to more than one
person with nursing care needs under specified conditions and
department approval, such as are necessary to protect the health,
safety or welfare of the residents and to provide for an
appropriate continuum of care, but shall not be inconsistent with
the residential nature of the living accommodations and the
family atmosphere of the home. The rules shall be consistent with
rules adopted by the Oregon State Board of Nursing under ORS
678.150 (9).
' (a) An exception to the limit of one resident with nursing
care needs may be granted if the provider proves to the
department by clear and convincing evidence that such an
exception will not jeopardize the care, health, safety or welfare
of the residents and that the provider is capable of meeting the
additional care needs of the new resident.
' (b) The department, and the counties acting under the
exemption granted pursuant to ORS 443.780, shall report on a
quarterly basis to the Legislative Assembly on the number of
exceptions granted during the quarter pursuant to paragraph (a)
of this subsection.
' (2) The provider may not employ a resident manager who does
not meet the classification standard for the adult foster home.
' (3) The provider shall be able to meet the night care needs
of a resident before admitting the resident. The provider shall
include night care needs in the resident's care plan.
' (4) The provider shall screen a prospective resident before
admitting the resident. The screening shall include but is not
limited to diagnosis, medications, personal care needs, nursing
care needs, night care needs, nutritional needs, activities and
lifestyle preferences. A copy of the screening shall be given to
the prospective resident or the prospective resident's
representative.
' (5) The department shall make rules to { - assure - }
{ + ensure + } that any employee who makes a complaint pursuant
to ORS 443.755 shall be protected from retaliation.
' (6) For adult foster homes in which clients reside for whom
the department pays for care, including homes in which the
provider and the resident are related, the department may require
substantial compliance with its rules relating to standards for
care of the client as a condition for paying for care.
' (7) By order the Director of Human Services may delegate
authority under this section to personnel other than of the
department.
' (8) The department may commence a suit in equity to enjoin
maintenance of an adult foster home if:
' (a) The home is operated without a valid license under this
section; or
' (b) After the license to maintain the home is ordered
suspended or revoked, a reasonable time for placement of
residents in other facilities has been allowed but such placement
has not been accomplished.
' (9) The department shall establish by rule the maximum
capacity of adult foster homes, including all nonrelated and
related persons receiving residential care and day care.
' (10) { + Except as provided in subsection (11) of this
section, + } any person who violates a provision of ORS 443.705
to 443.825 or the rules adopted thereunder may be subjected to
the imposition of a civil penalty, to be fixed by the
{ - director - } { + department + } by rule, not to exceed
$100 per violation, to a maximum of $250 or, per occurrence of
substantiated abuse, a maximum of $1,000.
' { + (11)(a) If the department determines that there is
reasonable cause to believe that abuse occurred in an adult
foster home licensed by the department and if the abuse resulted
in the death, serious injury, rape, sexual abuse or sexual
exploitation of a resident, the department shall impose a civil
penalty on the adult foster home of not less than $2,500 for each
violation.
' (b) This subsection does not apply to adult foster homes
licensed by the department to serve only persons with mental
illness or with alcohol or drug addiction.
' (c) The department shall by rule define 'serious injury, ' '
rape,' 'sexual abuse' and 'sexual exploitation' for purposes of
this subsection.
' (12) All penalties recovered pursuant to this section shall
be deposited in the Quality Care Fund established in section 1 of
this 2009 Act. + } ' .
In line 37, delete '39' and insert '34'.
On page 39, line 24, delete '40' and insert '35'.
Delete lines 28 through 45 and delete page 40 and insert:
' { + SECTION 36. + } { + The Director of Human Services may
take any action before the operative dates specified in sections
37 to 40 of this 2009 Act that is necessary to enable the
Department of Human Services to carry out, on and after the
operative dates specified in sections 37 to 40 of this 2009 Act,
the provisions of this 2009 Act. + }
' { + SECTION 37. + } { + Except as provided in section 36
of this 2009 Act, sections 1, 4, 5, 7 and 8 of this 2009 Act and
the amendments to ORS 124.050, 124.065, 124.070, 430.735,
430.743, 430.745, 441.020, 441.715, 441.745, 441.995, 443.415,
443.425, 443.430, 443.455, 443.735, 443.775, 443.790 and 443.825
by sections 9, 10, 12, 15, 16, 17, 20, 21, 22, 23, 26, 27, 28,
29, 31, 33, 34 and 35 of this 2009 Act become operative on
January 1, 2010. + }
' { + SECTION 38. + } { + Except as provided in section 36
of this 2009 Act, section 2 of this 2009 Act and the amendments
to ORS 443.740 by section 32 of this 2009 Act become operative on
January 1, 2011. + }
' { + SECTION 39. + } { + Except as provided in section 36
of this 2009 Act, section 3 of this 2009 Act becomes operative on
September 1, 2010. + }
' { + SECTION 40. + } { + Except as provided in section 36
of this 2009 Act, sections 14 and 19 of this 2009 Act and the
amendments to ORS 443.045, 443.325 and 443.730 by sections 24, 25
and 30 of this 2009 Act become operative on September 1,
2009. + }
' { + SECTION 41. + } { + The amendments to ORS 124.065,
124.070 and 430.745 by sections 11, 13 and 18 of this 2009 Act
become operative on July 1, 2015. + }
' { + SECTION 42. + } { + Section 6 of this 2009 Act applies
to employees who are hired on or after the effective date of this
2009 Act. + }
' { + SECTION 43. + } { + Section 8 of this 2009 Act is
repealed January 2, 2015. + }
' { + SECTION 44. + } { + This 2009 Act being necessary for
the immediate preservation of the public peace, health and
safety, an emergency is declared to exist, and this 2009 Act
takes effect on its passage. + } ' .
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