Current through Register Vol. 63, No. 3, March 1, 2024
(1) ABUSE IS
PROHIBITED. The facility employees, agents, and licensee must not permit, aid,
or engage in abuse of residents under their care.
(2) REPORTERS AND MANDATORY REPORTERS. All
persons are encouraged to report abuse and suspected abuse. The following
persons are required to immediately report abuse and suspected abuse to The
Department or law enforcement agency:
(a)
Physicians, including any resident physician or intern;
(b) Licensed practical or registered
nurses;
(c) Employees of the
Department, Area Agency on Aging, county health department, or community mental
health program;
(d) Nursing
facility employees or any individual who contracts to provide services in a
nursing facility;
(e) Peace
officers;
(f) Clergy;
(g) Licensed social workers;
(h) Physical, speech, or occupational
therapists; and
(i) Family members
of a resident, guardians, or legal counsel for a resident.
(3) FACILITY REPORTING OF ABUSE OR SUSPECTED
ABUSE.
(a) The nursing facility administration
must immediately notify the Department, local designee of the Department, or
local law enforcement agency of any incident of abuse or suspected abuse.
Physical injury of an unknown cause must be reported to the Department as
suspected abuse, unless an immediate facility investigation reasonably
concludes the physical injury is not the result of abuse.
(b) The local law enforcement agency must be
called first when the suspected abuse is believed to be a crime (for example,
rape, murder, assault, burglary, kidnapping, or theft of controlled
substances).
(c) The local law
enforcement agency must be called if the offices of the Department or designee
are closed and there are no arrangements for after hours
investigation.
(4) ABUSE
COMPLAINT. The oral or written abuse complaint must include the following
information when available;
(a) Names,
addresses, and phone numbers of alleged perpetrators, residents, and
witnesses;
(b) The nature and
extent of the abuse or suspected abuse, including any evidence of previous
abuse;
(c) Any explanation given
for the abuse or suspected abuse; and
(d) Any other information the person making
the report believes might be helpful in establishing the circumstances
surrounding the abuse and the identity of the perpetrator.
(5) PRIVILEGE. In the case of abuse of a
resident, the physician-patient privilege, the husband-wife privilege, and the
privileges extended under ORS
40.225
to
40.295
shall not be a ground for excluding evidence regarding the abuse, or the cause
thereof, in any judicial proceeding resulting from an abuse complaint made
pursuant to this section.
(6)
PROHIBITION OF RETALIATION OR INTERFERENCE WITH DISCLOSURE OF INFORMATION.
(a) The facility licensee, employees, and
agents must not retaliate in any way against anyone who participates in the
making of an abuse complaint, including, but not limited to, restricting
otherwise lawful access to the facility or to any resident or, if an employee,
to dismissal or harassment.
(b) The
facility licensee, employees, and agents must not retaliate against any
resident who is alleged to be a victim of abuse.
(c) Anyone who, in good faith, reports abuse
or suspected abuse shall have immunity from any liability that might otherwise
be incurred or imposed with respect to the making or content of an abuse
complaint. Any such person shall have the same immunity with respect to
participating in judicial or administrative proceedings relating to the
complaint.
(d) The facility shall
not interfere with a good faith disclosure of information by an employee or
volunteer concerning the abuse or other action affecting the welfare of a
resident in the facility. The information shared may include the reporting of
violations of licensing or certification requirements, criminal activity at the
facility, violations of state or federal laws or any practice that threatens
the health and safety of a resident of the facility to:
(A) The Long-Term Care Ombudsman, the Oregon
Department of Human Services, the Centers for Medicare and Medicaid Services, a
law enforcement agency or other entity with legal or regulatory authority over
the facility; or
(B) A family
member, guardian, friend, or other person who is acting on behalf of the
resident.
(e) Unless
performed with the intent to comply with state or federal law, including but
not limited to protecting residents' rights or carrying out a facility's
policies and procedures that are consistent with state and federal law, it is
interference with the disclosure of information as described in subsection (d)
if a facility licensee, employee, or agent:
(A) Asks or requires an employee or volunteer
to sign a nondisclosure or similar agreement prohibiting the employee or
volunteer from disclosing the information;
(B) Trains an employee or volunteer not to
disclose the information; or
(C)
Takes actions or communicates to the employee or volunteer that the employee or
volunteer may not disclose the information.
(f) This rule does not authorize the
disclosure of protected health information, as defined in ORS
192.556,
other than as is permitted by the federal Health Insurance Portability and
Accountability Act privacy regulations, 45 C.F.R. parts 160 and 164, ORS
192.553
to
192.581
or by other state or federal laws limiting the disclosure of health
information.
(7)
INVESTIGATION BY FACILITY. In addition to immediately reporting abuse or
suspected abuse to the Department or law enforcement agency, the facility must
promptly investigate all reports of abuse and suspected abuse and must take
measures necessary to protect residents from abuse and prevent recurrence of
abuse.
Statutory/Other Authority: ORS
410.070
&
441.055
Statutes/Other Implemented: ORS 441.055,
441.615,
441.630,
441.637,
441.640,
441.645
& 441.655
