75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1472
B-Engrossed
House Bill 2442
Ordered by the House June 9
Including House Amendments dated April 22 and June 9
Sponsored by Representatives GELSER, TOMEI; Representatives
BUCKLEY, CAMERON, COWAN, C EDWARDS, GARRETT, GILLIAM, KAHL,
MATTHEWS, STIEGLER
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Establishes Quality Care Fund. Continuously appropriates moneys
in fund to Department of Human Services for purposes of
{ - maintaining Consumer Information Database for Developmental
Disability Services and for - } training, technical assistance,
quality improvement initiatives and licensing activities to
ensure that high standards for quality of care are met in
accordance with rules adopted by department. Requires that moneys
from certain fees and civil penalties be deposited in fund. { +
Directs department to transfer specified amount of moneys from
Quality Care Fund to General Fund on June 30, 2011. + }
{ - Requires department to create Consumer Information
Database for Developmental Disability Services as searchable
website. Requires that substantiated complaints of abuse in
residential facilities and adult foster homes be entered into
database. Requires written notification of availability of
database to residents of those facilities and homes. - }
Modifies licensing fees for residential facilities.
Establishes $2,500 civil penalty for specified types of abuse
and makes other changes to civil penalties.
Modifies definitions related to abuse of elderly persons and
persons with mental illness or developmental disabilities.
Requires department or designee of department to investigate
reports of abuse of specified persons. Makes employer immune from
civil liability for disclosing substantiated findings of abuse by
employee or former employee to prospective employer.
Establishes timelines for communications between department,
law enforcement and district attorney concerning reports of abuse
of adults. Requires district attorney to establish
multidisciplinary team for developing protocol related to
investigating and notifying persons of procedures related to
abuse of adults.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to care providers; creating new provisions; amending ORS
124.050, 124.065, 124.070, 430.735, 430.743, 430.745, 441.020,
441.715, 441.745, 441.995, 443.045, 443.325, 443.415, 443.425,
443.430, 443.455, 443.730, 443.735, 443.775, 443.790 and
443.825; appropriating money; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + The Quality Care Fund is established in the
State Treasury, separate and distinct from the General Fund.
Interest earned by the Quality Care Fund shall be credited to the
Quality Care Fund. Moneys in the fund are continuously
appropriated to the Department of Human Services for training,
technical assistance, quality improvement initiatives and
licensing activities to ensure that high standards for quality of
care are met in accordance with rules adopted by the department
with respect to:
(1) A long term care facility as defined in ORS 442.015;
(2) A residential facility as defined in ORS 443.400, including
but not limited to an assisted living facility; and
(3) An adult foster home as defined in ORS 443.705. + }
SECTION 2. { + Notwithstanding section 1 of this 2009 Act, on
June 30, 2011, the Department of Human Services shall transfer
$150,000 from the Quality Care Fund established in section 1 of
this 2009 Act to the General Fund for general governmental
expenses. + }
{ + NOTE: + } Section 3 was deleted by amendment. Subsequent
sections were not renumbered.
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. + }
SECTION 5. { + (1) If the Department of Human Services
substantiates an allegation of abuse that occurred in a facility,
the department shall immediately notify the facility of its
findings.
(2) Upon receipt of the notice described in subsection (1) of
this section, a facility shall provide written notice of the
findings to the individual found to have committed abuse,
residents of the facility, the residents' case managers and the
residents' guardians.
(3) An application for employment at a facility must inquire
whether the applicant has been found to have committed abuse.
(4) As used in this section:
(a) 'Abuse' has the meaning given that term in ORS 124.050 and
430.735.
(b) 'Facility' means:
(A) A residential facility as defined in ORS 443.400; or
(B) An adult foster home as defined in ORS 443.705. + }
SECTION 6. { + (1) The Department of Human Services shall
complete a criminal records check under ORS 181.534 on an
employee of a residential facility, adult foster home, in-home
care agency or home health agency, and on any individual who is
paid directly or indirectly with public funds who has or will
have contact with a recipient of home health, in-home care or
support services or a resident of an adult foster home or a
residential facility.
(2) Public funds may not be used to support, in whole or in
part, the employment in any capacity having contact with a
recipient of home health, in-home care or support services or a
resident of a residential facility or an adult foster home, of an
individual who has been convicted:
(a) Of a crime described in ORS 163.095, 163.115, 163.118,
163.125, 163.145, 163.149, 163.165, 163.175, 163.185, 163.187,
163.200, 163.205, 163.225, 163.235, 163.263, 163.264, 163.266,
163.275, 163.465, 163.467, 163.535, 163.537, 163.689, 163.700,
164.055, 164.057, 164.098, 164.125 (5)(c) or (d), 164.215,
164.225, 164.325, 164.377 (2) or (3), 164.405, 164.415, 165.022,
165.032, 165.800, 165.803, 167.012, 167.017, 167.054 or 167.057;
(b) Of a crime listed in ORS 181.594;
(c) In the last 10 years, of a crime involving the delivery or
manufacture of a controlled substance;
(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. + }
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.
(2) The teams shall develop a written protocol for immediate
investigation of and notification procedures for cases of abuse
of adults and for interviewing the victims. Each team also shall
develop written agreements signed by member agencies that are
represented on the team that specify:
(a) The role of each member agency;
(b) Procedures to be followed to assess risks to the adult;
(c) Guidelines for timely communication between member
agencies; and
(d) Guidelines for completion of responsibilities by member
agencies.
(3) Each team member shall have access to training in risk
assessment, dynamics of abuse of adults and legally sound
interview and investigatory techniques.
(4) All investigations of abuse of adults by the department or
its designee and by law enforcement shall be carried out in a
manner consistent with the protocols and procedures called for in
this section.
(5) All information obtained by the team members in the
exercise of their duties is confidential.
(6) Each team shall develop and implement procedures for
evaluating and reporting compliance of member agencies with the
protocols and procedures required under this section.
(7) Each team shall annually report to the Department of
Justice and the Oregon Criminal Justice Commission the number of:
(a) Substantiated allegations of abuse of adults in the county
for the preceding 12 months.
(b) Substantiated allegations of abuse referred to law
enforcement because there was reasonable cause found that a crime
had been committed.
(c) Allegations of abuse that were not investigated by law
enforcement.
(d) Allegations of abuse that led to criminal charges.
(e) Allegations of abuse that led to prosecution.
(f) Allegations of abuse that led to conviction. + }
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.
SECTION 19. { + A person who has personal knowledge that an
employee or former employee of the person was found by the
Department of Human Services or a law enforcement agency to have
committed abuse under ORS 430.735 to 430.765, 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 20. ORS 441.020 is amended to read:
441.020. (1) Licenses for health care facilities including long
term care facilities, as defined in ORS 442.015, shall be
obtained from the Department of Human Services.
(2) Applications shall be upon such forms and shall contain
such information as the department may reasonably require, which
may include affirmative evidence of ability to comply with such
reasonable standards and rules as may lawfully be prescribed
under ORS 441.055.
(3) Each application shall be accompanied by the license fee.
If the license is denied, the fee shall be refunded to the
applicant. { + Except as provided in subsection (13) of this
section, + } if the license is issued, the fee shall be paid into
the State Treasury to the credit of the Department of Human
Services Account for carrying out the functions under ORS 441.015
to 441.063 and 431.607 to 431.619.
(4) Except as otherwise provided in subsection (5) of this
section, for hospitals with:
(a) Fewer than 26 beds, the annual license fee shall be $750.
(b) Twenty-six beds or more but fewer than 50 beds, the annual
license fee shall be $1,000.
(c) Fifty or more beds but fewer than 100 beds, the annual
license fee shall be $1,900.
(d) One hundred beds or more but fewer than 200 beds, the
annual license fee shall be $2,900.
(e) Two hundred or more beds, the annual license fee shall be
$3,400.
(5) For long term care facilities with:
{ - (a) Fewer than 16 beds, the annual license fee shall be
up to $120. - }
{ - (b) Sixteen beds or more but fewer than 50 beds, the
annual license fee shall be up to $175. - }
{ - (c) Fifty beds or more but fewer than 100 beds, the
annual license fee shall be up to $350. - }
{ - (d) One hundred beds or more but fewer than 200 beds, the
annual license fee shall be up to $450. - }
{ - (e) Two hundred beds or more, the annual license fee
shall be up to $580. - }
{ + (a) One to 15 beds, the annual license fee shall be $180.
(b) Sixteen to 49 beds, the annual license fee shall be $260.
(c) Fifty to 99 beds, the annual license fee shall be $520.
(d) One hundred to 150 beds, the annual license fee shall be
$670.
(e) More than 150 beds, the annual license fee shall be
$750. + }
(6) For special inpatient care facilities with:
(a) Fewer than 26 beds, the annual license fee shall be $750.
(b) Twenty-six beds or more but fewer than 50 beds, the annual
license fee shall be $1,000.
(c) Fifty beds or more but fewer than 100 beds, the annual
license fee shall be $1,900.
(d) One hundred beds or more but fewer than 200 beds, the
annual license fee shall be $2,900.
(e) Two hundred beds or more, the annual license fee shall be
$3,400.
(7) For ambulatory surgical centers, the annual license fee
shall be $1,000.
(8) For birthing centers, the annual license fee shall be $250.
(9) For outpatient renal dialysis facilities, the annual
license fee shall be $1,500.
(10) During the time the licenses remain in force { + , + }
holders
{ - thereof - } are not required to pay inspection fees to any
county, city or other municipality.
(11) Any health care facility license may be indorsed to permit
operation at more than one location. { - In such case - }
{ + If so, + } the applicable license fee shall be the sum of
the license fees
{ - which - } { + that + } would be applicable if each
location were separately licensed.
(12) Licenses for health maintenance organizations shall be
obtained from the Director of the Department of Consumer and
Business Services pursuant to ORS 731.072.
{ + (13) All moneys received pursuant to subsection (5) of
this section shall be deposited in the Quality Care Fund
established in section 1 of this 2009 Act. + }
SECTION 21. ORS 441.715 is amended to read:
441.715. (1)(a) After public hearing, the Director of Human
Services by rule shall adopt objective criteria for establishing
the civil penalty that may be imposed under ORS 441.710. However,
the civil penalty may not exceed $500 for each violation, except
as otherwise provided in { - ORS 441.637 and 441.995 - }
{ + this subsection and ORS 441.995 or as otherwise required by
federal law + }.
(b) Notwithstanding the limitations on the civil penalty in
paragraph (a) of this subsection, for any violation involving
direct resident care or feeding, an adequate staff to resident
ratio, sanitation involving direct resident care or a violation
of ORS 441.605 or rules required to be adopted under ORS 441.610,
a penalty may be imposed for each day the violation occurs in an
amount not to exceed $500 per day { + or as otherwise required
by federal law + }.
{ + (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. + }
(2) The penalties assessed under subsection (1) { + (a) or
(b) + } of this section shall not exceed { - $6,000 - }
{ + $7,500 + } in the aggregate or as otherwise required by
federal law with respect to a single long term care facility
within any 90-day period.
SECTION 22. ORS 441.745 is amended to read:
441.745. All penalties recovered under ORS 441.710 to 441.740
{ + and 441.995 + } shall be { - paid into the State Treasury
and credited to the General Fund - } { + deposited in the
Quality Care Fund established in section 1 of this 2009 Act + }.
SECTION 23. ORS 441.995 is amended to read:
441.995. (1) In adopting criteria for establishing the amount
of civil penalties for violations of ORS 441.630 to 441.680, the
Department of Human Services shall consider:
(a) Any prior violations of laws or rules pertaining to
facilities;
(b) The financial benefits, if any, realized by the facility as
a result of the violation;
(c) The gravity of the violation, including the actual or
potential threat to the health, safety and well-being of one or
more residents;
(d) The severity of the actual or potential harm caused by the
violation; and
(e) The facility's past history of correcting violations and
preventing the recurrence of violations.
(2) The department may impose a civil penalty for abuse in
accordance with rules adopted under ORS 441.637 (1).
{ - Facilities assessed civil penalties for abuse shall be
entitled to a contested case hearing under ORS chapter 183. - }
(3) If the department finds the facility is responsible for
abuse and if the abuse resulted in a resident's death or serious
injury, the department shall impose a civil penalty of not less
than $500 nor more than $1,000 for each violation, or as
otherwise required by federal law { + or ORS 441.715 (1)(c),
443.455 or 443.775 + }.
(4) Nothing in ORS 441.637 and this section is intended to
expand, replace or supersede the department's authority to impose
civil penalties pursuant to ORS 441.710 or 441.715 for violations
that do not constitute abuse.
{ + (5) Facilities assessed civil penalties under this
section are entitled to a contested case hearing under ORS
chapter 183. + }
SECTION 24. ORS 443.045 is amended to read:
443.045. (1) The Department of Human Services may deny, suspend
or revoke the license of any home health agency for failure to
comply with ORS 443.005 to 443.095 { + or section 6 of this 2009
Act + } or with the rules of the department as authorized by ORS
443.085.
(2) License denials, suspensions and revocations, adoption of
rules and judicial review thereof shall be in accordance with ORS
chapter 183.
SECTION 25. ORS 443.325 is amended to read:
443.325. The Department of Human Services may impose a civil
penalty in the manner provided in ORS 183.745 and deny, suspend
or revoke the license of any in-home care agency licensed under
ORS 443.315 for failure to comply with ORS 443.305 to 443.350 or
with rules adopted thereunder. { + The department may deny,
suspend or revoke the license of any in-home care agency licensed
under ORS 443.315 for failure to comply with section 6 of this
2009 Act. + } A failure to comply with ORS 443.305 to 443.350
includes, but is not limited to:
(1) Failure to provide a written disclosure statement to the
client or the client's representative prior to in-home care
services being rendered;
(2) Failure to provide the contracted in-home care services; or
(3) Failure to correct deficiencies identified during a
department inspection.
SECTION 26. ORS 443.415 is amended to read:
443.415. (1) Applications for licensure to maintain and operate
a residential facility shall be made to the Department of Human
Services on forms provided for that purpose by the department.
Each application shall be accompanied by a fee { - of $60 for
facilities defined in ORS 443.400 (5), (7) and (9) and a fee of
$30 for homes defined in ORS 443.400 (8) and (10) - } . No fee is
required of any governmentally operated residential facility.
{ + (2) The fee required under subsection (1) of this section
for facilities:
(a) Defined in ORS 443.400 (7) and (9), shall be $60.
(b) Defined in ORS 443.400 (8) and (10), shall be $30.
(c) Defined in ORS 443.400 (5) with:
(A) One to 15 beds, shall be $360.
(B) Sixteen to 49 beds, shall be $520.
(C) Fifty to 99 beds, shall be $1,040.
(D) One hundred to 150 beds, shall be $1,340.
(E) More than 150 beds, shall be $1,500. + }
{ - (2) - } { + (3) + } Upon receipt of an application and
fee, the department shall conduct an investigation. The
department shall issue a license to any applicant for operation
of a residential facility in compliance with ORS 443.400 to
443.455 and the rules of the director. Licensure may be denied
when a residential facility is not in compliance with ORS 443.400
to 443.455 or the rules of the Director of Human Services.
Licensure shall be denied if the State Fire Marshal or other
authority has given notice of noncompliance of facilities defined
in ORS 443.400 (5), (7) and (9) pursuant to ORS 479.220.
SECTION 27. ORS 443.425 is amended to read:
443.425. (1) Licensure under ORS 443.415 is effective for two
years from the date of issue unless sooner revoked. Each license
shall state the name of the person operating the residential
facility; the name of the person who owns the facility; the
address of the premises to which the license applies and the
maximum number of residents to be maintained in such residential
facility at any time whether the residential facility is licensed
as a residential training facility, a residential treatment
facility, a residential care facility; a residential training
home or residential treatment home and such other information as
the Department of Human Services considers necessary.
(2) A license is renewable upon submission of an application to
the department and payment of a fee { - of $60 for facilities
licensed under ORS 443.400 (5), (7) and (9) and a fee of $30 for
homes licensed under ORS 443.400 (8) and (10) - } . No fee shall
be required of a governmentally operated residential facility.
Filing of an application for renewal before the date of
expiration of a license extends the effective date of expiration
of the license until the department has acted upon such
application. The department shall refuse to renew a license if
the facility is not substantially in compliance with all
applicable laws and rules, or if the State Fire Marshal or the
authorized representative thereof has given notice of
noncompliance of facilities under ORS 443.400 (5), (7) and (9)
pursuant to ORS 479.220.
{ + (3) The biennial fee required under subsection (2) of
this section for facilities:
(a) Defined in ORS 443.400 (7) and (9), shall be $60.
(b) Defined in ORS 443.400 (8) and (10), shall be $30.
(c) Defined in ORS 443.400 (5) with:
(A) One to 15 beds, shall be $360.
(B) Sixteen to 49 beds, shall be $520.
(C) Fifty to 99 beds, shall be $1,040.
(D) One hundred to 150 beds, shall be $1,340.
(E) More than 150 beds, shall be $1,500. + }
SECTION 28. ORS 443.430 is amended to read:
443.430. (1) { - No - } { + A + } license under ORS 443.415
is { + not + } transferable or applicable to any location,
residential facility or management other than that indicated on
the application for licensure.
(2) { + Except as provided in subsection (3) of this
section, + } all moneys collected under ORS 443.400 to 443.455
shall be deposited in a special account in the General Fund, and
are appropriated continuously for payment of expenses incurred by
the Department of Human Services in the administration of ORS
443.400 to 443.455.
{ + (3) All moneys collected from a residential care facility
under ORS 443.415, 443.425 or 443.455 shall be deposited in the
Quality Care Fund established in section 1 of this 2009 Act. + }
SECTION 29. ORS 443.455 is amended to read:
443.455. { + (1) + } For purposes of imposing civil penalties,
residential facilities approved under ORS 443.400 to 443.455
{ - are considered to be long-term care facilities, - }
{ + shall be + } subject to ORS 441.705 to 441.745.
{ - However, - } The { - Director - } { + Department + } of
Human Services shall exercise the powers conferred under ORS
441.705 to 441.745.
{ + (2) + } The { - director - } { + department + } shall
by rule prescribe a schedule of penalties appropriate to
residential facilities licensed under ORS 443.400 to 443.455.
{ + (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. + }
SECTION 30. ORS 443.730 is amended to read:
443.730. (1) The provider shall furnish the names, addresses
and telephone numbers of the substitute caregivers employed or
used by the provider to the Department of Human Services upon the
request of the department.
(2) The department shall require the provider to furnish
information describing the planned operation of the adult foster
home, including the use of substitute caregivers and other staff,
as part of the license application.
(3) The provider shall not allow a substitute caregiver or
other caregiver to provide care to a resident unless the
following standards are met and documented:
(a) The department has completed a criminal records check
{ - for the State of Oregon and has completed or initiated a
national criminal records check, if appropriate under ORS 443.735
(3), for the person - } { + in accordance with section 6 of
this 2009 Act + }. The department shall adopt rules to provide
for the expedited completion of a criminal records check for the
State of Oregon when requested by a licensed provider because of
an immediate staffing need.
(b) The substitute caregiver has successfully completed the
training required by the department.
(c) The caregiver is able to understand and communicate in oral
and written English.
(d) The provider has oriented the caregiver to the residents in
the adult foster home, their care needs and the physical
characteristics of the home.
(e) The provider has trained the caregiver to meet the routine
and emergency needs of the residents.
(4) The department shall establish educational requirements for
substitute caregivers and other caregivers designed to impart the
practical knowledge and skills necessary to maintain the health,
safety and welfare of residents. The training shall include a
test established by the department to be completed by the
caregiver. The test shall be completed by the caregiver without
the help of any other person.
SECTION 31. ORS 443.735 is amended to read:
443.735. (1) Applications for a license to maintain and operate
an adult foster home shall be made on forms provided by the
Department of Human Services. Each application shall be
accompanied by a fee of $20 per bed requested for licensing.
(2) Upon receipt of an application and fee, the department
shall conduct an investigation.
(3) The department shall not issue an initial license unless:
(a) The applicant and adult foster home are in compliance with
ORS 443.705 to 443.825 and the rules of the department;
(b) The department has completed an inspection of the adult
foster home;
(c) The department has completed a criminal records check under
ORS 181.534 on the applicant and any person, other than a
resident, 16 years of age or older who will be residing in the
adult foster home. The criminal records check shall be conducted
in accordance with rules adopted under ORS 181.534;
(d) The department has checked the record of sanctions
available, including the list of nursing assistants who have been
found responsible for abuse and whose names have been added to
the registry under ORS 441.678; and
(e) The applicant has demonstrated to the department the
financial ability and resources necessary to operate the adult
foster home. The department shall adopt rules as the department
deems appropriate that establish the financial standards an
applicant must meet to qualify for issuance of a license and that
protect financial information from public disclosure. The
demonstration of financial ability under this paragraph shall
include, but need not be limited to, providing the department
with a list of any unsatisfied judgments, pending litigation and
unpaid taxes and notifying the department regarding whether the
applicant is in bankruptcy. If the applicant is unable to
demonstrate the financial ability and resources required by this
paragraph, the department may require the applicant to furnish a
financial guarantee as a condition of initial licensure.
(4) The department may not renew a license under this section
unless:
(a) The applicant and the adult foster home are in compliance
with ORS 443.705 to 443.825 and the rules of the department;
(b) The department has completed an inspection of the adult
foster home;
(c) The department has completed a criminal records check under
ORS 181.534 on the applicant and any person, other than a
resident, 16 years of age or older who will be residing in the
adult foster home. The criminal records check under this
paragraph shall be conducted in accordance with rules adopted
under ORS 181.534; and
(d) The department has checked the record of sanctions
available, including the list of nursing assistants who have been
found responsible for abuse and whose names have been added to
the registry under ORS 441.678.
(5)(a) In seeking an initial license and renewal of a license
when an adult foster home has been licensed for less than 24
months, the burden of proof shall be upon the provider and the
adult foster home to establish compliance with ORS 443.705 to
443.825 and the rules of the department.
(b) In proceedings for renewal of a license when an adult
foster home has been licensed for at least 24 continuous months,
the burden of proof shall be upon the department to establish
noncompliance with ORS 443.705 to 443.825 and the rules of the
department.
(6)(a) Persons who have been convicted of one or more crimes
that, as determined by rules of the department, are substantially
related to the qualifications, functions or duties of a provider,
resident manager, substitute caregiver or other household member
of an adult foster home shall be prohibited from operating,
working in or residing in an adult foster home.
(b) The department shall adopt rules that distinguish the
criminal convictions and types of abuse that permanently prohibit
a person from operating, working in or living in an adult foster
home from the convictions and types of abuse that do not
permanently prohibit the person from operating, working in or
living in an adult foster home.
(c) A provider may not hire, retain in employment or allow to
live in an adult foster home, other than as a resident, any
person who the provider knows has been convicted of a
disqualifying crime or has been found responsible for a
disqualifying type of abuse.
(7) A license under ORS 443.725 is effective for one year from
the date of issue unless sooner revoked. Each license shall state
the name of the resident manager of the adult foster home, the
names of all providers who own the adult foster home, the address
of the premises to which the license applies, the maximum number
of residents and the classification of the home. If, during the
period covered by the license, a resident manager changes, the
provider must within 15 days request modification of the license.
The request must be accompanied by a fee of $10.
(8) No license under ORS 443.725 is transferable or applicable
to any location, persons operating the adult foster home or the
person owning the adult foster home other than that indicated on
the application for licensing.
(9) The department shall not issue a license to operate an
additional adult foster home to a provider unless the provider
has demonstrated the qualifications and capacity to operate the
provider's existing licensed home or homes and has demonstrated
the ability to provide care to the residents of those homes that
is adequate and substantially free from abuse and neglect.
(10) { + (a) + } All moneys collected under ORS 443.725 to
443.780 { + from adult foster homes that are licensed to serve
persons with mental, emotional or behavioral disturbances or
alcohol or drug dependence + } shall be deposited in a special
account in the General Fund, and are appropriated continuously
for payment of expenses incurred by the Department of Human
Services.
{ + (b) All moneys collected under ORS 443.725 to 443.780
from adult foster homes licensed to serve persons who are
elderly, have physical disabilities or have developmental
disabilities shall be deposited in the Quality Care Fund
established in section 1 of this 2009 Act. + }
(11) Notwithstanding any other provision of this section or ORS
443.725 or 443.738, the department may issue a 60-day provisional
license to a qualified person if the department determines that
an emergency situation exists after being notified that the
licensed provider of an adult foster home is no longer overseeing
operation of the adult foster home.
{ + NOTE: + } Section 32 was deleted by amendment. Subsequent
sections were not renumbered.
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. + }
SECTION 34. ORS 443.790 is amended to read:
443.790. (1) In addition to any other liability or penalty
provided by law, the Director of Human Services may impose a
civil penalty on a person for any of the following:
(a) Violation of any of the terms or conditions of a license
issued under ORS 443.735.
(b) Violation of any rule or general order of the Department of
Human Services that pertains to a facility.
(c) Violation of any final order of the director that pertains
specifically to the facility owned or operated by the person
incurring the penalty.
(d) Violation of ORS 443.745 or of rules required to be adopted
under ORS 443.775.
(2) The director shall impose a civil penalty { - of - } not
to exceed $500 { + , unless otherwise required by law, + } on any
adult foster home for falsifying resident or facility records or
causing another to do so.
(3) The director shall impose a civil penalty of $250 on a
provider who violates ORS 443.725 (3).
(4) The director shall impose a civil penalty of not less than
$250 nor more than $500 { + , unless otherwise required by
law, + } on a provider who admits a resident knowing that the
resident's care needs exceed the license classification of the
provider if the admission places the resident or other residents
at grave risk of harm.
(5)(a) In every case other than those involving the health,
safety or welfare of a resident, the director shall prescribe a
reasonable time for elimination of a violation but except as
provided in paragraph (b) of this subsection shall not prescribe
a period to exceed 30 days after notice of the violation.
(b) The director may approve a reasonable amount of time in
excess of 30 days if correction of the violation within 30 days
is determined to be impossible.
(6) In imposing a civil penalty, the director shall consider
the following factors:
(a) The past history of the person incurring a penalty in
taking all feasible steps or procedures necessary or appropriate
to correct any violation.
(b) Any prior violations of statutes, rules or orders
pertaining to facilities.
(c) The economic and financial conditions of the person
incurring the penalty.
(d) The immediacy and extent to which the violation threatens
or threatened the health, safety or welfare of one or more
residents.
(7) The department shall adopt rules establishing objective
criteria for the imposition and amount of civil penalties under
this section.
SECTION 35. ORS 443.825 is amended to read:
443.825. All penalties recovered under ORS 443.790 to 443.815
shall be { - paid into the State Treasury and credited to the
General Fund and are available for general governmental
expenses - } { + deposited in the Quality Care Fund established
in section 1 of this 2009 Act + }.
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. + }
{ + NOTE: + } Sections 38 and 39 were deleted by amendment.
Subsequent sections were not renumbered.
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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